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The Evolution of Copyright and Translation Terms in India: Part III- A Different Term for Translations

Republished By Plato
Republished By Plato

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[This post is authored by Prachi Mathur and is the third post of the three-part post on the history of terms of copyright and translations in India. Prachi, who wrote this while interning with SpicyIP, is a Third-Year B.A., LL.B (Hons) student at the National Law School of India University (NLSIU), Bangalore.]

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In part I and II of the post, I analysed the historical development and debates on the term of copyright in India. As discussed, the term of copyright increased from the proposed duration of 25 years to 50 years as independent India’s first Copyright Act was passed in 1957, (and later increased to 60 years through successive amendments). In contrast to this, the term of translations (the duration after which translations of works will not be considered an infringement) decreased from the proposed duration of 25 years to 10 years. In this post, I will look at the evolution of the term of translations. Here, I will, first, look at the “ten-year regime” which formed the basis of the provision of translations in the Brussels Text of the Berne Convention, and later, the Indian Copyright Act of 1914. This shall provide the context in the favour of reducing the term of translations to 10 years. I, then, provide an overview of the parliamentary debate on the term of translations (mainly in Rajya Sabha where it was discussed more extensively). Lastly, I will focus on an amendment that catalysed the birth of the present provision on the term of copyright in Section 52 (r) of the Copyright Act of 1857.

The “Ten-Year Regime”

Interestingly, the Brussels Text of the Berne Convention (when this bill was being debated) did not have the current appendix titled Special Provisions for Developing Countries (it was added only in 1971). [The texts of the original and subsequent revised versions of the Berne Convention can be found here]. Instead, the Brussels text had the ‘ten-year regime’ for translations. Article V of the original 1886 version of the Berne provided only 10 years of exclusive rights for translations of works – authors enjoyed the exclusive right of making or authorizing the translation of their works until the expiration of ten years from the publication of the original work. This “ten-year regime” was eliminated in the 1908 revision, which gave the author the exclusive right of translation for the entire term of protection. The rationale behind this “ten-year regime” was to encourage access to the Convention by some peripheral European countries, mainly Scandinavian countries with wide variations in language. As such, in 1928, this option of a “ten-year regime” was offered not to existing Berne members, but to new joining members, and that only for “translation into the language or languages of that country.”

Similarly, the “ten-year regime” was carried forward in the Indian Copyright Act of 1914. Section 4 of the 1914 Act provided for the modification of copyright as regards the translation of works first published in British India. For works initially published in British India, the copyright for translating, producing, reproducing, performing, or publishing is limited to ten years from the first publication. However, if the author or someone authorized by the author publishes a translation in any language within that period, the copyright for translating, producing, reproducing, performing, or publishing in that specific language is not subject to the ten-year limitation.

An Overview of the Debate

Some argued that translations should be granted independent copyright protection, separate from the original work, to recognize the creative effort and skill involved in translating. For instance, Rama Rao [¶ 3389, Rajya Sabha Debate of 7 August 1952 on ratifying the Berne Convention, 1952] argued that translations should be protected under the copyright law like the original works, and that there should be no difference in the protection accorded to an author and a translator. This was considered important for the dispersion of knowledge, and greater percolation of cultural texts across a country as linguistically diverse as India. Similarly, Rajendra Pratap Sinha, Raghu Vira, and M. S. Gurupadaswamy[¶920, Minutes of Dissent to the Report of the Joint Parliamentary Committee on the Copyright Bill, 1955 of November 14 1956] highlight two principles to consider while limiting the term of translations. Firstly, the author should be able to benefit from both the original work, and translations of his work. Setting the term to a lower period of 10 years for translations, prevents the author from benefitting from the translations of his work. This is because of two main reasons. One, a work would usually not be taken notice of as an important work meriting translation until around 10 years after its publication. If the term is fixed at 10 years, it would be translators who would benefit from the peak popularity of the book. Two, authors of linguistic minorities are particularly disadvantaged by lower terms because the revenues from translations might outweigh the revenue from the original work in a language with limited readers.

