COPYRIGHT

WORKS IN WHICH THE COPYRIGHT SUBSISTS

Works in which copyright subsists (Section 13)

Copyright subsists in following classes of works:

a) Original literary, dramatic, musical & artistic works

b) Cinematograph films and

c) Sound recordings

The copyright will subsist in a work if the following conditions are fulfilled;

a) In the case of a published work:

i) the work is first published in India, or

ii) where the work is first published outside India, the author is at the date of such
publication, or in a case where the author was dead at that date, was at the time of his death, a
citizen of India;

b) In the case of an unpublished work other than work of architecture the author is at the
date of making of the work a citizen of India domiciled in India; and

c) In the case of a work of architecture, the work is located in India. The copyright
subsists only in the artistic character and design. It does not extend to processes or methods
of construction.

A work published in India shall be deemed to be first published in India notwithstanding that
it has been published simultaneously in some other country, unless such other country
provides a shorter term of copyright for such work; and a work shall be deemed to be
published simultaneously in India and in another country

if the time between the publication in India and the publication in such other country does not
exceed thirty days or such other period as the Central Government may, in relation to any
specified country, determine. (Section 5)

For the purposes of this Act publication means making a work available to the public by
issue of copies or by communicating the work to public. Communication to the
public(Section 2(ff)) means making any work available for being seen or heard or otherwise
enjoyed by the public directly or by any means of display or diffusion other than by issuing
copies of such work regardless of whether any member of the public actually sees, hears or
otherwise enjoys the work so made available, Communication through satellite or cable or
any other means of simultaneous communication to more than one household or place of
resident including residential rooms of any hotel or hostel shall be deemed to be
communication to the public.
3. Original Works

The copyright Act, 1957 requires that the literary, dramatic, musical and artistic work
will be protected only if they are original. The word original is not defined in the Act but
has been explained by judiciary in a number of cases.

The basic premise in all the cases is that law does not permit one man to make a profit and to
appropriate to himself what has been produced by the skill, labour and capital of others

Question papers: In the University of London Press Ltd. v. University Tutorial Press Ltd.

. The preparation of a question paper by any examiner involves selection, judgment and
experience. The questions are prepared to fest the students acquaintance with the book.

To abridge in the legal sense of the word is to preserve the substance, the essence of the work
in language suited to such a purpose, language substantially different from that of the
original. To make such an abridgment requires the exercise of mind, labour, skill and
judgment brought into play, and the result is not merely copying.

Compilation : According to Berne Convention Article 2(5) the collections of literary

or artistic works such as encyclopedias and anthologies which, by reason of the
selection and arrangement of their contents, constitute intellectual creations shall be
protected as such, without prejudice to the copyright in each of the works forming part
of such collection. The Indian Copyright Act does not specifically deal with
compilations but judiciary has followed the definition laid down in Berne Convention
and treated compilation and collective work as original literary work. The Privy
Council in Macmillan & Co. v. Cooper (1989) RPC 469 while approving the
decisions of Supreme Court of the US in Emerson v. Davies (1845) held:

It is necessary that to secure copyright for a product compilation, labour, skill and
capital should be expended sufficiently to impart to the product some quality or
character which the raw material did not possess and which differentiates the product
from the raw material.

The Court further clarified that where there is a common source, the person
relying on it must prove that he actually went to the common source from where he
borrowed, employing his own skill, labour and brains and that he did not merely copy.

(d) Copyedited judgments

According to the copyright Act the reproduction or publication, of any judgment or order of a
court Tribunal or other judicial authority does not amount to infringement of
copyright.(Section 52) If copyright is recognized in the copyedited version of the law reports
then it world amount to giving the publishers a monopoly in the judgments of the court which
is against the intention of the legislature. In Eastern Book Co. v. D.B. Modak [2008(36) PTC
SC], the Supreme Court held that the copyedited judgments produced by publishers of
Supreme Court Cases will not be protected by copyright merely by establishing amount of
skill, labour and capital put in the copyedited judgments. It is necessary that such skill and
labour invested should be sufficient to communicate or impact to the judgment printed in
SCC some quality or character which the original judgment does not possess and which
differentiates the original judgment from the printed one. To claim copyright, the author must
produce the material with exercise of his skill and judgment which may not be creativity in
the sense that it is novel or non-obvious, but at the same it is not a product of merely labour
and capital.

