Section 40A of the Copyright Act 1957: Foreign Broadcasting Organisations and Performers
Section 40A empowers the Central Government, subject to the statutory conditions, to extend the protections in Chapter VIII of the Copyright Act, 1957 to qualifying broadcasting organisations and performers connected with certain foreign countries.
What Section 40A means
Chapter VIII of the Copyright Act deals with the rights of broadcasting organisations and performers. Section 40A appears in Chapter IX, dealing with international copyright. Its purpose is to provide a statutory mechanism for extending Chapter VIII protection to broadcasting organisations and performers connected with a foreign country when the conditions stated in Section 40A are met.
The provision is not an automatic extension to every foreign country. For a country falling within the opening words of sub-section (1), the Central Government must be satisfied about the protection made or undertaken to be made in that foreign country and must issue an order in the Official Gazette.
Text and structure of Section 40A
Section 40A - Power of Central Government to apply Chapter VIII to broadcasting organisations and performers in certain other countries
(1) If the Central Government is satisfied that a foreign country, other than a country with which India has entered into a treaty or which is a party to a convention relating to rights of broadcasting organisations and performers to which India is also a party, has made or has undertaken to make such provisions, if any, as it appears to the Central Government expedient to require for the protection in that foreign country of the rights of broadcasting organisations and performers as are available under the Act, it may, by order published in the Official Gazette, direct that Chapter VIII shall apply:
- to a broadcasting organisation whose headquarters is situated in the country to which the order relates, or where the broadcast is transmitted from a transmitter situated in that country, as if the headquarters were situated in India or the broadcast were made from India;
- to performances taking place outside India in the country to which the order relates, as if they took place in India;
- to performances incorporated in a sound recording published in the country to which the order relates, as if the sound recording were published in India; and
- to performances not fixed on a sound recording and broadcast by a broadcasting organisation whose headquarters is located in the country to which the order relates, or where the broadcast is transmitted from a transmitter situated in that country, as if the headquarters were situated in India or the broadcast were made from India.
(2) An order under sub-section (1) may provide for the manner and extent of that protection, including:
- general application of Chapter VIII or application only to specified classes of broadcasts, performances or cases;
- a term of rights in India not exceeding the term conferred by the law of the country concerned;
- conditions and formalities for enjoyment of Chapter VIII rights;
- non-application of Chapter VIII, or any part of it, to broadcasts or performances made before commencement of the order; and
- exceptions and modifications concerning ownership of rights, having regard to the law of the foreign country.
The provision was inserted by Act 49 of 1999, section 5, with effect from 15 January 2000. For authoritative wording and amendments, consult the current official text of the Act.
Key legal elements
1. Central Government satisfaction
The statutory power is triggered by the Central Government being satisfied that the relevant foreign country has made, or undertaken to make, the protection considered appropriate for broadcasting organisations and performers. The provision therefore operates on the basis of reciprocal or corresponding protection contemplated by the Act.
2. Official Gazette order
The extension is made through an order published in the Official Gazette. The order determines the country and may also define the classes of broadcasts, performances or cases to which Chapter VIII will apply.
3. Chapter VIII rights
Chapter VIII contains the statutory framework for rights of broadcasting organisations and performers. In the current consolidated Act, it includes provisions dealing with broadcast reproduction right, performers' rights, exclusive rights of performers, specified exceptions and the application of certain other provisions of the Act.
4. Territorial deeming rules
Section 40A permits specified foreign broadcasts and performances to be treated, for the purpose of Chapter VIII, as though the relevant headquarters, broadcast, performance or publication were situated, made, performed or published in India, as applicable.
5. Limits and modifications
The Central Government may tailor an order by class of case, limit the duration of protection by reference to the foreign law, prescribe conditions or formalities, exclude earlier broadcasts or performances, and modify the application of ownership rules where necessary.
Related provisions
The Copyright Act, 1957 overview provides the broader statutory context. Section 40 deals with extension of copyright to foreign works, while Section 42A deals with the power to restrict rights of foreign broadcasting organisations and performers where adequate protection is not given or undertaken for corresponding Indian rights.
Frequently asked questions
Does Section 40A itself grant rights to every foreign broadcaster?
No. The section authorises the Central Government to extend Chapter VIII by an Official Gazette order in accordance with the statutory conditions. The terms of the applicable order are therefore important.
Can an order under Section 40A limit the period of protection?
Yes. Sub-section (2) permits the order to provide that the term of rights in India shall not exceed the term conferred by the law of the country to which the order relates.
Can different classes of broadcasts or performances be treated differently?
Yes. The order may apply Chapter VIII generally or only to specified classes of broadcasts, performances or other cases.
When was Section 40A inserted?
Section 40A was inserted by the Copyright (Amendment) Act, 1999 and came into force on 15 January 2000.