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COPYRIGHTS

According to The World Intellectual Property Organization (WIPO), a Copyright is a


legal term describing rights given to creators for their literary and artistic works.
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It
further says that the works covered by copyrights are literary works such as novels,
poems, plays, reference works, newspapers and computer programs; databases; films,
musical compositions, and choreography; artistic works such as paintings, drawings,
photographs and sculpture; architecture; and advertisements, maps and technical
drawings.
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o Copyright law is a branch of that part of the law, which deals with the rights of
intellectual creators.
o Copyright law deals with particular forms of creativity, concerned primarily
with mass communication.
o Copyright law, however, protects only the form of expression of ideas, not the
ideas themselves.
So what copyrights actually protects is creative works which can be clothing patterns,
labels and fabrics in a material form which is the original work of the author and
place of publication. Copyright confers this right to the author by giving him the right
to reproduction and copying, adaptation, distribution and communication of his
original work for 70 years after the death of the author or 50 years after the recording
is done (UK and Europe).
Copyright literally means right to copy.
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According to copyright law mere ideas are
not protected, but the ways in which it is expressed are protected.
According to the Copyright, Designs and Patents Act 1988: -
1) Copyright and copyright works
(1)Copyright is a property right, which subsists in accordance with this Part in
the following descriptions of work
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films or broadcasts, and

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http://www.wipo.int/about-ip/en/copyright.html
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http://www.wipo.int/about-ip/en/copyright.html
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http://www.worldwideocr.com/Copyright_Fashion_designs.asp
(c) the typographical arrangement of published editions
(2)In this Part copyright work means a work of any of those descriptions in
which copyright subsists.
(3)Copyright does not subsist in a work unless the requirements of this Part with
respect to qualification for copyright protection are met (see section 153 and
the provisions referred to there).
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CRITERIA FOR PROTECTION OF COPYRIGHT
Under the Indian law one or more of the following conditions should be satisfied by
the work under consideration to qualify for copyright protection: -
(a) It should be original;
(b) It should be literary, dramatic musical work or cinematograph film or sound
recording;
(c) In case it is not covered by (a) or (b) above, it should be a work of an
organisation declared by Central Government as an International Organisation
under section 41 or, one covered under section 40 if it is a foreign work;
(d) In case of design, it should not be registered under Design Act, 1911;
(e) It should be a work, which is covered by the act as regards protection of
copyright.
OBJECT OF COPYRIGHT LAW
The foundation of Copyright law is that, the law does not permit one to appropriate to
him, what has been produced by the 1) Labour, 2) Skill and 3) Capital of another. The
object of this law is to protect the author of a work from a 1) unlawful reproduction
or 2) exploitation of his work by other. The law also prevents others from exercising
any other form of right attached to copyright for example right of making a dramatic
version, cinematograph version, translation, adaptation or abridgement. If an author
has written a book named Oliver then a filmmaker is not allowed to make a film with
the same story as this right is only with the writer and the filmmaker shall procure
right before remaking the book into a movie from the original author.
It is interesting to note that the exploitation of a work is actually done by
entrepreneurs like publishers, film producers, or sound recording producers to whom

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A. Christie & S. Gare, Blackstones Statutes on Intellectual Property (10
th
Edition, Oxford
University Press, New York 2010)
the owner of the copyright assigns or licences the particular rights. In such a case if
there is no legal protection for the copyright for a particular period then no
entrepreneur will undertake publication of books or production of sound recordings or
films.
WHAT IS ORIGINAL?
Originality is defined as the ability of thinking independently and creatively. The
question as to what is original was answered in the case of University of London Press
Ltd. V. University Tutorials Press (1916) 2 Ch. 601. Peterson J said: The word
original does not in this connection mean that the work must be the expression of
original or inventive thought. Copyright Acts are not concerned with the originality of
ideas but with the expression of thought, and, in the case of literary work, with the
expression of thought in print or writing. The originality which is required relates to
the expression of the thought.
Though there can be no copyright in the reproduction of the judgment of a Court, the
situation is otherwise when some notes are added to it and paragraphs are made in the
process of reporting. In Eastern Book Co. v. Navin J. Desai and Others 2001 PTC
(21) 243 (Del.) it was held that in case law reports the copyright subsists in head
notes, editorial notes etc. Recently, a single judge bench of Kerala High Court had, in
Infoseek Solutions and Another v. Kerala Law Times and Others 2007 (34) PTC 231
(Ker.), held that the copyright of the reporter extended to a report of the judgment
which may include, besides head-notes the editorial notes, the entire text of the
judgment. It was held to be a literary work under Section 13(1)(a) of the Indian
Copyright Act, 1957
In Eastern Book Co. & others v. D. B. Modak and another, where the appellants were
bringing out reports of the apex court entitled Supreme Court Cases and the
defendants had verbatim copied the same for their CDROM The Laws, the apex
court observed that so far as the reporting of a judgment was concerned there could be
no copyright in it. However, the Court held the defendant guilty of infringement of
the appellants copyright because the latter had made new paragraphs and added their
own notes to the judgments before reporting which, in the opinion of the Court, had
induced the element of originality to the reports published by the appellants.