Literary work

The copyright Act does not define literary work except that it includes computer
programmes, tables and compilations including computer databases. Section 2(o).

Literary work means any work written or printed in any language. It need not be of
literary quality i.e. may not have any literary merit. Examples of literary works are as
follows:

Fiction, nonfiction, novel, poem, story etc.,

Published or unpublished works

Newspaper, magazine, journal, pamphlet, book etc

Dramatic work section 2(h)

Dramatic work includes;

Any piece for recitation;

Choreographic work or entertainment in dumb show:

Scenic arrangement or acting form of which is fixed in writing or otherwise;

Dramatic work does not include cinematograph films. The principles applicable to
literary works are applicable to dramatic works.

6. Musical work Section 2(p)

Musical work means a work consisting of music and includes any graphical notation
of such work but does not include any words or any action intended to be sung, spoken or
performed with the music.

Adaptation of a musical work is also entitled to copyright protection. Adaptation

means any arrangement or transcription of the work.

Artistic work Section 2(c)

Artistic work means

 Painting, drawing including a diagram, map, chart or plan: Drawing includes a
mechanical or an engineering drawing but does not include one traced from another as it is
not original. Any painting or a drawing is protected by copyright even though it does not
have any artistic quality. Operas, musicals solo instruments, few instruments in the form of
sonatas, chamber music etc. or many instruments like bands & orchestras.

Engraving which includes etchings, lithographs, wood cuts, prints and other similar
works;

Photograph which includes photolithograph and any work produced by any process
analogous to photography but does not include any part of a cinematograph film;

Works of sculpture including casts and models;

Work of architecture meaning any building or structure having an artistic character or

design, or any model for such building or structure. For example layout of a garden
containing steps, walls, ponds etc.

Any work of artistic craftsmanship

8. Cinematograph film Section 2(f)

It means any work of visual recording on any medium produced through a process
from which a moving image may be produced by any means and, includes a sound recording
accompanying such visual recording, Cinematograph shall be construed as including any
work produced by any process analogous to cinematography including video film. The author
of cinematograph film is the producer according to section 2 (d)(v).

Copyright does not subsist in a cinematograph film if a substantial part of the film is an
infringement of the copyright in any other work. Section 13(3) The performance of cine
artist is not protected by the Act.

9. Sound Recordings

According to section 2(xx), Sound recording means a recording of sounds from which
such sounds may be produced regardless of the medium on which such recording is made or
the method of which the sounds are produced. Copyright will subsist in a sound recording
only if it is lawfully made [Section 13(2)(b)]. The author of sound recording is the producer.
Copyright in the music vests with the composer whereas in the recording vests with the
producer of the sound recording.

Section 52 A introduced in 1984 requires certain particulars to be displayed on sound

recording or video films or video cassettes, like name and address of the person who had
made the sound recording, name and address of the owner of the copyrights in the work. Year
of its first publication, certificate granted by the Board of Film.

10. Basic Propositions under copyright law

 The Supreme Court in R.G. Anand v. M/s Deluxe Films (AIR 1978 SC 1613) after
analyzing a number of authorities and case laws gave following propositions:

1. There can be no copyright in an idea, subject-matter, themes, and plots or historical or

legendry fact and violation of the copyright in such cases is confined to the form, manner and
arrangement and expression of the idea by the author of the copyrighted work.

