In particular, it deals with the grounds for compulsory licensing, procedure involved, decisions on compulsory licensing and trips compliance issues. Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patentprotected invention itself. The patents act, 1970 was amended three times in 1999, 2002, 2005 respectively to include the concept of compulsory. The granting of compulsory licenses appeared as a means to. In the case of nondramatic musical works, the exclusive rights provided by clauses 1 and 3 of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. When a compulsory license can be used what activities are covered by the. Compulsory licensing of copyright in india intepat ip.
Under section 115, the notice must be served before any phonorecords are distributed, but. After shamnads comprehensive post about the basic facts of the case of entertainment network v. Article pdf available in journal of intellectual property rights 171 january 2012 with 536 reads. In this blog post, vikram chaudhuri, student of department of law, calcutta university, and the diploma in entrepreneurship administration and business laws by nujs, analyzes the concept of a compulsory license under the patents act, 1970. Compulsory licensing of copyrights india law journal. The law related to compulsory licensing in copyrighted works compulsory license is the term generally applied to a statutorily license to do an act covered by an exclusive right, without the prior authority of the right owner. 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 license law and legal definition uslegal, inc. Hatchbob goodlatte music modernization act mma was signed into law.
Letter to government on internet broadcasts and compulsory licensing. If the familiar notice was placed on all copies of a published work, federal protection. Compulsory licensing under trips and doha declaration. In this blog post, bhavneet vohra, a student of vivekananda institute of professional studies, delhi, and pursuing his diploma in entrepreneurship administration and business laws from nujs, kolkata, provides an overview on compulsory licensing in india.
Notice of intention to obtain a compulsory license section 115. In licensing, a licensor may grant a license to authorize the use of work to a licensee, sparing the licensee from a claim of infringement or unauthorized use brought by the licensor. The present law is essentially the statute enacted in 1909, though that statute was codified in 1947 and has been amended ina number of relatively. A owner may grant a license and transfer some or all of his rights to others to exploit his work for monetary benefits, in exchange.
The law provides a compulsory license for making and distributing phonorecords of certain nondramatic musical works. In india, chapter xvi of the indian patent act, 1970 deals with compulsory licensing while. The compulsory and statutory license for secondary transmissions by cable systems. The copyright board has also been given the authority to adjudicate disputes relating to issue of compulsory licenses in ed works. Compulsory licensing of pharmaceuticals and trips wto. Compulsory license is also known as equitable remuneration. Exceptions, limitations, and compulsory licensing for. The licensing division also collects filing fees to cover part of the costs in administering the cable and satellite licenses. Compulsory license for making and distributing phonorecords 2 owner cannot be contacted, the person intending to record the work or make a dpd can use the compulsory licensing provisions of the law. The first compulsory licensing of patents and copyright by. The compulsory license provisions of the us copyright law. And institutum iurisprudentiae, academia sinica, a group of twenty scholars from around the world gathered to study the experiences made with regards to compulsory licensing.
However, in some circumstancesknown as compulsory licensesa owners permission is not required, provided that the user follows certain rules and pays fees set by law. What is the concept of compulsory license under the. Copyright licensing and licensing procedure in india ssrana. The license prescribes various conditions under which cable systems may obtain a. A quick recap on the two most important aspects of the decision. Scope of exclusive rights in nondramatic musical works. Through its exposition and analysis of the first five distinct compulsory licensing regimes, some concluding observations are made about the triggers for the first compulsory licences and the conditions that might help predict the desirability of compulsory licensing as a. Intellectual property rights and the use of compulsory licenses. Under the auspices of the max planck institute for intellectual property and competition law now the max planck institute for innovation and competition. Compulsory licensing allows for the use of protected in this case, ed material without the prior permission of the owner of the right. Provisions pertaining to compulsory licensing are provided for under both the indian patent act, 1970, as well as the international legal agreement between all the member nations of wto the trips. Introduction in india, it is very well established at all statutory, administrative and judicial levels that intellectual property is very.