EXAMINATION PAPERS ARE ORIGINAL LITERARY WORKS
The High Court of Allahabad in 1967 made an observation similar to that in the
University of London Press Ltd. v. University Tutorials Press, when it held that the
examination papers were original and literary work for the purposes of the Indian
Copyright Act, 1957. W. Broome J of Allahabad High Court made these remarks in
Agarwala Publishing House, Khurja v. Board of High School and Intermediate
Education. He said: The words literary works in Section 13 are not confined to
works of literature in the commonly understood sense but include all work expressed
in writing whether they have any literary merit or not. The word original in Section
13 does not imply any originality of ideas but merely means that the work in question
should not be copied from some other work and should originate in the author, being
the product of his labour and skill. Thus question papers are original literary works
within the meaning of Section 13and copyright can be claimed in respect of them.
COMMONPLACE INFORMATION NOT COPYRIGHTABLE
There is no copyright in a work that is taken out of commonplace information. In
Cramp v. Smythson, the plaintiffs claimed that the information they had published in
their Lite Blue Diary for 1933 had been copied by the defendants in their diary
Survey Lightweight Diary 1942. The House of Lord rejected their claim and said :
but the bundle of information furnished in the respondents diary is commonplace
information which is ordinarily useful (and) iscommonly found prefixed to diaries,
and, looking through the respondents collection of tables, I have difficulty in seeing
hoe such tables in the combination in which they appear in the respondents 1933
diary, can reasonably claim to be original work.
NO COPYRIGHT IN A WORD
In Exxon Corporation v. Exxon Insurance Consultants, the Court of Appeal declined
to recognise plaintiffs copyright in the word Exxon which the court felt was
simply an artificial combination of four letters of alphabet which serves a purpose
only when it is used in juxtaposition with other English words, to identify one or other
of the companies in the plaintiff group
NO COPYRIGHT IF MATTER NOT IN A SCRIPT FORM
In Green v. Broadcasting Corporation of New Zealand, where the plaintiff and
defendant broadcast similar shows with the similar title opportunity knocks, the
House of Lords held that no copyright had been infringed because the plaintiff could
not prove that any part of the show was reduced to a written text which could
properly be called a script.
In Wiseman v. George Wiedenfeld &Nicolson, where a man had helped an author in
converting the latters novel into a play, the Court turned down the mans claim for
joint authorship because the Court found the he virtually took no part in writing any
single line of the dialogue.
NO COPYRIGHT IN A FOLK SONG
In Roberton v. Lewis, it was held that nobody could claim a copyright in the tune of a
folk song. Cross J distinguished it from the decision in Walter v. Lane and said that
the law under Copyright Act, 1842 which was applied to that case did not provide that
in order to be entitled to copyright a work must be original whereas the Act of 1911
and Act of 1956 (in U.K.) did require that the work be original in order to be
copyrightable. He said: There (i.e. in Walter v. Lane) the short hand writers took
down the words of speeches from the lips of a speaker who had not previously
reduced his words into writing. In this case (i.e. Roberton v. Lewis) no one knows
who the author of the tune was but in the long period of time which must have elapsed
since it first came into existence it must have been sung or piped on innumerable
occasions, and many of those who sung or piped it may have written down the notes
either to aid their own memories or to enable them to teach it to others.
2) Author of a work means the person who has actually created that work. This
means if he fixes any creative expression in a tangible medium, and this expression
has not been copied from any existing work, then he has created a set of right in that
expression and this right is called copyright. This copyright will give the author a
material right over his creative expression and through this right he can control the
ways in which his work can be used.
AUTHOR AND OWNERSHIP OF COPYRIGHT
Statutory Provisions Section 2(d) and 17 of the Act.
2. Interpretation. - In this Act, unless the context otherwise requires: -
(d) "author means: -
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph or sound recording the producer; and
(vi) in relation to [any literary, dramatic, musical or artistic work which is computer-
generated, the person who causes the work to be created]
17. First owner of copyright Subject to the provisions of this Act, the author of a
work shall be the first owner of the copyright therein provided that-
(a) in the case of a literary, dramatic or artistic work made by the author in the course
of his employment by the proprietor of a newspaper, magazine or similar periodical
under a contract of service or apprenticeship, for the purpose of publication in a
newspaper, magazine or similar periodical, the said proprietor shall, in the absence of
any agreement to the contrary, be the first owner of the copyright in the work in so far
as the copyright relates to the publication of the work in any newspaper, magazine or
similar periodical, or to the reproduction of the work for the purpose of its being so
published, but in all other respects the author shall be the first owner of the copyright
in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a
painting or portrait drawn, or an engraving or a cinematograph film made, for
valuable consideration at the instance of any person, such person shall, in the absence
of any agreement to the contrary, be the first owner of the copyright therein;
(c) in the case of a work made in the course of the author s employment under a
contract of service or apprenticeship, to which clause (a) or clause (b) does not apply,
the employer shall, in the absence of any agreement to the contrary, be the first owner
of the copyright therein;
[(cc) in the case of any address or speech delivered in public, the person who has
delivered such address or speech or if such person has delivered such address or
speech on behalf of any other person, such other person shall be the first owner of the
copyright therein notwithstanding that the person who delivers such address or
speech, or, as the case may be, the person on whose behalf such address or speech is
delivered, is employed by any other person who arranges such address or speech or on
whose behalf or premises such address or speech is delivered;]
(d) in the case of a Government work, Government shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein;
[(dd) in the case of a work made or first published by or under the direction or control
of any public undertaking, such public undertaking shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein.