2. Where the same idea is being developed in a different manner, it is manifest that the
source being common, similarities are bound to occur. In such a case the courts should
determine whether or not the similarities are on fundamental or substantial aspects of the
mode of expression adopted in the copyrighted work. If the defendants work is nothing but
literal imitation of the copyrighted work with some variation here and there is would amount
to violation of the copyright. In other words, in order to be actionable the copy must be a
substantial and material one which at once leads to the conclusion that the defendant is guilty
of an act of piracy.

3. One of the surest and the safest test to determine whether or not there has been a
violation of copyright is to see if the reader, spectator or the viewer after having read or seen
both the works is clearly of the opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original.

4. Where the theme is the same but is presented and treated differently so that the
subsequent work becomes a completely new work, no question of violation of copyright
arises.

5. Where however apart from the similarities appearing in the two works there are also
material and broad dissimilarities which negative the intention to copy the original and the
coincidence appearing in the two works are clearly incidental no infringement of the
copyright comes into existence.

6. As a violation of copyright amounts to an act of piracy it must be proved by clear and

cogent evidence after applying the various test laid down by the case law discussed above.

7. Where however, the question is of the violation of the copyright of stage play by a
film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It
is manifest that unlike a stage play a film has much broader perspective, wider field and a
bigger background where the defendants can be introducing a varieties of incidents give a
colour and complexion different from the manner in which the copyrighted work has
expressed the idea. Even so, if the view ever after seeking the film gets a totality of
impression that the film is by and the large a copy of the original play, violation of the
copyright may be said to be proved.

11. Idea-Expression Dichotomy

 According to Article 9(2) of TRIPs, copyright protection shall extend to expression
and not to ideas, procedures, methods of operation or mathematical concepts as such. In
India, the copyright Act, 1957 does not have a similar provision but it is well settled by
judicial precedents that the copyright does not vest in an idea but in the expression of an idea.
A work is created only when a tangible form is given to an idea. Donoghue v. Allied
Newspapers Ltd. [(1937) 3 All ER 503] Farewell J. remarked, This, at any rate, it clear,
and one can state with this beyond all question that there is no copyright in an idea, or in
ideas.. if the idea, however brilliant and however clever it may be, is nothing more than an
idea, and is not put into any form of words or any form of expression such as a picture or a
play then there is no such thing as copyright at all. It is not until it is (if it may put it in that
way) reduced into writing or into some tangible form, that you get any right to copyright at
all, and the copyright exists in the particular form of language in which, or, in the case of a
picture, in the particular form of the picture by which, the information or the idea is conveyed
to those who are intended to read it or look at it.

In RG Anands case, the court compared the play with the film and held, On a close and
careful comparison of the play and the picture but for the central idea (provincialism which is
not protected by copyright), from scene to scene, situation to situation, in climax to anti-
climax, pathos, bathos, in texture and treatment and support and presentation, the picture is
materially different from the play.

Copyright v. Confidential Information Section 16

It is a well settled position that there is no copyright in an idea, theme or a plot. But, the
problem arises when the person who has thought of an idea or a plot for a Television show
conceptualizes that idea in the form of a concept note and gives to T.V. channel to consider
the option of converting the idea into work.

, whereas copyright protects material that has been reduced to permanent form, the general
law of confidence may protect either written or oral confidential communication. Copyright
is good against the world generally while confidence operates against those who receive
information or ideas in confidence. Copyright has a fixed statutory time limit which does not
apply to confidential information, though in practice application of confidence creases when
the information or idea becomes public knowledge. Further the obligation of confidence rests
not only on the original recipient, but also on any person who received the information with
knowledge acquired at the time or subsequently that it was originally given in confidence

The Bombay High Court is Urmi Juvekars case held, It is often stated that there is no
copyright in ideas. There are two aspects to this statement the first namely, that it is not the
concern to copyright enactments to protect ideas unless and until the ideas have found
expression in the form of a work of a category recognized as deserving of protection. The
second aspect is the corollary of the first, that once the ideas have been expressed in the form
of a work, it is the form of expression which is the subject of protection, not the ideas, which
themselves may be freely extracted from the work and absorbed and used by others to
produce their own works, so long as the form of expression of the work is not also taken. In
this respect, however, it is to be noted that the form of expression of a literary work does not
mean only the text in which that work is written, it may include the selection and
arrangement in a particular order of incidents, whether factual or fictional.