Compulsory license for making and distributing phonorecords. Part iii briefly explores contrasting policy objectives for the use of compulsory licensing by comparing the perspec. Article 2bis is an example under the berne convention where governments retain the ability to make certain kinds of type protection available to other types of materials e. Licensing with special emphasis on compulsory licensing. The most important international law relating to compulsory licensing is the wto agreement on traderelated aspects of intellectual property rights article 1 says that countries are not obligated to provide more extensive protection than the trips, and shall be free to determine the appropriate method of implementing the provisions of this agreement within their own legal system and practice. In a different context, and without regard to the type of work involved, the concept of a compulsory license can arise in a infringement action. Next, part ii examines relevant provisions in the trips agreement concerning compulsory licensing, amidst the backdrop of the paris convention.
This circular provides a general overview of the compulsory license, also known as the 115 license or mechanical license. National law institute university, bhadbhada road, barkheri kalan, bhopal 462 002, india received 8 may 2008 as the patents laws continually soar in dynamic transition, burning controversy that rages up is compulsory licensing under section 92a of the indian patents act enabling exportation of patented drugs. An overview on compulsory licensing in india ipleaders. Music recording, publishing, and compulsory licenses. Compulsory licensing, price controls, and access to patented. Compulsory licensing bridging the chasm between competition policy and ip law. International norms for compulsory licensing and the. Some laws, such as the french law, imposed the forfeiture of a patent in the case of nonworking.
Compulsory licensing practical experiences and ways. Such compulsory licenses are commonly used by satellite television providers, cable providers, webcasters, and music companies. Statutory license for secondary transmissions by cable. How far it addresses public health concerns in developing nations raadhika gupta nalsar university of law, shameerpet, r r district, hyderabad 500 078, ap received 10 june 2010, revised 11 august 2010. Flexibilities in international intellectual property rules. Under the terms of a compulsory license, the licensee is permitted to make a new arrangement of the composition as long as the basic melody or fundamental character of the work is not altered. It is one of the flexibilities in the field of patent protection included in the wtos agreement on intellectual property the trips trade. Compulsory licensing for copyright under the trips. Under patents law, compulsory license is a statutorily created license allowing certain people to pay a royalty and use an invention without getting the consent of the patentee. The license prescribes various conditions under which cable systems may obtain a compulsory license to retransmit ed works, including the filing of statements of account forms. Compulsory licensing regimes exist in many different. Section 31a compulsory license in unpublished indian work. Section 115b1 requires anyone who wishes to take advantage of the compulsory licensing provisions to serve a notice of intention to obtain a compulsory license, which is much like the notice of intention to use required by the present law.
The law therefore, to strike a balance between promoting innovativeness amongst the creators and the interest of the general public has excluded a fair deal of works that is permitted without specific permission of the owners. Compulsory licensing provisions under the trips agreement. Circular 73 compulsory license for making and distributing. The new section inserted officially introduces compulsory licensing in kenyan law. It also establishes the requirements governing the form, and content of the filing of these semiannual statements and submission of statutory royalty payments. There are two statutory mechanisms akin to compulsory licensing that have evolved in patent law and law respectively in the 20th century, and there has emerged a. Robert stephen lee the economic philosophy behind the clause empowering congress to grant patents and s is the conviction that encouragement oj individual ejfort bypersonal gain is the best way to advance public. To be entitled to receive royalty payments under the compulsory license, the owner must be. Division service fees circular 76, available on the offices website at. Compulsory licenses under international law chennai3rd floor, creative enclave,148150, luz church road, mylapore, paris convention for the protection of industrial property. Compulsory licensing legal service india law, lawyers. The owner of s in any works may grant a license under laws brought to you by sinapse powered by bananaip. The relevant national legislation as indicated in the answers provided by the respondents is listed in table 1. Compulsory license is the term generally applied to a statutory license to do an act covered by an exclusive right without the prior authorization of the right owner.
1596 1076 78 264 423 219 858 324 644 1008 347 1359 618 256 973 1412 992 785 406 66 1137 238 1015 1385 1018 1035 1262 834 1052 366 867 562 1023 114 755 574 386 1439 1360 128