COPYRIGHT: INTRODUCTION:

Copyright relates to literary and artistic creations, such as books, music, paintings and
sculptures, films and technology-based works (such as computer programs and electronic
databases). In certain languages, copyright is referred to as authors’ rights. Although
international law has brought about some convergence, this distinction reflects an historic
difference in the evolution of these rights that is still reflected in many copyright systems.
The expression copyright refers to the act of copying an original work which, in respect of
literary and artistic creations, may be done only by the author or with the author’s permission.
The expression authors’ rights refers to the creator of an artistic work, its author, thus
underlining that, as recognized in most laws, authors have certain specific rights in their
creations that only they can exercise, which are often referred to as moral rights, such as the
right to prevent distorted reproductions of the work. Other rights, such as the right to make
copies, can be exercised by third parties with the author’s permission, for example, by a
publisher who obtains a license to this effect from the author.

WORKS IN WHICH COPYRIGHT SUBSISTS

Literary works

For the purpose of copyright law, "literary" works do not necessarily have to possess literary
merit see section 2(o). Further, what is protected, is not the idea, but its formal expression in
writing. Agarwala Publishing House v. Board of High School and Intermediate Education
AIR 1967 All. 91. Copyright can therefore be claimed in compilations of various types.
Macmillan v. R.C.Cooper, AIR1924P.C. 75. N.T.Raghunathan v. All India Reporter, AIR
1971 Bom. 48, R.G.Anand v. Delux Films, AIR 1978 S.C. 1613. In particular, it can be
claimed in encyclopaedias, lexicons etc. In fact, section 35(1) of the Indian Copyright Act,
1914, specially mentioned them.

Dramatic works

As defined in section 2(h) of the Copyright Act, a dramatic work includes "any piece for
recitation, choreographic work or entertainment in dumb show, the scenic arrangement or
acting form of which is fixed in writing or otherwise, but does not include a cinematograph
film." Judicially also, it has been held that "dramatic work" does not include cinema films.
Fortune Films v. Dev Anand, AIR 1979 Bombay 17,23,24 holding that actor in a film is not
protected for his acting. Controversies have arisen by reason of adaptation of a story in aplay,
which is again made into a film. Indian Express Newspapers Ltd. v. Jagmohan, AIR 1985
Bom. 229.

Artistic works

Artistic works are defined by the Copyright Act as meaning a painting, sculpture,drawing of
any kind (including diagram, map, chart or plan), an engraving or a photograph, whether or
not such work possesses artistic quality. Besides this, an architectural "work of art" and any
other work of artistic craftsmanship are also artistic works. (Section 2(c).) Artistic quality, as
such, may not be required, but there has to be some use ofhuman labour and skill. D.C.S.
Bureau v. United Concern, AIR 1967 Mad. 381; Camlin Private Ltd. v. National Pencil
Industries, AIR 1986 Delhi 44.

Cinematograph films and Video films

"Cinematograph film" is defined in section 2(f) as including the sound track; and
"cinematograph" itself is defined as any work produced by any process analogous to
cinematography. Video films are also deemed to be produced by "a process analogous to
cinematography".

Records

The embodiment of sound, and its capacity for reproduction, are the two essentials of the
concept of "record" in the Copyright Act, section 2(w), where the expression is defined as
"any disc, tape, perforated roll or other device in which sounds are embodied so as to be
capable of being reproduced therefrom", other than a sound track associated with a
cinematograph Film.

Musical works

It has been held by the Supreme Court of India that the author (composer) of a lyric or
musical work, who has authorised a cinematograph film of his work by incorporating or
recording it on the cinematograph film, cannot restrain the owner of the copyright in the film
from (0) causing the sound portion of the film to be performed or projected on screen in
public for profit or (ii) from making any record embodying the recording in any part of the
sound tracks. The reasoning is, that section 14(i) &(iii) authorise the owner of the copyright
in the film to make any record embodying the recording in any part of the sound tracks
associated with the film. The decision has not escaped criticism. Indian Performing Rights
Society v. East India Motion Pictures Association AIR 1977 SC 1443

DURATION/TERM OF COYRIGHT IN INDIA

 In the case of original literary, dramatic, musical and artistic works, the duration
of copyright is the lifetime of the author or artist, and 60 years counted from the
year following the death of the author.

