Role of Collective Management Organizations for Protection of Performers' Right in Music Industry:...

The Journal of World Intellectual Property (2012) Vol. 15, no. 2, pp. 155–170

doi: 10.1111/j.1747-1796.2012.00436.x

Role of Collective Management Organizationsfor Protection of Performers’ Right in MusicIndustry: In the Era of Digitalization

Aurobinda Panda and Atul PatelKIIT School of Law, KIIT University

Collective Management Organizations (CMOs) (i.e. organizations that specialize in administering “copyrightsheld by a large number of owners”) play a fundamental role in the copyright system. It is not appropriate toseparate copyright and performer’s right for the purpose of having a separate legal regime for the protectionof rights of the performers to be more specific in the music industry. In this paper Part I is concerned withthe history and development of CMOs and the internal efficiency of collecting societies in the field of music.Part II deals with International developments in this area of intellectual property. It has gained so much tradeinterest that both WIPO and WTO stand together on the issues of protection and have compelled the member-countries to bring their domestic laws into conformity with an international commitment that facilitates trade.In Part III of this paper, an attempt has been made by the authors to highlight and identify the protection regime,loopholes and remedies in the Indian scenario for the performer’s rights under the Copyright Act, 1957. Finally, inPart IV the authors believe that the international community should come up with a collective rights organizationwhich could bring uniformity, fairness, and efficiency to the process of transferring digital media in the era ofdigitalization.

Keywords Collective Management Organizations (CMOs); Indian scenario; performer’s rights; WorldIntellectual Property Organization (WIPO)

Part I

History and Development

Copyright was originally formulated in an age when mass production was unknown and the geo-graphic distribution of the copyrighted material was limited.1 In those circumstances since authorswere able to enforce their copyrights individually, there was little need for the collective managementof copyright. Since the first copyright act passed in England, the Statute of Anne in 1710,2 the needfor collective management of copyright has been confronted by technological innovations. Now inthe era of digitalization with the development of internet and its related technological innovation thecollective management organizations play an important role for the protection of copyright work byindividual authors.

Copyright comprises two main sets of rights: the economic rights and the moral rights. Theeconomic rights are the rights of reproduction, broadcasting, public performance, adaptation, trans-lation, public recitation, public display, distribution, and so on. The moral rights include the author’sright to object to any distortion, mutilation or other modification of his work that might be prejudi-cial to his honor or reputation.3 On the other hand a collective management organization has threeimportant functions namely social, cultural and economic function.

Need of Collective Management Organizations (CMOs)CMOs have emerged as technological developments have made it harder for individuals to monitorand enforce their rights.4 CMOs are organizations that specialize on administering “copyrights held

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by a large number of owners”. Generally CMO is a body created by private agreements or bycopyright law. The members of a CMO, license their copyrights to the society, which in turn licensesthe copyrighted material and collects and distributes royalties on behalf of the copyright owners. Theactivity of such society were limited to copyright subsisting in literary, dramatic and musical workwhich can be performed in public.5

CMOs act on behalf of their members, which may be authors or performers. It issues copyrightlicenses to users authorizing the use of the works of the members. Other forms of CMOs includerights clearance centers and one-stop shops. One-stop shops are a coalition of collecting societies andrights clearance centers offering a centralized source for users to obtain licenses. They have becomepopular in response to multimedia productions requiring users to obtain multiple licenses for relevantcopyright and related rights.6

Whereas rights provided by copyright are to the authors, performer’s right or related rightsor neighboring right also includes the other categories of ownership rights namely performers,the producers of phonograms and broadcasting organizations. Performing rights are normally theresponsibility of CMOs to look after so they are also known as Performing Rights Organizations(PROs). Performing rights are normally paid by the broadcaster not the production company. Eachsociety collects annual fees from broadcasters, live music venues, websites and other parties whoperform music publicly. That income is then divided up among composers and music publisherswhose music has been used. The interplay between copyright owners and related rights owners canbest be described as follows:

A musician (related rights owner) performs a musical work written by a composer (copy-right owner); an actor (performers rights owner) performs a role in a play written by aplaywright (copyright owner); producers of phonograms-or more commonly “the recordindustry” (performers rights owners)-records and produce songs and music written byauthors and composers (copyright owners), played by musicians or sung by perform-ers (performers rights owners); broadcasting organizations (performers rights owners)broadcast works and phonograms on their stations.7

The end users of the above musical work listening to it has to get license from all the abovementioned copyright owners and performers rights owners; due to these difficulties a single licensecovering on all available copyright works of a particular type guarantees legal security and this istypically supplied by the CMOs as a blanket license. Thus, the blanket license reduces many kindsof transaction costs—the costs of contracting, cost of price setting, search and information costs forboth right holders and for end users. However the blanket license, though administratively efficient,is not economically utile and furthermore, it would not be feasible without monopoly control over abundle of rights to the relevant repertoire that can be efficiently administered together.8

