TRADEMARKS - Meaning, History, Registration , Assignment & Licensing

 TRADEMARKS

Meaning

A trademark or trademark is a distinctive sign or indicator of some kind that is used by an individual, business organization or other legal entity to uniquely IDENTIFY the source of its products and/or services to consumers and to distinguish its products or services from those of other entities

A trademark is a device that can take almost any form, as long as it is capable of identifying and distinguishing specific goods or services.

A trademark is a word, symbol, slogan, design, sound, colour etc. or combination thereof that serves to identify the source of goods or services and distinguish them from others.

A trademark may be designated by the following symbols

™ (for an UNREGISTERED TRADEMARK, that is, a mark used to promote or brand goods) 

SM (for an unregistered SERVICE MARK, that is, a mark used to promote or brand services) 

® (for a REGISTERED TRADEMARK) 

Trademark Law

Indian trademark law provides protection to trademarks statutorily under the Trademark Act, 1999 and also under the common law remedy of Passing-Off; 

Passing off is a common law tort that can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill; 

Statutory protection of trademark is administered by the Controller General Of Patents, Designs and Trade Marks, a government agency which reports to the Department of Industrial Policy and Promotion(DIPP), under the Ministry of Commerce and Industry.

The law of trademark deals with the mechanism of registration, protection of trademark and prevention of fraudulent trademark; 

The law also provides for the rights acquired by registration of a trademark, modes of transfer and assignment of the rights, nature of infringements, penalties for such infringement and remedies available to the owner in case of such infringement.

History

The law of trademark in India before 1940 was based on the common law principles of passing off and equity as followed in England before the enactment of the first Registration Act, 1875; 

The first statutory law related to trademarks in India was the Trade Marks Act, 1940 which had similar provision to the UK Trade Marks Act, 1938; 

In 1958, the Trade and Merchandise Marks Act, 1958 was enacted which consolidated the provisions related to trademarks contained in other statutes like, the Indian Penal Code, Criminal Procedure Code and the Sea Customs Act.

The Trade and Merchandise Marks Act, 1958 was repealed by the Trade Marks Act, 1999 and is the current governing law related to registered trademarks. The 1999 Act was enacted to comply with the provisions of the TRIPS(Agreement on Trade-Related Aspects of Intellectual Property Rights); 

Though some aspects of the unregistered trademarks have been enacted into the 1999 Act, they are primarily governed by the common law rules based on the principles evolved out of the judgments of the Courts; 

Where the law is ambiguous, the principles evolved and interpretation made by the Courts in England have been applied in India taking into consideration the context of our legal procedure, laws and realities of India.

Trademark

Trademark According to Section 2 (zb) of the Trade Marks Act,1999, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours” 

A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any such combinations.

Trademark Classification in India

Trademark in India is classified into about 45 different classes, which includes chemical substances used in industry, paints, lubricants machine and machine tools, medical and surgical instruments, stationery, lather,  household, furniture, textiles, games, beverages preparatory material, building material, sanitary material, and hand tools, other scientific and educational products. These classes again are further sub-divided. The main objective of trademark classification is to group together the similar nature of goods and services. Here are the classes for product and for services.

Class 1  (Chemicals)

Class 2 (Paints)

Class 3 (Cosmetics and Cleaning Preparations)

Class 4 (Lubricants and Fuels)

Class 5 (Pharmaceuticals)

Class 6 (Metal Goods)

Class 7 (Machinery)

Class 8 (Hand Tools)

Class 9 (Electrical and Scientific Apparatus) 

Class 10 (Medical Apparatus)

Class 11 (Environmental Control Apparatus)

Class 12 (Vehicles) 

Class 13 (Firearms)

Class 14 (Jewellery)

Class 15 (Musical Instruments)

Class 16 (Paper Goods and Printed Matter) 

Class 17 (Rubber Goods) 

Class 18 (Leather Goods)

Class 19 (Non-metallic Building Materials)

Class 20 (Furniture and Articles Not Otherwise Classified)

