The Copyright Rules, 2013 and the 2021 Amendment

Two chapters carry most of the traffic. Chapter XI, on copyright societies, is the longest, and Chapters XII and XIII, on the Register, are the ones an ordinary applicant meets.

What the 2021 amendment changed

The Gazette notification G.S.R. 225(E) of 30 March 2021 makes twenty six numbered changes. They fall into five groups.

One: the journal replaces the Official Gazette. A new definition, rule 2(1)(da), says "journal" means the Copyright Journal made available at the official website of the Copyright Office. Wherever the Rules previously required publication in the Official Gazette, they now require publication in the journal: rules 7(5), 11(6), 18(5), 23(1), 27(2), 29(1), 31(2), 33(1), 34(1), (3) and (6), and 39(5).

Two: electronic service. In rules 7(1), 18(1) and 39(1) the words "through electronic means or" are inserted before the existing modes of service, so a notice may be served electronically.

Three: the Board becomes the Appellate Board. Rule 2(1)(b) is amended, the heading of Chapter II becomes "THE APPELLATE BOARD", and rule 3 is substituted so that the Chairman and members are appointed under the Trade Marks Act, 1999 and the Technical Member must have the qualifications in the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020.

That third group was overtaken within days. The Tribunals Reforms Act came into force on 4 April 2021, five days after these Rules, and abolished the Appellate Board altogether. So Chapter II of the Rules describes a body that no longer exists, and the forum is now the Commercial Court or the High Court under the Act itself.

Four: transparency in copyright societies. A new sub-rule (3) in rule 55 requires a society to create a system of payment through electronic modes for both collection and distribution of royalty, and to establish a system through which the payments made are traceable. New sub-rules (11) to (13) in rule 58 require undistributed royalty to be kept separate in the accounts, require the society to publish on its website every quarter the title of the work, the names of the author and other owners so far as known, and any other information that could help identify the right holder, and require royalty still undistributed three years after the end of the financial year of collection to be transferred to the society's welfare fund. And a new rule 65A requires an annual transparency report.

Five: administration. Rule 49(1) extends the time for the Central Government to respond to an application for registration as a copyright society from sixty days to one hundred and eighty. Rule 50(2)(a) drops the requirement that an officer be not below the rank of Deputy Secretary. Rule 59(7) makes the Chairman and members of a Governing Council elected for two years and eligible for re-election. Rule 62 and rule 65 add the annual transparency report to what must be presented and filed. And rule 64 allows the registers a society keeps to be in physical or digital format.

Rule 70 was also amended, so that an applicant registering a computer programme as a literary work may file the first ten and the last ten pages of the source code, or the whole of it if it is less than twenty pages, with no blocked out or redacted portions.

The annual transparency report, rule 65A

Because it is new and it is examinable. A copyright society must draw up and make public an annual transparency report for each financial year within six months of the end of that year, publish it on its website and keep it there for at least three years. It must contain a report on the activities of the year; the number of refusals to grant a licence; total royalties collected; total royalties paid to authors and other owners; total royalties collected but not yet attributed; total administrative deductions; the details and use of amounts deducted for the welfare scheme under rule 67; and information on amounts received from and paid to foreign societies or organisations.

A worked example

A copyright society collects one crore of rupees in a financial year. Twenty lakh cannot be paid out because the owners of the works cannot be identified.

What must it do with the twenty lakh? Under rule 58(11) it must keep the amount separate in its accounts. Under rule 58(12) it must take all necessary measures to identify and locate the owners, and publish on its website at the end of every quarter the title of each work, the names of the author and other owners so far as available, and any other relevant information that could assist identification.

And if it is still undistributed three years later? Under rule 58(13), at the end of three years from the end of the financial year in which the collection occurred, the society must transfer the amount to its own welfare fund under rule 67.

What must it publish about all this? An annual transparency report under rule 65A, within six months of the end of the financial year, showing among other things the total collected but not yet attributed.

Where does that report have to appear? On the society's own website, and it must stay there for at least three years.

What it does NOT mean

It does not mean the Rules can add to the Act. They are subordinate legislation made for carrying out the purposes of the Act, and a rule beyond that purpose is ultra vires. The Supreme Court's decision in Saregama India Limited v. Next Radio Limited, decided on 27 September 2021, is about the other side of that coin: a High Court may not rewrite a valid rule either.

It does not mean the journal is optional. After 2021 the Copyright Journal is the place of publication for the matters the amendment moved, and looking only in the Official Gazette will now miss them.

And it does not mean Chapter II of the Rules still operates. It describes an Appellate Board that was abolished five days after the amendment naming it.

Quick revision

Section 78 is the rule-making power; section 78(3) requires laying before Parliament.

The Copyright Rules, 2013, G.S.R. 172(E) of 14 March 2013, in supersession of the Rules of 1958; eighty six rules in eighteen chapters; amended by G.S.R. 788(E) of 2016 and by G.S.R. 225(E) of 30 March 2021.

The 2021 changes: the journal for the Official Gazette; electronic service; the Board renamed; electronic and traceable royalty payments; undistributed royalty kept separate, published quarterly and transferred to the welfare fund after three years; the annual transparency report in rule 65A; one hundred and eighty days for a society's application; and the ten pages of source code in rule 70.

No consolidated official print of the Rules as amended in 2021 exists, so a 2021 rule is quoted from the amending notification.

Test yourself

1. Under which section were the Rules made, and what does that section require of Parliament? Section 78. Sub-section (3) requires every rule to be laid before each House for thirty days, and lets both Houses modify or annul it.

2. What is the journal and what did it replace? The Copyright Journal, made available at the official website of the Copyright Office, defined by rule 2(1)(da) inserted in 2021. It replaced the Official Gazette as the place of publication for most matters under the Rules.

3. What must a copyright society do with royalty it cannot distribute? Keep it separate in its accounts, take all necessary measures to identify and locate the owners, publish quarterly on its website the title, the names so far as available and any information that could assist identification, and transfer the amount to its welfare fund three years after the end of the financial year of collection.

4. What does rule 70 now allow a software applicant to file? The first ten and the last ten pages of the source code, or the whole of it if under twenty pages, with no blocked out or redacted portions.

5. Why is Chapter II of the Rules a dead letter? Because it was amended in March 2021 to describe the Appellate Board, and the Tribunals Reforms Act abolished that Board with effect from 4 April 2021.