History and Development of CMOsOn one evening in March 1847, Ernest Bourget was sitting at the terrace of the cafe-theater andenjoying a glass of wine. While drinking, Ernest Bourget heard the performance of his composition“Les Bluettes” in the cafe. Considering that he had no reason to allow the performance of his workwithout compensation, he offered to authorize the owner of the cafe to perform his work in returnfor his drink. The owner refused, Ernest Bourget sued him in front of the Tribunal de Commercede la Seine and won the case.9 The story would have remained an anecdote if it had not led to thecreation in 1851 of the Societe des Auteurs, Compositeurs et Editeurs de Musique, better known asSACEM, whose main mission is to monitor the works of its members and distribute the amounts

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Protection of Performers’ Right in Music Industry Aurobinda Panda and Atul Patel

received from the exploitation of these works among these members. The concept of performingrights organizations was born.10

Performing rights organizations quickly spread around Europe: The Societa Italiana degli Autoried Editori (SIAE) was created in 1882, the Anstalt fur musikalisches Auffuhrungsrecht in Germanyin 1903. In 1911, SACEM created an office in the United States in an attempt to enlist AmericanComposers. Americans however had no desire to enroll in a French society and, on a rainy Octobernight in 1913, nine composers and music publishers led by Nathan Burkan created the AmericanSociety of Composers, Authors and Publishers, better known as ASCAP.11

In order to coordinate their work, 18 performing rights organizations founded the InternationalConfederation of Authors and Composers (CISAC) in 1926, whose model contract has been usedsince its adoption in 1936 for most if not all reciprocal agreements concluded among the performingrights organizations. Eighty-five years after its creation, CISAC now has 210 members from over 109countries.12

The main international agreement in the field of related rights is the International Conventionfor the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (theRome Convention). This Convention was adopted in 1961 and is jointly administered by the UnitedNations Educational, Scientific and Cultural Organization (UNESCO), the International LabourOrganization (ILO) and WIPO. This Convention grants shorter terms of protection for related rightowners than the terms of protection granted by the Berne Convention. According to Article 14 ofthe Rome Convention:

The term of protection to be granted under this Convention shall last at least until theend of a period of twenty years computed from the end of the year in which:

(a) The fixation was made-for phonograms and for performances incorporated therein;

(b) The performance took place-for performances not incorporated in phonograms;

(c) The broadcast took place-for broadcasts.13

Also recently an important role is played by WPPT and WCT which were developed in 1996from the parent act of WIPO for the protection and promotion of a performer’s right by compellingthe member countries to bring their domestic laws in conformity with international commitment thatfacilitates trade.14 Protection was also offered by the Dramatic and Musical Performers ProtectionAct 1925, which offered some limited sanctions to these creative groups further strengthened bythe Dramatic and Musical Performers Protection Act 1958, Performers Protection Act 1963 andPerformers Protection Act 1972. The role of international framework has been discussed in muchgreater details in Part II.

In India, the organizations which look after the Copyright Collecting Society and PerformingRight Society are The Indian Reprographic Rights Organization (IRRO), Phonographic PerformanceLimited (India) (PPL) and Indian Performing Rights Society Limited (IPRS). The Indian context ofCMOs’ function, protection loopholes and remedies are dealt precisely in Part III keeping in viewthe Copyright Act 1957 (Amended, 1999).

Present Scenario of CMOs and Feature NeedWith the rapid growth of the internet and mobile technology, the market for legitimate music deliveryservice has literally exploded in recent years. Since online music services are accessible across the globe,the need for multi-territorial licensing throughout the world is more acute than ever.15 Accessingmusic over the internet has become a significant activity for many internet users. Although there islittle agreement on which new models will emerge as predominant in the music industry, internet

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music transmissions are likely to reshape the ways in which music is both created and delivered toconsumers. Possible models include the following:

1. Providing music in encrypted or “watermarked” formats, in order to limit or detect unauthorizedtransmissions.

2. Making music available on a “pay per listen” or subscription basis.3. Using revenue from advertising (either displayed on a music website or embedded in a music file

and displayed or heard when the file is played back) to support music dissemination.4. Giving away digital music in order to attract customers for related services and merchandise.16

Copyright law in the digital era should attempt to facilitate the development of legitimatedissemination of music over the internet because this promises to significantly increase public accessto copyrighted music. Making music available for purchase and delivery online means that consumersare not limited to choosing among the items that a physical record store can stock or a mail-ordercatalog can list. “Webcasting” can provide listeners with a far greater variety of music than cantraditional broadcasters. Because the web does not have the spectrum scarcity problems of broadcastradio, many more transmitters can play music for the public, giving listeners a wider selection. Over-the-air broadcasters typically need to appeal to a large audience to generate significant advertisingrevenues; on the other hand, Webcasters may be able to target much smaller niche audiences, thusoffering music that would not generally be accessible through radio broadcasting. The internet mayvastly improve the ease with which a listener can locate a particular piece of music by facilitatingsearches of enormous collections of songs to find those that match a specific lyrical or melodicphrase. In addition, internet dissemination may create entirely new music markets. In the past, tohear a particular song when one wanted to, one had to either buy a record of the song (usuallyavailable only as part of an album, requiring one to pay for several other recordings possibly notwanted) or wait until a radio station played the song, if it ever did. With the internet, however,one might pay a small amount to hear the song once, on demand. Copyright laws, which have afundamental goal of the accessibility of creative works, should help, rather than hinder, circulationof music over the internet due to its potential for increasing the availability of music to users.17

These functions and protections are provided by the CMOs depending upon the domestic laws andagreements between them. The part IV specifically deals with these issues and the future possibilities.