Class 21 (Housewares and Glass)

Class 22 (Cordage and Fibres)

Class 23 (Yarns and Threads)

Class 24 (Fabrics) 

Class 25 (Clothing)

Class 26 (Fancy Goods)

Class 27 (Floor Coverings) 

Class 28 (Toys and Sporting Goods)

Class 29 (Meats and Processed Foods)

Class 30 (Staple Foods)

Class 31 (Natural Agricultural Products) 

Class 32 (Light Beverages)

Class 33 (Wines and Spirits) 

Class 34 (Smokers Articles)

SERVICES

Class 35 (Advertising and Business)

Class 36 (Insurance and Financial)

Class 37 (Building, Construction and Repair)

Class 38 (Telecommunication) 

Class 39 (Transportation and Storage) 

Class 40 (Treatment of Materials) 

Class 41 (Education and Entertainment)

Class 42 (Computer, Scientific and Legal)

Class 43 (Hotels and Restaurants) 

Class 44 (Medical, Beauty, and Agricultural)

Class 45 (Personal and Social Services)

Trademark Registration

What are the types of Trademarks that can be registered?

Under the Indian trademark law, the following are the types of trademarks that can be registered:

Product trademarks: are those that are affixed to identify goods

Service trademarks: are used to identify the services of an entity, such as the trademark for a broadcasting service, retails outlet, etc. They are used in advertising for services

Certification trademarks: are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features

Collective trademarks: are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group.

Advantages of Registration of Trademarks

1. Protects your hard-earned goodwill in the business
2. Protects your Name / Brand Name from being used in the same or similar fashion, by any other business firm, thus discourages others from cashing on your well-built goodwill.
3. Gives your products the status of Branded Goods.
4. Gives an impression to your customers that the company is selling some standard Products or Services.
5. The exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered.
6. To obtain relief in respect of infringement (misuse by others) of the trademark.
7. Power to assign (transfer) the trademark to others for consideration.

Who may apply to register?

• Any person claiming to be the proprietor of the trademark used or proposed to be used by him can apply. 
• The application may be made in the name of an individual, partners of a firm, a Corporation, any Government Department, a Trust or joint applicants.

What is the procedure for registration?

Sections 18-24 of Trademarks Act, 1999

The trademark Registry having its head office in Mumbai and branch offices at Delhi, Kolkata, Ahmedabad and Chennai keep a register of trademarks.

Procedures/Steps for Registration of Trademarks

1. Filing of an application for registration by a person claiming to be the proprietor of a trademark, in the office of the Trademark Registry, within the territorial limits of the place of business in India.
2. Examination of the application by the Registrar to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report is issued.
3. Publication of the application after or before acceptance of the application in the Trademark Journal.
4. After publication, if any person gives notice of his opposition to the registration within three months which may be extended to the maximum of one month.
5. If the opposition has been decided in favour of the applicant of the registration of a trademark, the Registrar shall register the Trademark.
6. On the registration of the Trademark the Registrar shall issue to the applicant a Trademark Registration
7. Today, as per the Trademark Rules, 2002, the application fees (similar to a tax) are Rs. 3500 per trademark.

REFUSAL OF TRADEMARK REGISTRATION

ABSOLUTE GROUNDS

1. Which is devoid of any distinctive character.
2. Which have become customary in the current language.
3. Which indicates the quality or other descriptive characters of the goods or services

RELATIVE GROUNDS

1. A mark, which by its very nature will deceive the public or cause confusion.
2. A mark, which is likely to hurt the religious susceptibilities.
3. A mark, which contains scandalous or obscene matter.
4. A mark, the use of which is prohibited under the Emblems and Names (Prevention of Improper Use) Act 1950

Term/Duration of a Trademark in India

• The term of registration of a trademark is 10 (Ten) years but may be renewed subject to the payment of the prescribed fee, in accordance with the provisions of the Trademarks Act,1999. 
• Subsequent renewal is for seven years.

