GOVERNMENT COPYRIGHT

AND
PUBLIC USE

Intellectual Property Rights-II

VI semester
January 2014-April 2014
(Winter session)

Diksha Goyal
B.B.A. LL.B.
Roll No- 020

Total Number of Consultation-5

Total Number of Words-

Objective
The main objective of this paper is to analyse the legal position of copyright in the area of
government works. Copyright is a right that is given to the author for protection of his
literary, creative, dramatic and artistic works. As it is stated in various laws, statutes and as a
matter of jurisprudence the first owner of copyright is the author. Now it becomes very
difficult to analyse who will be the author in case of governmental work. Moreover, since
government represents public at large it becomes equally more important to define what will
be the extent of public use for the governmental work. This paper seeks to resolve all these
issues while delving upon various concepts stated in the statutes and developed through
various case laws in the courtrooms. Moreover, it further seeks to draw a comparison
between the laws of various countries with respect to the same.

Hypothesis
While pursuing the government copyright and public use for research, following
presumptions are made by the author:
1. The judgements

Research Questions
Following are the research questions which the present paper seeks to address:
1. What is the concept of Government Copyright?
2. What is Public Use?
3. What is the extent of Government Copyright in India?
4. How far public can take the benefit of government work?
5. Government works for public purpose. Whether the public is justified to use
government work since government is not a living person ?
6. What are the justifications that are given for government copyright?

7. What is the current position of Government Copyright and public use vis-a-vis Indian
Copyright Act, 1957?
8. What is the position of Government Copyright under laws of various other countries?
9. Can a comparison be drawn between Indian laws and foreign laws vis-a-vis
Government copyright and public use?
Scope
The scope of this paper is limited to analysing the broad concept of Government Copyright
and public use through various statutory laws and case laws. The author has tried to seek
into the position of government copyright developed in Supreme Court and other honourable
courts of India while keeping Indian Copyright Act of 1957 in the main light. Furthermore,
the author has restricted the scope to a very conceptual and theoretical understanding of the
project topic while analysing the concept through the perspectives of Indian and some foreign
laws like US, UK, Australia etc.

Research Methodology
The author has relied on both primary and secondary sources for research while placing main
reliance on primary sources. The author has also looked into various books, articles,
documents and cases relating to the Government Copyright works and public use.
Furthermore, various search engines for seeking foreign judgements are referred. Cases and
statutes are analysed with regard to both Indian and foreign condition so as to find what is the
extent and current position of copyright law in this regard.

Introduction
Copyright is an important right and one of the important contributors in the development
process of India. The enrichment of our national heritage is proportional to the kind of
protection that is being given to our literature, dramatic, musical and artistic works,
cinematographic films and sound recordings.1 Earlier, in the ancient days, copyright was
granted as a matter of fame rather than earning a living. Moreover, there was no question of
1 V.K.Ahuja, Intellectual Property Rights in India, 1 (2012, Lexis Nexis Publications), pp.16.

copying since copying was in itself difficult task for it being very expensive and sweat taking.
Later with the development of technology and various other instruments and ways meant for
copying, the importance of copyright was recognized all over the world. In this stream, India
also enacted a copyright act and laid down an exhaustive and broad area of copyright.
The main objective of copyright is to provide to the owner of copyright the right to reproduce
the work in any material form, to issue copies of the work to the public, etc. Normally, it is
not difficult to decide on the question as to who has authored any copyright work, but
sometimes this question can become a herculean task to solve since only the answer of this
question would decide to whom the work which is sought for copyright belongs.
These questions become more problematic when a copyright is claimed by the government as
there is no human body that can be called government.2 Government itself is divided into
several ways. The government is not a living person, neither it is some tangible entity rather it
is a group of those people who are meant to govern. These people are so elected by the people
of India for work in their benefit. Now, while considering this, the main question that arises
is that government which is sought to work for public development and work on public
money can take copyright over the work which is developed on public money and time. The
answer is very vague and unclear. Hence, while granting copyright and seeking infringement
proceedings it becomes very difficult to determine which way should be followed. This paper
is focused on determining what would be the scope of government copyright and how it is
determined. Furthermore, it also draws a comparison between the scope of government
copyright in India and other countries like US, UK etc.

Government Copyright: A Concept

Copyright can be called as a form of property.3 This means that like every property which
associate itself with some kind of price in the market, copyright need to have same. This
2 Donoghue v Allied Newspapers Ltd (1937) All ER 503.