Explanation.- For the purposes of this clause and section 28A, "public undertaking"
means-
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act, 1956; or
(iii) a body corporate established by or under any Central, Provincial or State Act;]
(f) in the case of a work to which the provisions of section 41 apply, the
international organisation concerned shall be the first owner of the copyright
therein.
NO COPYRIGHT IN WORK DONE DURING COURSE OF EMPLOYMENT
In A & M records Ltd. v. Video Collection International Ltd., Graham Pullen, an
agent of Inside Edge the service company of well known skaters Torvill and Dean
who wanted two tunes recorded for use with their ice dance routines employed a
conductor Mr Ross to produce suitable renderings of two tunes, and Ross in turn
employed a freelance arranger, Cyril Payne, to assist him.
The British Broadcasting Corporation relayed and recorded one of Torvill and Deans
performances where these two tunes were used, and licenced the defendants to sell
videos of it.
In a dispute on who owned the copyright the Court decided in favour of the Inside
Edge because Mr Ross had been employed for the purpose by it and hence, he could
not be held as owner of the copyright since he was not author of the sound recording
made for the Inside Edge.
There are certain instances where the employee can claim copyright in a work during
the course of employment viz works other than one related to the nature of
employment shall vest in the employee rather than the employer.
The general principle is that if a person s employed to do a job and paid for his
services the product of his labour subject to any agreement to the contrary, belong to
the employer. The copyright in a work done by an employee on his own time and not
in the course of his employment belongs to him.
A contract of service and a contract for service is distinct from each other as in the
contract of service the relationship is that of an employer-employee; whereas in a
contract for service the relationship is that of an independent contractor and the
person who engages the contractor for a specified work.
COMMISSIONED WORK
A commissioned work is different from a freelance work. An author may create a
work for a valuable consideration at the instance of another person. In such cases in
the absence of any contract to the contrary, the person at whose instance the work is
made is the owner of the copyright.
TEACHERS WORK
A teacher is entitled to copyright of work he has written (e.g. a book he has written on
the topic he teaches), as he is the author of the work and he is employed to teach and
not to write books. Similarly in absence of any contract to the contrary, the copyright
in an examination question paper, is vested in the paper setter and the Examination
Board or any other such authority.
In case of a musical work: -
The first owner of the copyright in a musical work is the composer
Where the work is composed in the course of employment under the contract
of service, the employer will be the first owner of the copyright
The person who commissions a musical work is not the owner of the copyright
but he merely gets a licence to use the work for the purpose for which it is
commissioned (this does not mean that the composer has waived his copyright
in that work).
Same principle will follow in case an Artistic works as in Musical work, but if an
employer is a newspaper or a magazine then his right is restricted to the use of the
work for publication in the newspaper or magazine.
The author of a sound recording is the producer and he is also the owner of the
copyright therein. The producer of a sound recording is considered to be the person
who takes the initiative and responsibility for making the work. Hence, a person who
is not only financing the production of a sound recording, but also taking necessary
legal steps that makes a person producer of such sound recording.
Compare the case of Wiseman v. George Wiedenfeld & Nicolson with Najma
Heptulla v. M/s. Orient Longman Ltd. and others.
3) Duration of a copyright is the time period for which the copyright subsists on the
owner. It starts as soon as the above mentioned literary works are fixed into a
tangible medium e.g. for a poet the copyright over that poem will start as soon as he
has written down that poem in a tangible medium i.e. a piece of paper and not when
he has actually registered or published his poem. A copyright registration is
necessary so that it can identify the creator of that work in case there is some conflict
of interest in that subject matter, and further guarantees the right to the rightful owner.
But even if someone copies the work of that poet before the poem has been registered
the poet still has right to claim for his copyright. The only hindrance in case of
claiming the ownership of an unregistered copyright is that the owner has to prove
that the infringer had the access to the original work of the author or there was a
scope that the work could have been accessible to the infringer.
o In UK for literary, dramatic, musical, films, or artistic works a copyright
expires at the end of the period of 70 years from end of the calendar year in
which the author dies. If the work is computer generated then it is 50 years.
For sound recordings and broadcasts it is for the period of 50 years from the
end of the calendar year in which the recording or broadcast was done.
o In USA the copyright in a work is for a period of 70 years after the death of
the author.
o In India 60 years after the death of the author.
o In case of joint authorship 60 years after the death of last author
o For orphan works 60 years after the death if the identity is disclosed else 60
years from publication.