• Non-use of a registered trademark for a continuous period of five years is a ground for cancellation of registration of such trademark

Use of the TM and ® symbols

Generally, one who has filed an application (pending registration) can use the TM (trademark) designation with the mark to alert the public of his exclusive claim. The claim may or may not be valid. 

The registration symbol, ®may only be used when the mark is registered.

Assignment of Trademarks

Complete Assignment to another entity: 

Here, the owner transfers all its rights with respect to a brand/mark to another entity including the transfer of the rights such as the right to further transfer, earn royalties, etc. 

(E.g. X, the proprietor of a brand, sells his mark completely through an agreement to Y. After this X does not retain any rights with respect to the brand)

Assignment to another entity but with respect to only some of the goods/ services: Here, the transfer of ownership is restricted to specific product or service only. 

(E.g. P, the proprietor of a brand used for jams and jellies and dairy products. P assigns the rights in the brand with respect to only dairy products and retains the rights in the brand with respect to jams and jellies. This is partial assignment)

Assignment with goodwill: 
Such assignment is, where the rights and value of a trademark as associated with the product is also transferred to another entity.

(E.g. P, the proprietor of a brand “Nandini” relating to dairy products, sells his brand to Q such that Q will be able to use the brand “Nandini” with respect to dairy products as well as any other products it manufactures.)

Assigned without goodwill: 
Such assignment also referred to as a gross assignment, is where the owner of the brand restricts the right of the buyer and does not allow him to use such brand for the products being used by the original owner.

(E.g. P, the proprietor of a brand “Nandini” relating to dairy products, sells his brand to Q such that Q will not be able to use the mark “Nandini” with respect to dairy products but can use this brand for any other products being manufactured by it. In such case the goodwill which is associated with brand “Nandini” for dairy products is not transferred to Q and Q will be required to create distinct goodwill of brand “Nandini” for any other product or service like Restaurant wherein Q proposes to use this brand.)

In many jurisdictions like the United States, assignment of the mark without goodwill is not allowed at all. India on the other hand allows assignment without goodwill.

Restrictions on Assignments

In the case of registered Trademarks, the Trade Mark Act 1999 puts certain restrictions on the assignment of a registered trademark wherein there exist possibilities of creating confusion in the mind of the public/ users. Such restrictions are:

1. Restriction on an assignment that results in the creation of exclusive rights in more than one persons with respect to the same goods or services, or for the same description of goods or services or such goods or services as associated with each other.
2. Restriction on an assignment that results in different people using the trademark in different parts of the country simultaneously.

Licensing of Trademarks

• The Trademarks Act does not mention the term ‘License’, the concept under the Act is mentioned as that of a ‘Registered User’.
• Trademark licensing is advantageous to both parties. While the licensor enjoys its rights to the mark by getting the royalties for its use, the licensee is able to expand its market operations by using the brand and developing its reputation.
• In the case of Licensing, the licensor is open to licensing the rights over the trademark in the manner it may like. 
• The Licensor can restrict the rights of the licensee in a trademark or brand with respect to the products or services wherein the licensee can use such brand with respect to time for which it can use such brand, with respect to area within which it can use such brand etc.

COPYRIGHT - Assignment, Rights, Adaptation & Registration

ASSIGNMENT

A copyright assignment is when the copyright holder transfers ownership of the copyright to another person or organization.

The copyright holder is normally the person who created the work. Still, they may decide to sign the agreement over to a publisher (in the book industry or music industry) or record label (in the music industry). This occurs because publishers and record labels have more resources than an author to print copies of the work, distribute to a broader audience, and maintain other aspects of their career. Often, the publisher or record label may even supply the author with a monetary advance so the author can focus on just creating the work.

The downside of assigning your copyright over to a publisher is that you receive only a cut of what you would have received if you retain the copyright, and you may also lose some creative control. For instance, deciding whether to turn your book into a movie may now rest with the publisher and not you.

An alternative of transferring the entire copyright over to a publisher is licensing the work to them in a limited capacity. In this instance, you retain the copyright, but you also get the business advantages from the publisher. 