3What is an Intellectual Property, World Intellectual Property Organisation (WIPO),

http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pd
f, last accessed on 28th March, 2014, 4:00 pm.

question becomes crucial while deciding the extent of government copyright. Government,
meaning state authorities, legislature other public corporations and institutions in the course
of their duties and works generates a large quantity of texts that could be claimed for
copyright protection. Or in other words, these works can be brought under the category of
artistic, literary, dramatic or musical works which are qualified for protection of copyright.
Think of a documentary made by government for the promotion of education in rural India,
or various literature produced during the course of awakening public at large in terms of
health and hygiene. All these materials can claim copyright protection. In addition to these
copyrightable material, public sector undertakings and organisation also collects and
produces a large amount of information which could also claim copyright subject to the guard
granted by the sui generis database. Thus we can call government one among the largest
holders of copyright. Government can also by way of addition, compilation, and processing
of the information can add some value to the information and then claim copyright
protection.4
Government Copyright vis-a-vis Indian Copyright Act
Indian Copyright act, 1957 identifies the copyright protection of government under section
17(d) read with section 2(k). Section 175 talks about the ownership of copyright and rights of
the users flowing from therein. Section 17(d) states that government can be called as the
author or the first owner in the cases of Government Work. It also provides for the condition
that in such cases where there will be an agreement to the contrary, the agreement shall be
given priority over section 17(d)6. The use of the word unless makes it an exception to
provision section 17(d)7. So in cases where government itself enters into an agreement to
bestow the copyright to some person in case of any of the government wok then later,
4Judith Bannister, Public Access to Copyright works submitted to Government, Vol 36,
Federal Law Review, p.382,
http://flr.law.anu.edu.au/sites/flr.anulaw.anu.edu.au/files/flr/Bannister.pdf last accessed on
28th March, 2014, 7.00 p.m.

5 Section 17 of Indian Copyright Act, 1957.

6 ibid.

government cannot claim copyright over those areas. In such cases the determination of what
will constitute a government work plays an important role.
Government work is defined under section 2(k)8 of the Indian Copyright Act. This section
states that all those work, the production and publication of which is done either by the
government or any of its department directly or by Indian Legislatures or by any court,
tribunal or any other judicial authority will be classified as government work. These work,
thus can be claimed for the copyright protection under section 17(d)9 by the Indian
Government.
Though government will be the true owner of the copyright in case of government work as
defined under section 2(k) as stated in Copyright act, 1957, but it would also be subject to
section 52 of the India Copyright Act. In other words, government would not have copyright
over all those government works which are already in public domain.
In case of Eastern Book Company vs. D.B.Modak10, Appellants (Eastern Book Co.) was
publishing a report over Reported and Unreported Judgements of Supreme Court in name of
SCC. The question that came before the supreme court was whether SCC is entitled to
copyright protection inspite of it being a copy of Judgements of Supreme court, on which, as
a matter of fact, government has ownership, under section 17(d) read with section 2(k) of
Indian Copyright Act. The apex court held that since the judgements or judicial
pronouncements of Supreme court are already in Public Domain, its reproduction or
production in the form of SCC would not infringe the copyright, which the government has
over it, for it being the first owner, unless and until it is expressly prohibited.11
7 ibid.

8 Section 2(k) of Indian Copyright Act, 1957.

9 Section 17(d) of Indian Copyright Act, 1957.

10Eastern Book Company v D.B.Modak, AIR 2008 (SC) 809,

http://indiankanoon.org/doc/1062099/ last accessed on 28th March 2014, 5.00 p.m.

11ibid.

Other major case for consideration in this regard is the case of Agrawala Publishing House
vs Board of High School12, a petition was filed by a publishers firm against the Regulations
of the Board of High School and Examination, U.P., which declared that the copyright over
the question papers set at examination will be vested under the Board. The question that came
before Allahabad High Court was whether Board will have a copyright protection over the
examination papers. The court came to the conclusion that the Board did not directly exercise
control over production of question papers. In fact, it engages persons who have expertise in
that field of education and after just prescribing the curriculum; the board leaves the work to
carry out on themselves based on their own discretion and skill. The court found out that the
paper settlers are not the employees or servants of the board and not working under contract
of service, infact, are independent persons, working under contract for service and thus are
not subject to direct control by the board. Since the papers are not under the direct control of
the Board a.k.a Government in this case, the Board will not have the copyright protection
over examination papers and the authors of question papers will be the owners of copyright.
Through this case, the judiciary once again made itself clear that for a copyright to subsist
over government work, it is a fundamental condition that the government should have direct
control over the work that is to be done or already done. The work that is done by the various
departments that are coming under government should work on the terms of contract of
service13 and not under contract for service14 where government do not exercise control
over such work.
In the case of J.N.Bagga v State, the facts were that Messrs. Law Book company which is the
respondent in the present case was a firm which used to publish various books in the field of
law. They also published reprints of various statutes enacted by the Central Government
which was objected by the central government. The government claimed copyright over those
12Agrawala Publishing House v Board of High School, AIR 1967 All 91,
http://indiankanoon.org/doc/1183558/ last accessed on 29th March 2014, 7.00 p.m.