Others expressed concerns that granting independent copyright to translations could lead to copyright overlapping and create a complex rights framework. They proposed that translations should be treated as derivative works, which would mean that copyright protection for translations would be contingent upon obtaining permission from the copyright holder of the original work. The debates surrounding the 1957 Copyright Bill on the terms of copyright and translations reflected the need to balance the interests of creators, the public, and cultural access. The resulting legislation sought to establish a copyright framework that provided reasonable protection to creators while fostering cultural exchange and public access to creative works.

Amendment no. 14, and the Birth of Section 52 (r)

Rajesh Pratap Sinha, then Rajya Sabha MP, Bihar, moved amendment no. 14 against the JPC’s recommendation of 10 years [¶¶ 101-103 Rajya Sabha debate prior to voting on the Copyright Bill, 1955 on 14th May, 1957]. This led to a shift from the JPC’s recommendation in the final draft of the bill. (We could not find the exact text of the amendment. Most likely a separate copy of the text of the amendment was circulated in the House, and, as such, did not feature in the transcript of the debates, and has not been documented online. If any of the readers come across it, please share it with us so that we can upload it for everyone’s perusal!) We do have the final version of the section as passed by both houses – Section 52 (r) of the Copyright Act of 1857.

While moving this aforesaid amendment no. 14, there was considerable discussion on aligning JPC’s provision with the Berne convention. Sinha claimed that amendment no. 14 fell under one of the conditions of exceptions circumventing the requirement of co-existence with the term of copyright. Article 8 of the Berne Convention provides that the translations of works shall be protected throughout the term of protection of their right in original works, i.e., the term of translations of copyrighted works should be equal to the term of the original copyright works. Similarly, Article V of the UCC provides that copyright shall include, among other things, the “exclusive right” of the author to authors the making and publication of translations of works. However, if the owner of the right has not already granted permission or has denied it, the Universal Copyright Convention allows for the non-exclusive translation of a work as long as the owner of the right is fairly compensated and guarantees accurate translation. Once the author removed all copies of the work from circulation, no more licenses were to be granted. This right is contingent upon the just and adequate compensation of the copyright owner. Despite the Universal Copyright Convention granting authors fewer rights than the Berne Convention, it explicitly requires just and adequate compensation when issuing non-exclusive licenses for translation.

For this reason, Sinha criticises the provision on translation as it essentially expropriates authors or copyright owners without providing compensation, a practice deemed contrary to the constitutional spirit. Sinha argued that the reduction of the period for translation to 10 years is against both the Brussels Text and the Universal Copyright Convention of 1952 [¶924, Minutes of Dissent to the Report of the Joint Parliamentary Committee on the Copyright Bill, 1955 of November 14 1956]. He asserted that the overarching objective of the Conventions is the consolidation of the duration of protection, the streamlining of protective measures, and the enhancement of their efficacy. He underscores the purpose of these conventions and advocates for the acceptance of the provisions delineated in both the Berne Convention and the Universal Convention in relation to translation rights.

Conclusion

Interestingly, when Sinha was proposing this speech, India had not ratified the UCC but had ratified the Berne convention. While looking at the scant debates on ratification of the Berne Convention (and Prashant and Sumathi’s insights on the same in their book), one could easily see the force of arguments in this earlier blog on the Berne Convention. However, I think the case was different with the ratification of UCC, and this is also why the timing of the amendment is interesting. There was strong opposition from some members on ratifying the UCC (when the issue of ratification was brought up, and not when amendment no. 14 was being discussed). A lot of concerns highlighted in the earlier blog which were not discussed vis-a-vis the Berne convention were brought up during the ratification. It is peculiar because, generally, UCC gives much more leeway for variations to domestic legislation concerning copyright, including the term of translations. Seen from this perspective, one could sense the anomaly in the law-making process of the 1957 Act. Although Section 52 (r) of the 1957 Act captured the aspirations of the Parliamentarians on the term of copyright rather well, its harmonisation with the Berne Convention during the law-making process seems to be buried in undocumented archives on copyright law.

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