Debates have popped into court over who actually owns the copyright. So like any other contract, an assignment must be in writing to avoid any future confusion. 

Assignment of Copyrights can be made in whole or in part either generally or subject to limitations and either for the whole term of the copyright or any part thereof. 

In other words, you may assign away 50%, 1%, or 99% of your interest in that Copyright. Assignments may be integrated into a contract or maybe drafted separately. 

Mode of assigning copyright

It shall be in writing signed by the assignor or by his duly authorised agent. It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

Period of assignment

If the assignment period is not stated, it shall be deemed to be five years from the date of assignment.

Assignment and License

A license is an authorization of an act which, without such authorization, becomes infringement.

In essence, a license is a grant of authority to do a particular thing that otherwise could not have been done.

It amounts to consent or permission granted by the owner of a copyright that the licensee could carry out a restricted act which but for such permission could have been an infringement.

Owner of copyright in an existing work or future work ‘may grant any interest in the right by license in writing signed by him or his duly authorized agent’ (S. 30)

K.A. Venugopala Setty v. Dr. Suryakantha U. Kamath AIR 1992 Kar 1.

It is the case of the plaintiff that he is the author of the book "A Concise History of Karnataka" and the manuscript of the same was given to the defendant for printing; that he had not assigned his copyright to the defendant and therefore, the defendant was and is not entitled to publish the book without assignment of the copyright in writing to him by the plaintiff; that when the book was printed and ready for publishing, the defendant came forward with the plea that the plaintiff had assigned the copy-right though no such assignment had been made by the plaintiff either orally or in writing; that as the defendant tried to publish the book claiming that the plaintiff had assigned the copyright of the book in question, the plaintiff had no other go but to seek relief as claimed in the suit.

Section 19 of the Act provides that: 

• An assignment of copyright should be in writing signed by the owner of the copyright.
• Mere acceptance of remuneration or delivery of manuscript does not constitute an assignment of copyright. 
• An oral assignment is invalid, and it is impermissible in law. (Section 19 requires that the assignment should be in writing signed by the assignor or by his duly authorized agent—if the assignment appears from any document and it is signed by the assignor or by his authorized agent, the statutory requirement is fulfilled.)

Assignment – Points to Ponder

Transfer of ownership of the rights

Assignment leaves nothing in the grantor *qua; the right assigned bestowing in the grantee the whole of the legal interest in the right. (*in the capacity of; as being)

Capacity to sue for infringement

A licensee cannot sue for infringement of copyright unless he joins the copyright owner as a co-plaintiff in the action.

Sec. 61. Owners of copyright to be a party to the proceeding.—

(1) In every civil suit or other proceedings regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant. Where such owner is made a defendant, he shall have the right to dispute the claim of the exclusive licensee.

(2) Where any civil suit or other proceedings regarding infringement of copyright instituted by an exclusive licensee is successful, no fresh suit or other proceedings in respect of the same cause of action shall lie at the instance of the owner of the copyright.

Rights in a musical sound recording

A sound recording generally comprises various rights, For example, the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music. It is necessary to obtain the licences from each and every right owner in the sound recording. This would, inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the music.

Owner of copyright in works by journalists during the course of their employment.

In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published. Still, in all other respects, the author shall be the first copyright owner in the work.

Owner of the copyright in the case of a work produced for valuable consideration at the instance of another person

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

ADAPTATION

In the law of copyrights, the exclusive right of the author of a literary project to reproduce, publish, and sell his or her work, which is granted by statute, adaptation refers to the creation of a derivative work, which is protected by copyright laws.

A derivative work involves a recasting or translation process that incorporates pre-existing material capable of protection by copyright. 

An adaptation is copyrighted if it meets the requirement of originality, in the sense that the author has created it by his or her own proficiency, labour, and judgment without directly copying or subtly imitating the pre-existing material. 

Mere minor alterations will not suffice.