13 Mulla, Indian Contract Act, 13th edition, Lexis Nexis Publication, 2011, pp.423-424 as
cited on Agrawala Publishing House v Board of High School, AIR 1967 All 91,
http://indiankanoon.org/doc/1183558/ last accessed on 29th March 2014, 7.00 p.m

14 ibid.

prints under section 18 of the old copyright act which was similar to the present copyright act
of 1957. The court held that since the acts are in public domain, people are at liberty to
republish them subject to the condition that there will not be any change in the original
character of the act. This was done to avoid any harmful or incorrect usage of laws
prevailing.
On this basis we can conclude that government copyright has two main exceptions; firstly, if
there is an agreement in contrary then the government copyright shall not prevail and
secondly it would fail if government works are already in public domain. Since the area of
copyright is still developing in India along with other IPR, there are not many cases
considering this matter.

Public Use
Indian Copyright Act, 1957 does not anywhere uses the term public use explicitly. The term
Public use literally means that public can use the copyright, without taking any permission
from the author, independently and without any fear of liabilities that could be associated for
infringement of such copyrighted work.15 Moreover, on use of such copyrighted work, the
public need not to pay the licensing fee as well. Though this concept is not embedded
anywhere under the ambit of Indian Copyright Act, 195716 explicitly but according to my
personal opinion this concept, in essence, can very well be located under section 52 of the
same. Section52 state all those acts which will not constitute infringement of copyright, in
other words, public use of all those copyrighted work will be allowed under the conditions
given under section 5217 of the Indian Copyright Act.18 This concept of public use is
equivalent to the concept of public domain concept as prevalent under Indian Copyright
Act, 1957 and recognised by Indian Courts.
15 Paul Torremans, Holyoak and Torremans Intellectual Property law, 6th editon, Oxford
University Press, 2010, pp. 1214-1215.

16 Indian Copyright Act, 1957.

17 Section 52 of Indian Copyright Act, 1957.

The concept of Public Use is in fact a concept, developed by United States Supreme Court
in the case, Kelo v City of London19 where the United States Supreme Court empowering US
government with the power of eminent domain, recognised that US government has authority
to take private property without consent.
In India, since it is not expressly stated anywhere, courts are reading the concept of public
use under section 52 of Indian Copyright Act. The various conditions being in public
domain, fair dealings and fair use of the copyright work given under section 52 (a), for the
purposes of judicial proceedings given under section 52(d), for the purposes of research or
private study given under section 52(p), work published under official gazette etc given
under section 52(q) where there will no infringement of copyright and where the public use
of the work is permitted.20

Government Copyright: Various other countries

1. Government Copyright In United States:
As per section 17 USC S.10121, a work which is produced by an officer or employee of the
United States Government as part of his official duties during his course of employment will
18Eastern Book Company v D.B.Modak, AIR 2008 (SC) 809,
http://indiankanoon.org/doc/1062099/ last accessed on 28th March 2014, 9.20 p.m.

19 Kelo v City of New London, 125 S. Ct. 2655 (2005) as cited on Brent Nicholson, Sue ann
Mota, From Public Use to Public Purpose: The Supreme court stretches the takings clause in
Kelo v City of London, Vol 41, Harvard Law Review, pp.82,
http://blogs.gonzaga.edu/gulawreview/files/2011/02/NicholsonMota.pdf last accessed on 29th
March 3.00 p.m.

20 Section 52(a), section 52(d), section 52(p), section 52(q) of Indian Copyright Act, 1957.

21Copyright Law of the United States of America, Circular 92, 17 USC S.101,
http://www.copyright.gov/title17/92chap1.html#101 Last accessed on 30th March 2014, 11.00
a.m.

constitute a a work of United States Government. Government cannot claim copyright over
all those work which are produced by all those persons employed under the services for
contract by the government. In the case of Herbert vs. United States22, the court stated that it
is not necessary for a work to
be classified under government work that it should be specifically assigned to a person,
instead the work coming under the course of employment or official functions including
research will be sufficient for the classification. Though government work is defined under
U.S. laws but it is not protected. 17 U.S.C S.105 states , Copyright protection is not
available for any work of the United States Government, but the United States is not
precluded from receiving and holding copyrights transferred to it by assignment, bequest, or
otherwise.23 It states that when a copyrighted work gets transferred to the government, it
becomes the rightful holder of that copyright and can exercise copyright protection over such
work.24 Though this section only applies to federal government, state and local government
can claim copyright in their publications. They are allowed to set all the policies with which
they want themselves to be governed.25

22 Herbert v United States , 36 Fed. Cl. 299 (Fed. Cl.1996).

23 Copyright Law of the United States of America, Copyright act 1976 as amended, Circular
92, 17 USC S.105, http://www.copyright.gov/title17/92chap1.html#101 Last accessed on 30th
March 2014, 11.00 a.m.

24Issues affecting the U.S. Government, CENDI/ 2008-1, (October 9, 2008),

http://www.cendi.gov/publications/04-8copyright.html#toc30

25 ibid.