Part II

International Development in the Area of Performers Right

National Control of Different Country With Regards to the Role of CCSThis part explains about the national situation of different countries namely Australia, Canada,China, the United Kingdom and the United States with regards to the role of CCS to provide theprotection and how differently they function from country to country. The Indian scenario will bedealt in greater details in part III.

1. AustraliaIn Australia, there are a number of CMOs which administer different rights for various copyrightowners—they represent writers and book publishers, composers and music publishers, recordcompanies, visual artists and film makers. The CMOs which administer the public performancerights for composers and producers are the Australasian Performing Right Association (APRA)and the Phonographic Performance Company of Australia (PPCA).18

APRA is a nonprofit association of authors, composers and music publishers. It was establishedin 1926 and is the oldest CMO in Australia. It has over 20,000 members in Australia and New

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Zealand. Most composers are members of APRA. APRA administers rights which exist within themusical and literary works of its members. Members assign the public performance, broadcastingand diffusion rights in relation to all of their compositions to APRA.19

The PPCA is also a nonprofit organization. PPCA’s members are the owners or controllersof copyright in sound recordings and music videos. The members represent around 1,300 labelswhich together control nearly all sound recordings which are commercially released in Australia.The PPCA was established in 1969 by record companies to act as their agent for the purposes ofissuing licenses to cover the broadcasting and public performance of sound recordings.20

2. CanadaIn Canada, control by the State of Collective Management Organizations is not new, though itsform and scope vary greatly from country to country. In Canada, following the establishing ofthe Canadian Performing Right Society (CPRS) and investigations first by Mr. Justice Erwing in1932 and the Parker Commission in 1935, it has been recognized, at least with respect to musicperforming rights, that the activities of Collective Management Organizations may affect thepublic interest.21 As CJ Duff wrote in 1943:

It is of first importance, in my opinion, to take notice of this recognition by thelegislature of the fact that these dealers in performing rights (i.e., the societies) whichrights are the creature of statute, are engaged in a trade which is affected with a publicinterest and may, therefore, conformably to a universally accepted canon, be properlysubjected to public regulation.22

In fact, Canada was the first country to impose a statutory mechanism for the fixation of licensefees, in 1936.

3. ChinaIn China, Collective administration of copyright started relatively late and developed slowly.Since 1992 only one Organization for Collective Administration of Copyright (OCAC) has beenestablished in China, namely the Music Copyright Society of China (MCSC) dealing with collec-tive administration of copyrights in musical works; two other organizations, the China LiteraryWorks Copyright Society for collective administration of copyrights in literary works and theChina Audio-Visual Products Copyright Society for collective administration of copyrights inaudio-visual products are actually in the phase of preparation. The Music Copyright Society ofChina (MCSC) was established in 1992 further to a joint initiative of the National CopyrightAdministration of China (NCAC) and the Musicians Society of China. The members of MCSCare mostly composers and lyricists, but there are also some audio-visual producers and creativesocieties. MCSC is dealing with the administration of copyright in musical works, in particularthe performing rights (including live performance and performing of recorded music), broadcast-ing rights and mechanical reproduction rights (including making of programs for radio and TV,background music, audio-visual products and downloading from the internet etc.).23

4. United KingdomIn the United Kingdom, CMOs emerged as one of the prominent mechanisms of monitoringinfringement, and management and enforcement of copyrights which have greatly expandedscope.24 The Performing Rights Society (PRS) set up in 1914 is an example of a CMO based in theUnited Kingdom whose membership comprises composers and publishers. PRS is the main bodythat collectively enforces rights, organizes the requisite licensing schemes for different categoriesof users, and sets rates for the latter. This accumulation of rights forces users to respect copyrightbut has also been perceived to deprive them of the opportunity to object to licensing fees for asingle piece of music. It is argued that because a user who believes a fee is too high may choose



to play a cheaper work, the user is less likely to contest the rates set by a given CMO. Not onlydo CMOs have market power to set high prices, but they have also been reported to discriminateamong commercial users and demands that performances be of a particular kind (e.g. live ratherthan recorded).25 The issue that CMOs face today, specifically in the EU, is how to persuadecompetition authorities that their economic dominance, derived from the drawing together ofrights in the works sought by users, remains a justified market necessity.26

5. United States of America

In the United States, the US Copyright Act does not regulate formation of and participation byrights holders in a collective scheme. Though the Copyright Act is basically silent on this point, theFairness in Music Licensing Act of 1998 amended section 101 of the Act by adding a definition of“performing rights society”, which reads:

A ‘performing rights society’ is an association, corporation, or other entity that licensesthe public performance of non-dramatic musical works on behalf of copyright ownersof such works, such as the American Society of Composers, Authors and Publishers(ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.

