Copyright Licensing - Copyright Licensing Firms India

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Introduction

The Copyright Act and rules made thereunder contain elaborate provisions regarding licensing of Copyright. Licensing under the copyright law can be either voluntary or non-voluntary. Licensing can be done not only with respect to the existing work but also with respect to the future works.

Voluntary Licensing

The owner of the Copyright in any existing or future work may grant any interest in the right by license. As regards the future works the license shall take effect only when the works comes into existence. For a license to be valid it must be in writing and signed by either the owner or his duly authorized agent.

Compulsory Licensing

Compulsory Licensing can be invoked under certain circumstances with respect to both published works and unpublished works. Compulsory licenses can also be obtained for the purposes of production and publication of the translation of works. The procedure for obtaining compulsory licensing with respect to the Indian works and foreign works is different.

Published Works
With respect to the Indian works published or performed in public, compulsory licenses can be obtained by making a complaint to the Copyright Board on the ground that the owner has:

Refused to re-publish or allow the republication of the work or has refused to allow the performance of the work in public and by reason of such refusal the work is withheld from the public.
Refused to allow the communication of the work to the public by broadcast of the work or work in the sound recording on such terms, which the complainant considers reasonable.

Procedure
Before granting license, the Copyright Board shall give an opportunity of hearing to the Copyright owner. If the Board is satisfied that the reason for refusal is not reasonable, it shall grant license subject to payment of such conditions and such compensation as it deems fit.

Unpublished Works
Compulsory licenses can also be obtained with respect to the unpublished works by making an application to the Copyright board, if the author of the work:

s dead; or
Is unknown; or
Cannot be traced; or
Cannot be found

Before making an application in respect of an unpublished work the applicant is required to publish his proposal in one issue of a daily newspaper in the English language having circulation in major part of the country and also in one issue of any daily newspaper in that language. The procedure for license for unpublished work is same as that for translation of work and is being discussed later.

Licenses for Translation of Works

An application for production and publication of a literary and dramatic in any language can be made after a period of seven years from the date of first publication of the work. Where the translation of a foreign work in any language, in general use in India, is required for the purposes of teaching, scholarship or research, an application for license can be made after the expiry of three years form the date of first publication of the work.

Where such a translation has to be made in any language not in general use in India, an application can be made after the expiry of one year from the date of publication of the work. In this case the license shall be granted subject to the conditions that the copies of the translation shall not be exported outside India and that every copy shall contain the notice in the language of translation that the copy is available for distribution only in India.

In order to successfully prosecute the application for the grant of license, the applicant must establish the following facts:

The translation of the work in the language mentioned in the application has not been published by the owner or his authorized agent within a period of seven years, three years or one year as the case may or the copies are out of print.
The applicant had requested to the owner for authorization to produce and publish the work but was denied the authorization or was unable to find the owner after due diligence.
Where the applicant was not able to locate the owner, he had sent a copy of the request for such authorization to the published via registered airmail.
A period of six months has elapsed in case of an application for the translation of the work in any language and a period of nine months in case of translation of any foreign work in any language in use in India has elapsed since making of the application and the translation of the work in that language has not been published by the owner within that period.
The applicant is competent to produce and publish a correct translation of the work and posses the means to pay to the owner of the copyright the royalties payable to him.
The author has not withdrawn from circulation copies of the work.

Procedure
The application for license for translation-

Has to be made in Form II in triplicate and should be accompanied by the prescribed fee
Has to be with respect to one work only and for translation of that work in one language only.

Notice of Application
After receiving the application for license, the Copyright Board shall give a notice of application in the official gazette and in one or two newspapers (optional) and also send a copy of the application to the owner. The notice shall contain the following particulars:
the date of the application;

The name, address and nationality of the applicant;
Particulars of the work that has to be translated;
The date and country of the first publication of the work;
The name, address and nationality of the owner of the copyright as stated in the application
The language in which the work is to be translated; and
The registration number of the work in the Register of Copyrights, if any

Hearing
The copyright Board after giving an opportunity of hearing to the applicant and also to any person claiming interest in the copyright shall decide whether to grant or not to grant the license to the applicant.

Particulars of the license
The license shall contain the following particulars:

Period of license
The language of translation
The rate at which the royalties is to be paid to the owner
The person or persons to whom the royalties are payable.

Determination of Royalty
The copyright Board shall determine the royalty keeping in mind the following considerations:

The proposed retail price of a copy of the translation
Prevailing standards of royalties
Other relevant matters

Cancellation of License

The Copyright Board can cancel the license granted on any of the following grounds:

The licensee has failed to produce and publish the translation of the work within the specified period or the extended period.
The license was obtained by fraud or misrepresentation as to any essential fact.
The licensee has contravened any of the terms and conditions of the license.