 In the case of cinematograph films , sound recordings, works of government and

MORAL RIGHTS OF AN AUTHOR

Moral rights are the embodiment of the natural rights of an artist has over what he has
created. Moral rights are personal legal rights belonging to the creator of copyright works and
not be transferred, assigned or sold. Moral in other words-"Moral rights are the rights
individual creators have in relation to copyright works or films they have created. Moral
rights are separate from the economic rights of the copyright owner, such as the rights to
reproduce the work or communicate it to the public."

Moral rights apply to:

Literary works such as most written material and including computer programs

Artistic works such as photographs, sketches, plans, maps, paintings, three dimensional
works from pottery to statuary and buildings, craft work and murals

Musical works Dramatic works such as plays and screenplays

Section 57 of the Act defines the two basic 'moral rights of an author. These are:

i. Right of paternity, and

ii. Right of integrity.

The right of paternity refers to a right of an author to claim authorship of work and a right to
prevent all others from claiming authorship of his work. Right of integrity empowers the
author to prevent distortion, mutilation or other alterations of his work, or any other action in
relation to said work, which would be prejudicial to his honour or reputation.

The proviso to section 57(1) provides that the author shall not have any right to restrain or
claim damages in respect of any adaptation of a computer program to which section 52 (1)
(aa) applies (i.e. reverse engineering of the same).

It must be noted that failure to display a work or to display it to the satisfaction of the author
shall not be deemed to be an infringement of the rights conferred by this section. The legal
representatives of the author may exercise the rights conferred upon an author of a work by
section 57(1), other than the right to claim authorship of the work.

In Amarnath Sehgal vs. Union of Indian & Another the court provided remedy for
infringement of his special rights or moral rights.

The plaintiff created a bronze mural for display at Vigyan Bhawan, New Delhi After
extensive preparation and research, plaintiff's untiring and stressful concentrated hard work,
spanning over a period of five years, eventually produced an acclaimed piece of artistic work
manifesting itself in the form of a 14 feet long and 40 feet high mural, demonstrating a
delectate balance between cultural and material aspects in national perspective essence of
rural and modern India being its them. The mural so created found its rightful place in
Vigyan Bhawan lobby right at its entrance, in the year 1962 and in due course of time
acquired the reputation of being one of the important historical murals representing essential
part of India's best art heritage. The plaintiff sought the following relief in the nature of:

A decree for declaration that the defendant has violated the plaintiff's special rights under
section 57 of the copyright Act, 1957 and the defendant is liable to be directed to tender an
apology,
A decree for permanent injunction restraining the defendant from, further distortion,
mutilation or damage the plaintiff's mural

A decree for damages of Rs. 50, 00,000 the compensate the plaintiff for the loss, injury, insult
and humiliation caused by the defendant to the plaintiff's reputation and honour and
A decree for delivery-up directing the plaintiff to return the plaintiff's mural to the defendant
for restoration at the defendant's cost and or return to the same to the plaintiff.

It was held by the court that copy right is a bundle of rights, which the author can exploit,
independently for economic benefit any exercising these rights. A copyright owner may
exploit his work himself or license others to exploit any one or more of the rights for a
consideration, which may be in the form of royalty or a lump sum. Payment copyright apart,
the author of a work has certain moral rights as well.

FAIR DEALING UNDER COPYRIGHT LAW IN INDIA

The laws relating to fair dealing have been incorporated in Section 52 of The Copyrights Act,
1957.

Section 52. Certain acts not to be infringement of copyright.