This definition is only used in the context of the interactive transmission right. Section 114(d)(3) (C) of the US Act reads as follows:

Notwithstanding the grant of an exclusive or nonexclusive license of the right of publicperformance under section 106(6), an interactive service may not publicly perform asound recording unless a license has been granted for the public performance of anycopyrighted musical work contained in the sound recording: Provided, That such licenseto publicly perform the copyrighted musical work may be granted either by a performingrights society representing the copyright owner or by the copyright owner.

Where a compulsory license applies, the Copyright Office can establish Copyright ArbitrationRoyalty Panels (CARPs) to determine “reasonable terms and rates of royalty payments”. In fact,there is no regulation concerning formation or governance of CMOs as such. They can be for-profit,though that is the exception.27

Development of Copyright in International Music IndustryMusic copyright has its root in Europe during the eighteenth century. From the 1880s to the 1930s, thedevelopment of copyright was driven by the interest of songwriters and composers. The internationalrecognition of author’s rights was reflected in the Berne Convention for Protection of Literary andArtistic Works in 1886 (WIPO, 1996). During the 1900s, technological revolution has created aneconomic environment in the music industry. Sound recording, radio and television broadcastingshad become new powerful commercial means to communicate musical works to the public. Sincethe Berne Convention emphasizes mainly on authorship without the interests of other contributorswho are involved in the creative process, the 1961 Rome Convention for Protection of Performers,Producer of Phonograms and Broadcasting Organizations was established. After that, the issue ofpiracy has been raised quickly in the music industry due to the advancement of technology.28

The rise of piracy coincided with the globalization of the music and record industry. Both theUnited States and the European Commission had exerted pressure on Asian countries to reform theircopyright system. The attempt to incorporate the trade-related aspects of copyright protection wasmade in the Uruguay Round of the GATT (General Agreement on Tariff and Trade) treaty, whichlater on became TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement under theWorld Trade Organization (WTO). As members of WTO, many countries in Asia had to reform their

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copyright regimes to conform to the minimum requirement of TRIPS agreement. Although piracyseems to obtain more attention at the international level, composer’s rights should not be overlookedbecause they can directly benefit the local music industry when the system is properly implemented.29

The above diagram lays a flow chart30 how the composer’s rights, collective rights in musicalindustry are exploited and the royalties are collected by distributing license among the members ofthe collective administering organization commonly known as CMOs in music industry.

Trade Perspective of Neighboring RightsThere is an international trade perspective of neighbouring rights as well. This is so because aftercoming into force of the WTO administered agreements, ‘trade and intellectual property’ have showna direct nexus and it could be seen that in appropriate cases this nexus might show directly pro-portionate or inversely relationship between “trade” and “intellectual property”. As stated by now,neighboring rights have been considered as a facet of Copyright and legal recognition of a copyrighthas three consequences. Firstly, it establishes a barrier to the free flow of trade (in information). Thiscould be in the sense when a legal regime puts a check on the trade of pirated information material.Secondly, the “ownership” of an intellectual product and thirdly, the corresponding right to income



from that product in much the same way as ownership of something physical entitles one to itsbenefits. The third consequence is the fundamental nature of private property, and is appropriate toa capitalist economy. This ownership imposes restrictions on the free availability of the product toothers, so that they have to pay the price demanded by the owner in order to obtain it. Copyrightownership is important in determining the level of “output” of the good in question, and thereforethe extent of its dissemination. From the international perspective, this ownership determines thegains from cross-border flows to the concerned countries. Finally, copyright bestows upon the creatorof a work a moral right to be associated with a work (or to remain anonymous) and to maintainthe integrity of a work. Moral rights remain with the author, subject to waiver, even after the eco-nomic rights are transferred. This pedagogy of logical derivation is equally applicable to neighboringrights.31

Present Status of International Protection of Performers RightThere is now a well-established global network CMOs, and they are strongly represented by non-governmental organizations such as the International Confederation of Societies of Authors andComposers (CISAC), the International Federation of Reprographic Reproduction Organizations(IFRRO), and at the European level, the Association of European Performers Organizations (AEPO),to name but a few. As part of its international development cooperation activities, WIPO is workingclosely with the above organizations, and also with others such as the International Federation ofActors (FIA), the International Federation of Musicians (FIM) and the International Federation ofthe Phonographic Industry (IFPI). The aim is to assist developing countries, upon their request, inestablishing CMOs, and to strengthen existing organizations to ensure that they can be fully efficientand effective, among other things in their response to the challenges of the digital environment. Suchactivities are carried out under the WIPO Cooperation for Development Program.32 Still a lot isneeded to be done for the protection on neighboring rights as the technological development occurs.Laws at the national level as well as at the international level need to be harmonizing in order tomake the implementation.

