How a Licence Application Is Decided
Chapter Ninety-Seven
Syllabus topic 3.1, "Licences"
Pages 390 to 394 of 719
In one line
Every compulsory licence in Chapter VI runs on the same machinery: an application on a form with a fee, notice to the owner, a hearing, an inquiry, a royalty fixed and a licence issued by the Registrar.
In the wording a student can write in an exam: sections 31 to 32B of the Copyright Act, 1957, read with rules 6 to 43 of the Copyright Rules, 2013, prescribe a common procedure under which the Commercial Court, after giving the owner a reasonable opportunity of being heard and holding such inquiry as may be prescribed, directs the Registrar of Copyrights to grant a licence on such royalty and terms as it determines.
Why a chapter on the machinery
Because the sections repeat themselves. Five compulsory licence provisions each say "after holding such inquiry as may be prescribed", "a reasonable opportunity of being heard" and "direct the Registrar of Copyrights to grant". Learning it once is better than learning it five times.
Because the examiner asks it as procedure. A question on compulsory licensing usually wants the steps, not only the grounds.
And because the forum has moved twice and the Rules have not followed. That is the single most important thing to know about how one of these applications is decided today.
The five steps, in every case
One, the application. On the prescribed form, with the fee in the Second Schedule, for one work only.
| Section | Form | Rule |
|---|---|---|
| 31 | Form II | rule 6 |
| 31A | Form III | rule 11 |
| 31B | Form V | rule 17 |
| 32(1) | Form VI | rules 32 and 33 |
| 32(1A) and 32A | Form VII | rule 38 |
Two, notice. A copy of the application is served on the owner, usually by registered post, and where the owner is unknown or untraceable, on the publisher whose name appears on the work. For a section 32(1) application, rule 33 requires notice of the application to be published, and, if the authority thinks fit, in one or two newspapers, with seven particulars. Since the Copyright (Amendment) Rules, 2021 the place of publication is the Copyright Journal on the Copyright Office website and no longer the Official Gazette.
Three, the hearing and the inquiry. The owner is given a reasonable opportunity of being heard, and so, wherever practicable, is anyone claiming an interest in the copyright. The authority may take such evidence as it thinks fit. Every compulsory licence section says the licence may issue only after "such inquiry as it may deem necessary" or "as may be prescribed".
Four, the decision, and the choice between applicants. Where more than one person applies, the licence goes to whoever would best serve a stated interest: the interest of the general public under rules 11(4), 34(4) and 39(3), and the interest of the disabled persons under rule 18(3).
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