The Copyright Act defines the following acts as adaptations:

Conversion of a dramatic work into a non-dramatic work

Conversion of a literary or artistic work into a dramatic work

Re-arrangement of a literary or dramatic work

Depiction in a comic form or through pictures of a literary or dramatic work

Transcription of a musical work or any act involving re-arrangement or alteration of an existing work.

The making of a cinematograph film of a literary or dramatic or musical work is also an adaptation.

Copyright over news

There is no copyright over the news. 

However, there is copyright over the way in which a news item is reported.

COPYRIGHT OFFICE

Section 9 of the Copyright Act requires for the establishment of an office to be called the Copyright Office for the purpose of the Act. The Copyright Office is to be under the immediate control of a Registrar of Copyrights to be appointed by the Central Government, who would act under the superintendence and directions of the Central Government.

The Copyright Office is currently located at the following address:

4th Floor, Jeevan Deep Building

Parliament Street

New Delhi - 110001

Telephone No. : +91-11-23362436

Copyright Board

Section 11 of the Act provides for the establishment of the Copyright Board and empowers the Central Government to constitute the same consisting of a Chairman and not less than two, but not more than fourteen members. 

The Chairman of the Board should be a sitting or retired judge of the High Court or a person qualified to be appointed as judge of the High Court. 

The Registrar of Copyright to act as Secretary of the Copyright Board. (The Copyright Board has no powers to limit the use of copyright to any particular territorial area. The appeal against orders passed by the Copyright Board to the High Court within whose jurisdiction the appellant resides or carries on business.)

Functions of the Copyright Board

The main functions of the Copyright Board are as under:

1. Settlement of disputes as to whether copies of any literary, dramatic or artistic work or records are issued to the public in sufficient numbers.
2. Settlement of disputes as to whether the term of copyright for any work is shorter in any other country than that provided for that work under the Act.
3. Settlement of disputes with respect to assignment of copyright as dealt with in Section 19A.
4. Granting of compulsory licences in respect of Indian works withheld from the public.
5. Granting of compulsory licence to publish unpublished Indian works.
6. Granting of compulsory licence to produce and publish the translation of literary and dramatic works.
7. Granting of compulsory licence to reproduce and publish literary, scientific or artistic works for certain purposes.
8. Determination of royalties payable to the owner of the copyright.
9. Determination of objection lodged by any person as to the fees charged by Performing Rights Societies.
10. Rectification of Register on the application of the Registrar of Copyright or of any person aggrieved.

REGISTRATION OF A COPYRIGHT

Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration of a work. 

The procedure for registration is as follows:

• Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ;
• Separate applications should be made for registration of each work;
• Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules; and
• The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney (neither notarization nor consular legalization required) has been executed. 
• A power of attorney signed by the party and accepted by the advocate should also be enclosed.
• Both published and unpublished works can be registered.
• Three copies of published work may be sent along with the application. 
• If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. 
• In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. 
• It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office.
• If the work is a Computer programme, in addition to the above 3 Copies of the work in CD or Floppy Diskette must be provided.

Steps involved in getting a copyright registration certificate:

1. The application with complete details is filed.
2. Thereafter, the application is examined, and objections, if any, are raised.
3. The certificate is issued by the copyright office after the objections, if any, are removed to the satisfaction of the department.
4. When a work has been registered as unpublished, and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with a prescribed fee.

PERFORMER'S RIGHTS

As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.

"Performance" in relation to performer’s right means any visual or acoustic presentation made live by one or more performers.

Rights of a performer:

A performer has the following rights in his/her performance:

• Right to make a sound recording or visual recording of the performance;
• Right to reproduce the sound recording or visual recording of the performance;
• Right to broadcast the performance;
• Right to communicate the performance to the public otherwise than by broadcast.
• Performer’s rights subsist for 25 years.

Protection of Foreign Works

The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. 

Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. 

Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order.

The Berne Convention and the TRIPS Agreement stipulate the subsistence of copyright in original literary, dramatic, musical and artistic works; cinematographic film and sound recordings. 