By taking all those factors into consideration, the success of the composer’s rights collectivemanagement regime in the world depends on the synergy among all relevant elements (shown inthe figure below). These elements can be grouped into three levels; namely national, industrial andindividual levels. The national level encompasses a wide range of implementation and mechanism atnational policy which includes legal framework, enforcement, and other forms of government inter-ventions and monitoring. At the industry level, the factors mainly involve elements of structure andpractices of music industry and operations of the collecting organization. Lastly, the individual levelincludes factors at individual and small groups such as song writers/composers and music users. Thiscertainly involves such elements as knowledge, attitude and perception. The synergy of all three levelsshould assure a proper development of the regime for the benefit of the nation’s social and economicwelfare.33

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Part III

Indian Scenario

Indian Development of CMOsThe Indian history of copyright is a response of law to technological developments. Since 1971, whenthe Berne Convention was last amended and the Rome Convention (International Convention forthe Protection of Performers, Producers of Phonograms and Broadcasting Organizations) in 1961,there have been sweeping technological changes. The advent of digital technologies has posed seriouschallenges to the copyright regime. To examine the impact of the new technologies on copyright andneighboring rights, the WIPO had set up two Committees of Experts (Committee of Experts on aPossible Protocol to the Berne Convention in September 1991 and the Committee of Experts on aPossible Instrument for Protection of the Rights of Performers and Producers of Phonograms inSeptember 1992).34

It could be seen that just as the concept of copyright had been established in response to the adventof printing press technology, so it may also appear that the concept of neighboring rights emerged inline with rapid developments in various information technologies. Even in countries where there is noconcept of neighboring rights as such, technological adaptations of copyright works such as soundrecordings and broadcasts are granted copyright protection with some limitations on the copyright.As it becomes easy and cheap, with the aid of information technologies like audio/video recordersand computers, to make mechanical reproductions of performances by popular performers of musicalor dramatic works, there are also growing demands for protecting performances by performers whoadd original and creative contribution to the existing works.35

Although Indian Copyright Act, 1957 has identified performers right in section 38 yet moralrights of the performer are not explicitly incorporated. Moral right of a performer states that aperformer has the moral right to claim, when reasonably practicable, to be identified as the performerof his performance and to prohibit any distortion, mutilation or other modification of his performancethat would be prejudicial to his reputation.36

While the statutory scheme is quite facilitative for the functioning of CMOs, in practice thenumber is very less. At present, there are three registered copyright organizations. These are—the Society for Copyright Regulations of Indian Producers of Films and Television (SCRIPT) forcinematography films; Indian Performing Rights Society Limited (IPRS) for musical works andPhonographic Performance Limited (PPL) for sound recordings.37 These societies, particularly PPLand IPRS, have been quite active in antipiracy work. The PPL has even set up a special antipiracycell under a retired Director General of Police, and this cell has been working in tandem with thepolice. One prominent CMO is IPRS. This was incorporated in Maharashtra on 23 August 1969,as a company limited by guarantee, for the purpose of carrying on business in India of issuing orgranting licenses for performance in public of all existing and future Indian musical works in whichcopyright subsists in India. The IPRS has among its members the composers of musical works,authors of literary and dramatic works and artistes. It has litigated the famous performer’s rightscase38 vindicating the claims of its members with partial success.39

Protection Regime, Loopholes and RemediesPrecisely speaking no legal regime can protect a right in the absolute sense and this fits in case ofCopyright-neighboring right protection as well. As a sequel to this some limitations do exist onthe protection regime of neighboring rights, which has to be accepted as an integral part of thecopyright system because such limitations are recognized in positive law as users’ legitimate interestsin making certain unauthorized uses of copyrighted material.40 Such legitimate interests may includethe protection of the users’ fundamental rights, the promotion of free flow of information and the



dissemination of knowledge. However, one must remember that the notion of “legitimate interest” or“public interest” is mostly a matter of national policy: what is in the public interest in one country, isnot necessarily the same in another. Generally speaking Chapter VIII of the Indian Copyright Act,1957 encompasses rights as well as protection paraphernalia of neighboring rights in India. Section37 ensures Broadcasts reproduction right however section 38 defines and explains Performer’s right.Section 39 of the Act identifies those instances when an act shall not amount to infringement ofneighboring rights (Broadcasters’ and Performer’s rights). Section 39A,41 that came in force on 10May1995 by the amendment Act of 1994 makes applicable other specific provisions of the CopyrightAct, 1957 which is as follows: Before this, it could be pertinently noted that Section 53A has notbeen made available to those holding neighboring rights, which creates a presumption that in casesof neighboring rights either there is no possibility of resale or such works have no economic value sothat owners could get something during resale.42

The loopholes that Indian Copyright Law should focus on, which could give impetus to protectionregime for the neighboring rights are:

� Recognition of rights.� Remedies and sanctions.� Technological measures and rights management.� Co-operation between public authorities and between such authorities and rights owners.� Co-operation between member states and ratification of treaties.

The Remedies available under the Indian context are as follows:Under sections 55 and 63 to 70 of the Copyright Act, 1957 the remedies can be divided into the

following two categories:

1. Civil remedies – Under civil remedies, the owner of the copyright or his assignee or his exclusivelicensee or a legatee may obtain injunction or claim damages.

2. Criminal remedies – In addition to civil remedy, the Copyright Act enables the owner of thecopyright to take criminal proceedings against the infringer. The offence of infringement ofcopyright is punishable with imprisonment which may extend from a minimum period of 6 monthsto a maximum period of 3 years or with a fine of the order of Rs 50,000/- to Rs 2,00,000/-.

Functions of Copyright Societies in IndiaThe Copyright Act after the amendment in 1994 extended the scope of operation as also it changedthe nomenclature from Performing Rights Society to Copyright Society. Before that, articles 33 to36 dealt with the Performers Rights Society.