The same considerations apply to literary works whose principal purpose is to communicate
news, and indeed it is often stated that there is no copyright in news.

In this case the plaintiff had given shape to her idea by expressing it in a detailed concept
note and the production plan relating to the programme work in Progress. This had been
substantially reproduced by the defendant Channel, namely CNN IBN in its show titled as
Summer Showdown. For determining whether there was substantial reproduction or not the
court applied the average viewer test. According to this test the two works are not to be
compared with hypercritical and meticulous scrutiny but from the standpoint of the
observations and impressions of an average viewer.

III MEANING OF COPYRIGHT

Copyright is not a singular term but it comprises a number of rights under it. Section 14 of
the Act gives certain exclusive rights to the owners of the copyright called exclusive
economic right. The rights depend upon the kind of work owned by a person. The Act also
gives certain special rights to the authors vide section 57. These special rights are called
Moral rights under international conventions.

I. Exclusive Economic Rights

Copyright is a property right as one can exchange his rights for money. Section 14
enumerates these rights which can be transferred by the owner on consideration of money
from the transferee. Hence they are called Exclusive Economic Rights.

(a) Literary, dramatic or musical work

In case of literary, dramatic or musical work not being a computer programme the owner of
copyright has an exclusive right to do or authorize the doing of any of the following acts in
respect of a work or any substantial part thereof, namely

i) to reproduce the work in any material form including the storing of it in any
medium by electronic means;

Computer programme

Computer programme is a literary work, therefore, all the above stated rights given to a
copyright owner of literary work are also given to the copyright owner of computer
programme. However, two additional rights are also given:

2) To give on commercial rental or offer for commercial rental any copy of the computer
programme. This right will not apply in respect of computer programmes where the
programme itself is not the essential object of the rental.
The above two rights commonly clubbed under rental rights, are exceptions to the first
sale or exhaustion doctrine. The first sale doctrine allows the purchaser to transfer (i.e.
sell, lend or five away) a particular lawfully made copy of the copyrighted work without
permission of the copyright owner. This means that the copyright holders rights to
control the change of ownership of a particular copy ends once ownership of that copy
has passed to someone else.

Rights of Performers Sections 2(q,qq); Sections 38,38A,39,39A of chapter8

The performers were not given any protection under the copyright Act, prior to 1994. The
concerns of the performers have been addressed in three major international instruments:
1) Rome Convention of the protection of performers producers of phonograms and
Broadcasting Organization (1961); Agreement on Trade Related Aspects of Intellectual
Property (1994) and WIPO Performances and Phonograms Treaty (1996).

Violation of exclusive rights of owner:

Section 14 gives exclusive rights to owner of a copyright in original literary, dramatic,

musical and artistic works and cinematograph films and sound recordings. These rights
have already been explained in chapter II. Copyright is deemed to be infringed when any
person, without a licence granted by the owner of copyright or in contravention of the
licence so granted does anything, the exclusive right to do which is by this Act conferred
upon the owner of the copyright.

In R.G. Arands case, the Supreme Court held that in ascertaining as to whether a
substantial part of the work has been reproduced it cannot be dependant solely on the bulk
or length of the extract. Not only the quality but also the value is required to be looked at.
The ultimate test is: whether there is appropriate or more appropriately
misappropriation of the labour of another in the matter of expression? An infringement
of copyright is in the nature of invasion of a right to property and therefore the intention
of the infringement is irrelevant provided there is infringement.

In Urmi Juvekars case the court applied the test of impressions of an average viewer and
held that the standard is not to compare the two works with hypocritical and meticulous
scrutiny but from the standpoint of the observations and impressions of an average
viewer. In this case it was found that the defendants show titled Summer Showdown
was a substantial reproduction of Planintiffs work titled, work in progress.