These classes include a variety of works like books, pamphlets and other writings; lectures, addresses, sermons; dramatic or dramatic-musical works, choreographic works; musical composition, chirographic works; drawing, painting, architecture, sculpture, engraving; and lithography, photography, maps, plans, sketches, three-dimensional works, translations, encyclopaedias and anthologies, software codes, multimedia productions, etc.

Statutory Licence for Cover Versions

Section 31C (1) provides that any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section.

However, such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.

The person making the sound recordings required to give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board.

It may be noted that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section.

The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights or which is not technically necessary for the purpose of making the sound recordings. 

However, such sound recordings shall not be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work was made.

It may be noted that the cover version means a sound recording made in accordance with this Section 31C of the Act.

Statutory Licence for Broadcasting of Literary and Musical Works and Sound Recording

Section 31D provides that any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the fulfilment of prescribed conditions.

The broadcasting organisation required to give prior notice in the prescribed manner of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.

The rates of royalty for radio broadcasting shall be different from television broadcasting, and the copyright Board shall fix separate rates for radio broadcasting and television broadcasting and the broadcasting organisation to pay an advance to the owners of rights.

The broadcasting organisation required to maintain such records and books of account, and render to the owners of rights such reports and accounts; and allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast in prescribed manner.

Licence to Produce and Publish Translations

Section 32 entitles any person to apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work. 

However, in respect of teaching, scholarship or research, Section 32(1A) allows any person to apply to the Copyright Board for a licence to produce and publish a translation, in printed or analogous forms of reproduction, of a literary or dramatic work, other than an Indian work, in any language in general use in India after a period of three years from the first publication of such work. 

Further, where such translation is in a language not in general use in any developed country, such application may be made after a period of one year from such publication.

Termination of Licence

Section 32B of the Act deals with termination of licences and provides that if at any time after the granting of a licence, the owner of the copyright in the work or any person authorised by him publishes a translation of such work in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India for the translation of works of the same standard on the same or similar subject, the licence so granted shall be terminated. 

However, such termination shall take effect only after the expiry of a period of three months from the date of service of a notice in the prescribed manner on the person holding such licence by the owner of the right of translation intimating the publication of the translation.

Copyright Societies

Under clause (3) of Section 33 Central Government has been authorised to register association of persons as copyright society after taking into account the following factors:

1. the interests of the authors and other owners of rights under the Copyright Act;
2. the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of the relevant rights; and
3. the ability and professional competence of the applicants.

However, an owner of copyright in his individual capacity continues to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society.

The Central Government cannot register more than one copyright society to do business in respect of the same class of works.

The Central Government has been empowered to cancel the registration of a Copyright Society if its management is detrimental to the interests of the owners of rights concerned. 

The registration can also be suspended by the Government for a period of one year if it is necessary in the interest of the owners of the rights concerned, and the government has to appoint an administrator to discharge the functions of the Copyright Society.

Copyright Society is a legal body that protects or safeguards the interest of owners of the work in which copyright subsist. The Copyright Societies gives assurance to the creative authors of the commercial management of their works. 

The authors of creative works licence a publisher to publish the work on a royalty basis. This may lead to infringement of the work anywhere in India or abroad as it is extremely difficult for the owner of the work to prevent such infringement. To overcome such difficulty, owners of Copyright works have formed Societies to licence their works for performance or communication to the public or issue copies of the work to the public. 

The Copyright societies are also authorized to watch out for infringement of the copyright and take appropriate legal action against the infringers.

Section 34(3) empowers the Copyright Society to:

1. issue licences under Section 30 in respect of any rights under the Act;
2. collect fees in pursuance of such licences;
3. distribute such fees among owners of rights after making deductions for its own expenses; and
4. perform any other function consistent with the provisions of Section 35.

FUNCTIONS OF A COPYRIGHT SOCIETY:

• It grants the license of the Copyright in the work for reproduction, performance or communication to the public.
• It locates the infringement of the Copyright and initiates legal proceedings.