The Copyright Societies are discharging the following functions:

1. Grant license of the copyright in the work for reproduction, performances or communication topublic.

2. Locate instances of infringement of copyright and initiate legal action against the infringers.

Sections 33 to 36A of the Copyright Act, 1957 (Amended, 1999) are the relevant provisionsdealing with the Copyright Society.43

Indian Law Consistent With International TreatiesIndia has accepted the international obligations in regard to copyright protection. India is a memberstate of the following international conventions on Copyright and Neighbouring Rights:44

1. Berne Convention, 1886 for the protection of Literary and Artistic Works since 1 April 1928.45

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2. Universal Copyright Convention (UCC), under the auspices of UNESCO, since 20 October,1957.46

3. Convention for the Protection of Producers of Phonograms against Unauthorized Duplication oftheir Phonograms, since 12 February 1975.47

4. Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties and Ad-ditional Protocol, since 31 October 1983, with some reservations.

5. WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference on 20December 1996.

6. WIPO Copyright Treaty, adopted by the Diplomatic Conference on 20 December 1996.

At the international level, related rights are conferred by the International Convention for theProtection of Performers, Producers of Phonograms and Broadcasting Organizations, better knownas the “Rome Convention”. This Convention was adopted in 1961. It is jointly administered by theUnited Nations Educational, Scientific and Cultural Organization (UNESCO), the InternationalLabour Organization (ILO) and WIPO. Copyright and neighbouring rights now form part of theTRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, 1994, which came intoforce on 1 January 1995.48

The membership of these Conventions and Agreements ensures that Indian copyright holdersget rights in those other countries who are members of these treaties. India is a member of theWorld Intellectual Property Organization (WIPO), a specialized agency of the United Nations,which deals with copyright and other intellectual property rights, and plays an important role in allits deliberations.49

Part IV

Development Needed in the Era of Digitalization and Conclusion

Digitalization Era and Feature NeedsIn the online world of the new millennium, the management of rights is taking on a new dimension.Protected works are now digitized, compressed, downloaded, copied and distributed on the internetto any place in the world. The expanding power of this network allows mass storage and onlinedelivery of protected material. The possibility of downloading the contents of a book, or to listen toand record music from cyberspace is now a reality. While this presents immeasurable opportunities,there are also many challenges for rights’ owners, users and CMOs.50

Many CMOs have developed systems for online delivery of information relating to the licensingof works and content, the monitoring of uses, and the collection and distribution of remuneration forvarious categories of works within the digital environment. These digital information systems, whichdepend on the development and use of unique numbering systems and codes that are embedded indigital carriers such as CDs, films, allow works, the rights’ owners and the digital carriers themselvesto be properly identified and provide other relevant information. Adequate legal protection is neededto prevent acts intended to circumvent technical protection measures, and also to insure against theremoval or alteration of any elements of the digital information systems or other such practices.51

In the international era two treaties were concluded in 1996, under the auspices of WIPO, torespond to the challenges of protecting and managing copyright and related rights in the digitalage. Known as “the internet treaties”, the WIPO Copyright Treaty and the WIPO Performancesand Phonograms Treaty (WCT and WPPT, respectively) deal among other things with obligationsconcerning technological protection measures and rights management information in the digital en-vironment. They ensure that the owners of rights are protected when their works are disseminated



on the internet; they also contain provisions requiring national legislators to provide effective pro-tection for technological measures, by prohibiting the import, manufacture and distribution of illicittools or material designed to neutralize technological protection measures and also outlawing actsdetrimental to rights management information systems.

Possible International Collective Rights Management Organization (PICRMO)An attempt should be made by international organizations to come out with an International CMO.Let say this collective rights organization, the Possible International Collective Rights ManagementOrganization (PICRMO), should attempt to fill the demand for licensed content of currently em-ployed methods of digital entertainment distribution to reach businesses and end users throughoutthe world. A central licensing grantor, capable of worldwide licensing after processing a simpleapplication, will be useful in several ways.52

Firstly, by creating a blanket rights organization capable of granting licenses to cover all terri-tories, the PICRMO would provide access to music for users throughout the world, especially userswithin the under-served nations outside of the major market.53

Secondly, an international compulsory-licensing scheme that allows nonmajor market users todistribute digital music can also prevent piracy in the major markets. As internet use spreads amongthe nonmajor-market countries, the demand for digital entertainment will grow as well. If music filesare not available to people living in these countries at a reasonable price—which is determined byconsidering what the local market can bear—users will probably turn to piracy networks to gainaccess to music files.

Thirdly, peer-to-peer networks work through a series of connections that allow users to makecopies of files on other user’s system. Current versions of such software allow the user to connectdirectly to a large number of users simultaneously, thereby increasing connection speed and reducingdownloading time. As users from other countries, especially those who are not offered viable enter-tainment solutions, turn to these networks, the variety in the network’s catalogs will increase, anddownload times will shorten further.

The WIPO and WTP should stand together to allow fair use by the educational institution toaccess literary work, small and developing countries to know about more copyrighted work and forthe owners and performers rights holder to get some royalties in return which will further encouragethem to do more creative and original work to contribute to the society at large.