In Super Cassettes Industries Ltd. v. Hamar Television Network 2011 (45) PTC 70(Del.)
the question arose whether the defendant took substantial extracts from the plaintiffs
musical work. The court held that there is complete convergence on the issue as to what
constitutes substantial taking and the law in India on this issue is not different from that
in England or United States. Therefore, while the extent of extract, that is, the
quantitative test has its part to play in determining infringement of a copyright work,
the quality is equally important. This is especially so, in the case of a musical work. A
single note may in certain cases lead to an infringement if it forms an essential part of
the copyrighted work. The test will have to be that of a lay hearer. The court after going
through the two works held that the extracts taken by defendant were substantial.

V AUTHOR AND OWNER OF COPYRIGHT

1. An author means: Section 2(d)

(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 film the producer .

(vi) In relation to any literary, dramatic, musical or artistic work which is computer-
generated, the person who causes the work to be created.

Owner of copyright

Section 17 of the Act lays down who is an owner of copyright. As per section 17, author
is the first owner of copyright. Some exceptions are given to this Rule under the provision
to section 17. The exceptions are as follows:

i) If a person in the course of his employment in a newspaper, magazine or a periodical

makes a literary, dramatic or artistic work under a contract of service for the purpose of
publication then the right of publication and reproduction vests with the proprietor of the
newspaper. In all other respects for example, right of communication to public,
translation right, adaptation rights etc. the author is the first owner of the copyright. This
can be overridden if there is an agreement to the contrary between the author and the
proprietor. The law, therefore retains the authority of the author to his property. The
fundamental test to be applied in determining whether a person is engaged in a contract
of service or contract for service is Is the person who had engaged himself to perform
these services performing them as a person in business on his own account? If the
answer to that question is yes then the contract is a contract for service, on the other
hand, if the answer is No then the contract is a contract of service.

ii. If a person for a valuable consideration gets a photograph taken, or a painting or

portrait drawn; or an engraving or a cinematograph film made then such a person is the
owner of copyright and not the author. However, there can be an agreement to the
contrary.

iii. In case of a work made in the course of the authors employment under contract of
service, the employer is the owner of copyright, unless there is an agreement to the
contrary. For example, a software engineer employed with an IT company develops a
software. The company automatically becomes the owner of copyright unless the contract
of employment specifies that the engineer will be the copyright owner.

iv. 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 there in
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;

v. 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;

vi. 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.

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.

vii. In the case of a work to which the provisions of section 41 apply, the international
organization concerned shall be the first owner of the copyright therein.

3. Assignment of copyright

The owner of the copyright in an existing work or the prospective owner of the copyright
in a future work may assign to any person the copyright either wholly or partially and
either generally or subject to limitations and either for the whole term of the copyright or
any part thereof:

In the case of the assignment of copyright in any future work, the assignment shall take
effect only when the work comes into existence. The amendment Act of 2012 disallows
the assignment of copyright in a manner which would allow the assignee to exploit the
copyright assigned to it via unspecified future technologies i.e. any medium or mode of
exploitation of a work which did not exist or was not in commercial use when the
assignment was signed.

Where the assignee of a copyright becomes entitled to any right comprised in the
copyright, the assignee as respects the rights so assigned, and the assignor as respects the
rights not assigned, shall be treated for the purposes of this Act as the owner of copyright
and the provisions of this Act shall have effect accordingly.

Assignee as respects the assignment of the copyright in any future work includes the legal
representatives of the assignee, if the assignee dies before the work comes into existence.

VIII REMEDIES FOR INFRINGEMENT OF COPYRIGHT

1. Introduction:

Infringement under section 51 can be categorized under five heads:

i) where a person does an act which is the exclusive right of the copyright owner

ii) acts regarding performances of copyrighted work

iii) importing of infringing copy

iv) making copies for sale, hire or display for trade

v) conversion of works

Remedies for infringement of copyright can be classified under three heads