WHAT IS MEANT BY LICENSING?
A license is the transfer of interest in a copyright. In a license, the rights granted are limited. A grant of a license to a person authorizes the licensee to use the copyrighted work without any claim of infringement or unauthorized use being brought by the owner of the copyright against the licensee.
A license is different from an assignment as the licensee gets certain rights subject to the conditions specified in the license agreement but the ownership of those rights vests solely in the owner of the copyright. On the other hand, in case of an assignment, the assignee becomes the owner of the interest assigned to him. The original owner of the copyright transfers all his/her rights to the assignee and retains none.
A license can be voluntary or compulsory.
Section 30 of the Indian Copyright Act defines what is meant by voluntary licensing. According to Section 30:
The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing signed by him or by his duly authorized agent.
Therefore, the copyright owner of any existing work or the prospective owner of any future work can grant any interest in the right by way of a license. However, it has to be borne in mind that in case of a future work, the license will come into force only when the work comes into existence.
Compulsory license is the term generally applied to a statutory license to do an act covered by an exclusive right without the prior authority of the right owner. Compulsory licensing allows for the use of protected (in this case, copyrighted material) without the prior permission of the owner of the right.
Section 31 of the Indian Copyright Act provides for the compulsory licensing of copyright in case of works that are withheld from the public. In case the copyright owner has refused to:
Republish or allow for the republication of the work or has refused to allow for the performance of the work in public due to which the work is withheld from the public;
Allow communication of the work to the public by way of broadcast of such work, or in the case of sound recording the work recorded in such sound recording on terms which the complainant considers reasonable,
The Copyright Board can, after providing reasonable opportunity for the owner of the copyright to be heard and after conducting an enquiry and if satisfied, can direct the Registrar of Copyrights to grant a compulsory license to the complainant to republish the work, broadcast the work or communicate it to the public as the case may be. Upon such direction, the Registrar of Copyrights shall grant the license to the complainant.
Further a compulsory license can also be granted in case of unpublished Indian works. Section 31A provides for the same. In case of an unpublished work wherein the author is dead or unknown or cannot be traced, any person may apply to the Copyright Board seeking for a license to publish such work.
An important case with regard to compulsory licensing is Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. In this case, Radio Mirchi was playing music, the rights of which were held by Super Cassette Industries. The music company filed for permanent injunction and while the suit was pending, the FM operators filed an application before the Copyright Board for the grant of compulsory license under Section 31(1)(b) of the Copyright Act. The question that arose here was whether in such a certain circumstance, granting of a compulsory license was viable. The broadcasters, i.e. Radio Mirchi argued that since a license had already been granted to AIR and Radio City, there were no grounds on which a license to Radio Mirchi should be denied. The Court held that since a compulsory license can be granted on grounds stated in Section 31A of the Copyright Act, i.e. only when access to the work has been absolutely denied to the public. In this case, license had already been granted to AIR and Radio City. Therefore, it was not absolutely barred to public access. Therefore, the argument of Radio Mirchi holds no water and they were liable for infringement of copyright.
WHY IS COMPULSORY LICENSING SO IMPORTANT?
The primary objective of compulsory licensing is to ensure the availability of copyrighted material. The Indian Copyright Act grants protection to the works of writers, artists etc. so that they can benefit from the results of their hard work and creativity. However, this comes at a price i.e. the work should be available for access and fair use for other individuals. There are times when copyright owners refuse to part from their work. In such a case, in order to ensure availability of copyrighted material to the public and free flow of ideas and information without infringing the rights of the copyright owner, compulsory licensing becomes a necessity.