Conclusion

CMOs are recognized worldwide as necessary for the efficient administration of copyrights andneighboring rights. In relation to users, a blanket license overcomes the complexity of fragmentedcopyrights aggravated by the duration of copyrights for life plus 50 to 70 years.

The PICRMO could establish a new age of digital distribution by removing the barriers tonegotiating licenses and the cost of maintaining inventory. By allowing every entrepreneur in the worldto open his or her own digital record store, the PICRMO could take advantage of the decentralizednature of the internet and serve as a catalyst for niche market stores specializing in a particular genre,or for the development of innovative business models.

Last but obvious, it appears from the perusal of Indian Copyright Act, 1957 that the area ofneighboring rights needs enhanced protection under the Indian legal regime of Copyright and relatedrights. It is manifest that proposed WIPO treaty on webcasting would definitely influence the Indianlegal regime on parameters of neighboring rights protection and Indian law shall accommodate thechanges perpetuated by technological development through passage of time.

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About the Authors

Aurobinda Panda is pursuing his B.B.A.LL.B (IPR Hons.) Degree as a part of Five Year IntegratedCourse (FYIC) from KIIT School of Law, KIIT University, Bhubaneswar, Orissa, India one ofthe best ranked law institute in Eastern India. Participated in COGNITIO’09 – National LegalWriting Competition by writing a paper on “The impact of GST (Goods and Services Tax) on theIndian Tax Scene” and in 2010 participated in Licito Concurso‘10’-Indian Law Journal a paper on“Competition Law Competition issues affecting the energy sector in India”. He has author a paperon “Intellectual Property Law & Competition Law” for which he was called upon as a presenter topresent the above paper at the 4th International Law and Trade Conference (ILTC 2010), 5th LegalSecurities and Privacy Issues in IT (LSPI) Conference and 1st International Private Law Conference(IPLC 2010) held at Barcelona, Spain, the same had also publish in Private Law: Rights, Duties& Conflicts and Journal of International Commercial Law & Technology. Recently a paper named“Various Techniques of Intellectual Property Valuation” which was been selected and he was calledupon to present the paper at 2nd South-Asia Pacific Innovation Conference held at Tokyo, Japan inMarch 2011. This paper also been selected in KHOJ Journal of Indian Management Research andPractices, MIT School of Management-Post Graduate Research Center, Pune had been publishedin the September Edition of 2011. His areas of interest are IPR Laws, Competition Law, CorporateLaw, Accounts. KIIT School of Law, KIIT University, Campus XVI, Patia, Bhubaneswar 751024.Odisha, India; e-mail: [email protected]

Atul Patel is pursuing his B.B.A.LL.B (Hons.IPR) degree as a part of Five Year IntegratedCourse (FYIC) from KIIT Law School, KIIT University, Bhubaneswar, Orissa, India one of thebest ranked law institute in Eastern India. Participated in COGNITIO’09 – National Legal Writ-ing Competition by writing a paper on “The impact of GST (Goods and Services Tax) on theIndian Tax Scene” and in 2010 participated in Licito Concurso‘10’-Indian Law Journal a paperon “Competition Law Competition issues affecting the energy sector in India”. He has authoredthe paper “Intellectual Property Law & Competition Law” which was published in InternationalPrivate Law Journal: Right, Duties and Conflicts and in Journal of International Commercial lawand Technology for which he was called upon as a presenter to present the above paper at the 4thInternational Law and Trade Conference (ILTC 2010), 5th Legal Securities and Privacy Issues in IT(LSPI) Conference and 1st International Private Law Conference (IPLC 2010) held at Barcelona,His areas of interest are IPR Laws, Competition Law, Corporate Law and Accounts. Recently hispaper named “Various Techniques of Intellectual Property Valuation” which was been selected andhe was called upon to present the paper at 2nd South-Asia Pacific Innovation Conference held atTokyo, Japan in March 2011. This paper also been selected in MITSOM-PGRC Journal MIT Schoolof Management-Post Graduate Research Center, Pune had been published in the September Editionof 2011. KIIT School of Law, KIIT University, Campus XVI, Patia, Bhubaneswar 751024. Odisha,India; e-mail: [email protected]

Notes

The authors express their gratitude to Prof. Dr. N. K. Chakrabarti, Director, KIIT School of Law, Bhubaneswar,Odisha, India, for providing logistical support and Dr. Tabrez Ahmad, Professor of Law, KIIT School of Lawfor reviewing the work and providing valuable knowledge.

1 Collective Management of Copyright and Related Rights, World Intellectual Property Organization, see〈http://www.wipo.int/about-ip/en/about_collective_mngt.html#P46_4989〉 [Accessed March 2011].



2 See, http://www.copyrighthistory.com/anne.html. [Accessed March 2011]. While the Statute of Anne isoften said to have been enacted in 1709, a careful reading of the Act on this website clearly shows that theAct actually was actually enacted in 1710.

3 See note- 1.4 Thorpe, J., p. 1.5 Narayanan, P.6 See note – 2.7 Tejan-Cole, A., p. 4.8 Towse, R., and Handke, C., p. 8.9 Gillieron, P., p. 9.

