Compulsory Licences are not the same as voluntary licences.
A compulsory licence can be obtained in certain cases such as when works are withheld form public. Further, under Section 32, a licence to produce and publish translations can be obtained seven years after the work is first published. Licenses can also be obtained to reproduce and publish literary, scientific and artistic works for certain purposes under Section 32A.
Under Section 32B, generally, a compulsory license is terminated once the copyright owner himself produces the work in such a way as to do away with the circumstances which necessitated the grant of the compulsory licence. e.g. by pricing it reasonably
Like a voluntary licence, a compulsory licence does not transfer any interest in the property to the licensee. It merely allows him to do something which would have been unlawful but for the licence.
The Supreme Court spoke of compulsory licences in the case of M/s Entertainment Network (India) Ltd. v. M/s Super Cassette Industries Ltd., 2008 wherein it said:
“The scheme of the Act affirms the freedom to contract as being the primary machinery by which the copyright owner publishes his work through a voluntary license regime in terms of Section 30. Compulsory licenses are an exception to the general freedom of the copyright owner to contract.
Section 31 deals with compulsory license in works withheld from the public. Section 31A empowers the Copyright Board to issue a compulsory license in respect of an unpublished Indian work or a translation thereof in any language, whose author is dead or unknown or cannot be traced or the owner of copyright in such work cannot be found. Section 31A(4) empowers the Board to hold an enquiry and direct the Registrar of Copyrights to grant to the applicant a license to publish the work or translation, subject to the payment of such royalty and subject to such other terms and conditions as the Copyright Board may determine.
Section 32 empowers the Copyright Board to issue a compulsory license to produce and publish a translation of literary or a dramatic work in any language after a period of 7 years from the first publication of the work.
Section 32A empowers the Copyright Board to grant a compulsory license where after the expiry of the relevant period from the date of the first publication of an edition of a literary, scientific or artistic work, copies of such edition are not made available in India.
Section 32B provides for the termination of a compulsory license where it is issued under Section 32(1A) or Section 32A, on the fulfillment of the conditions mentioned in that Section.
Rule 9 of the Copyright Rules prescribed the manner in which the Copyright Board shall determine royalties payable to the owner with respect to a compulsory license for a translation under Section 32. Rule 11D provides for the manner in which the Copyright Board shall determine royalties payable to the owner of the copyright in respect of compulsory licenses issued under Section 31A, Section 32 and Section 32A.
Rule 11C (4) provides that where there are more applicants than one seeking a compulsory license for translation of a work or for reproduction of the work or for publication of an unpublished work, then the Copyright Board make grant the compulsory license to such one of the applicants, as in the opinion of the Board, would best serve the interest of the general public.
Chapter VI relate to grant of licence, which can be divided into two parts; licences by owners of copyright and compulsory licenses.
Compulsory licences can be granted by the Copyright Board subject to the limitations contained therein. It cannot be said to be an exception to the general rule in the strict sense of the term as the provisions relating to grant of license by owners of Copyright and compulsory licenses operate in different fields. It may be true that while passing an order for grant of compulsory licenses, the relevant factors as laid down therein must be kept in mind which would include the right of the owner of the copyright as a part of the right of property, but where a statute is to be construed as a balancing statute, the situation may be different.”