10 Actually, the SACEM was not the first collective society in history. In 1791, Beaumarchais had foundedthe Societe des Auteurs et Compositeurs Dramatiques (SACD) to represent the interests of dramaticauthors and composers to theater owners with respect to performances of their works. In 1837, Honorede Balzac, Alexandre Dumas, Georges Sand and Victor Hugo had created the Societe des Gens de Lettresde France (SGDL). The latter one however protects the interests of writers without being a collectivesociety.

11 Ibid.12 Ibid. p. 10.13 See note – 8, pp. 4–5.14 Garnett, K., Davies, G., and Harbottle, G.15 Guibault, L. and Gompel, S. van, p. 2.16 William Fisher, The Digital Dilemma: Intellectual Property in the Information Age (National Academy

Press, 2000); William Fisher, Digital Music: Problems and Possibilities, see, http://www. law. harvard. edu/Academic_ Affairs/coursepages/tfisher/Music.html [Accessed February 2011] p. 76–95.

17 Reese, R. A., p. 3–4.18 The public performance right, see, http://www.aph.gov.au/house/committee/laca/Copyrigh/chap2.pdf

[Accessed January 2011] p. 13.19 Ibid.20 Ibid, pp. 14–15.21 Gervais, J. D., p. 46.22 Vigneux v. CPRS (1943) 3 Fox Pat. C. 77, at pp. 80–81.23 Xu, C., p. 3.24 Bhat, I. P., see, http://nopr.niscair.res.in/bitstream/123456789/4190/1/JIPR%2014(3)%20214-225.pdf

[Accessed March 2011] p. 6.25 Gervais, J. D., p. 149.26 Thakker, K. (2009/2010).27 See note – 23, pp. 47–48.28 Distabanjong, S., p. 3–4.29 Ibid.30 Ibid, p. 8.31 Pandey, S., p. 4.32 See note – 1.33 See note – 30, p. 21.34 See note – 33, pp. 6–7.35 Ibid.36 Ibid.37 See note – 25, p. 457.

168



38 IPR Society v EIMP Association AIR 1977 SC 1443.39 See note – 27, p. 6.40 Guibault, L.41 Other provisions applying to broadcast reproduction right and performer’s right: Sections 18, 19, 30,

53, 55, 58, 64, 65 and 66 shall, with any necessary adaptations and modifications, apply in relation tothe broadcast reproduction right in any broadcast and the performer’s right in any performance as theyapply in relation to copyright in a work: PROVIDED that where copyright or performer’s right subsistsin respect of any work or performance that has been broadcast, no license to reproduce such broadcast,shall take effect without the consent of the owner of rights or performer, as the case may be, or both ofthem.

42 See note – 33, p. 11.43 Dr. Wadehra, B. L.44 See note – 33, p. 3.45 The convention concluded in 1886 was revised in 1896, 1908, 1928, 1948, 1967, 1971 and was amended in

1979.46 The UCC was adopted at Geneva in 1952, came into force from 16 September, 1955 and was revised at

Paris in July 1971.47 The convention was adopted at Geneva in October 1971 and came into force from 18 April, 1973.48 See note – 33, p. 4.49 See note – 33, p. 4.50 See note – 1.51 See note – 1.52 Maloney, J., p. 4.53 Ibid.

References

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IPR Society v EIMP Association AIR, SC 1443, 1977.Maloney, J. (2006) A Collective Rights for the Digital Age [online]. Available at <http://www.law.

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ble Solutions [online]. Available at <http://www.papers.ssrn.com/sol3/pap ers.cfm?abstract_id=276333>

[Accessed January 2011].Tejan-Cole, A. (2003) Collective Management of Copyright and Related Rights [online]. Available at

<http://www.belipo.bz/e_lib rary/articles/collectivemanagementofcopyright.pdf> [Accessed January2011].

Thakker, K. (2009/2010) The Conflicts Between E.U. Collecting Societies & E.C. Competition Law’, ColumbiaJournal of European Law, 16(1), 121–9.

The Public Performance Right (1998) [online]. Commonwealth of Australia. Available at <http://www.aph.gov.au/house/committee/laca/Copyrigh/chap2.pdf> [Accessed January 2011].

Thorpe, J. (1998) Collective Licensing of Copyright Options for Competitive Reforms [online]. Available at<http://www.epress.anu.ed u.au/agenda/005/02/5-2-A-7.pdf> [Accessed January 2011].

Towse, R., and Handke, C. (2007) Regulating Copyright Collecting Societies: Current Policy In Europe [on-line]. Available at <http://www.gbz.hu-berl in.de/downloads/pdf/SERCIACPapers/towsehandke.pdf>[Accessed January 2011].

Wadehra, B. L. (2009) Law Relating to Intellectual Property, 4th edition. Universal Law Publishing Co., Delhi,India, p.351.

Xu, C. (2005) Collective Administration of Copyright in China [online]. Available at <http://www.portal.unesco.org/cu lture/en/files/28721/11513331721xu_chao_en.pdf/xu_chao_en.pdf> [AccessedMarch 2011].

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