The following acts shall not constitute an infringement of copyright, namely,

(i) private or personal use, including research; (Research includes Teaching, lectures
delivered to impart knowledge to students etc.)
This is often considered as an important exception to Copyright Infringement as the use of
copyrighted material for the purpose of disseminating knowledge to the students by the
teacher in a classroom aptly falls under the fair dealing concept and is not considered as a
copyright infringement. One such landmark case where such an opinion was upheld was
“University of Oxford and others vs Rameshwari photocopy services” known as the DU
photocopy case. In the year 2012, the publishers filed an injunction suit against Delhi
University and Rameshwari Photocopy for infringement of the copyright materials. They
contended that the Delhi University made photocopies of some books and made a
compilation of it as a course pack for the purpose of the study and provided those course
packs to students on payment of nominal charges. The publishers claimed that it is a clear
case of infringement and course packs needs to be stopped. The publisher further claimed that
permitting photocopies would cause damage to the publication publishing industry.
Delhi University and photocopy service provider taken defence that the course packs are
cover under the fair use of copyrighted material. They mentioned clearly that the entire
compilation was extracted from different books and the sole purpose was to use in the course
of instructions by a teacher. 
Delhi University further submitted that all students would not be in a position to purchase all
books required in the offered course. Hence, the best possible way is to avail them by
providing compiled study materials.
In 2016, a single judge of the Delhi High Court ruled against the publisher. He mentioned
that the compilation of study materials from various books and making course pack protected
as fair use of the copyrighted materials. Hence, no infringement of the copyrighted materials. 
Being aggrieved by the order of the single judge Delhi High Court the publishers filed an
appeal to the Division Bench of Delhi High Court. On September 2016, the Division Bench
of Delhi High Court remanded the suit to the single judge Delhi High Court on the ground
that compilation of course pack would be in the use of the course of instructions by the
teacher.
On March 2017, The publishers withdrew the case from the Delhi High Court stating that
they understood the crucial role played by the course packs in the education of the students.
On December 2016 a Special Leave Petition was filed before the Hon’ble Supreme court by
the Indian Reprographic Rights Organization. In this petition, they challenged the decision of
the Division Bench of the Delhi High Court who ruled that the course packs in India is legal
for the purpose of education.
Hon’ble Supreme Court upheld the decision of the Delhi High Court on 9th May 2017 and
dismissed the petition. The very basis of this case that the Supreme Court has taken into
consideration the socio-economic conditions of India, the realities of the education system
and above all affordability of students due to growing modern technology in the education
system.
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a
lecture delivered in public.
(iv) the reproduction or publication of—
(i) any matter which has been published in any Official Gazette except an Act of a
Legislature;
(ii) any Act of a Legislature subject to the condition that such Act is reproduced or
published together with any commentary thereon or any other original matter;
 (iii) the report of any committee, commission, council, board or other like body
appointed by the Legislature, unless the reproduction or publication of such report
is prohibited by the Government;
(v) any judgment or order of a court, Tribunal or other judicial authority, unless the
reproduction or publication of such judgment or order is prohibited by the court,
the Tribunal or other judicial authority, as the case may be
A landmark case in this context is Eastern Book Company & Ors.. V D.B. Modak &
Another. Eastern Book Company (EBC). Appellant in this case, is a leading publishers of
law reports/journals in India. One such publication is a law report titled “Supreme Court
Cases” (“SCC”), containing all Supreme Court judgments. Raw judgments are copy-edited
by a team of assistant staff and various inputs are put in the judgments and orders to make
them user friendly. These include an addition of cross-references, standardization or
formatting of the text, paragraph numbering, verification and by putting other inputs.
The Respondents had allegedly copied the whole module from SCC to the CD ROM and all
modules in the software packages had been similar to the Appellants’ work. The respondents
had also allegedly replicated the Appellants’ way of publishing the legal reports by using the
same arrangements, sequencing, and selection of cases. Further, they also allegedly coupled
the entire text of the copied edited judgement as published in the Appellants’ law report,
along with the formatting, copy editing, paragraph numbers, footnote numbers, cross-
referencing, etc.
EBC moved to the Delhi High Court claiming for an interim injunction as the Respondents
had copied the copy-edited version of the Judgements of Supreme Court Cases, prepared by
the EBC. Both the Single Bench Judge and Division Bench Judges did not grant the
injunction by stating that making some changes in the original judgement doesn’t change the
character of the Judgement, and therefore, it won’t be considered as an original work. Hence,
the edited Judgement was not copyright, and there is no infringement.
EBC then moved to SC appealing against the decision of the High Court. The Apex Court
gave the decision in favour of Appellants. The Court held that every author should show that
the particular derivative work should be more than just a mere copy of the original work.
Moreover, it should have independent labour, skill, and capital of the author for getting
copyright protection of such derivative work under the Copyright Act, 1957. Further, it was
also stated by the Court that the literary part of the work has nothing to do with the copyright
as the part which is evaluated is the skills employed which should be substantial and not
trivial. The Apex Court also directed that even for internal references, the respondents were
not allowed to use the paragraphs made by the Appellants in their copy-edited version.

(vi) the reproduction of a literary, dramatic, musical or artistic work for the purpose of
a judicial proceeding or for the purpose of a report of a judicial proceeding;
(vii) the reproduction of a literary, dramatic, musical or artistic work—
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers, to such questions etc.

As the Indian Copyright Act does not defines the term "fair dealing" , the courts have on
various occasions referred to the authority English case Hubbard v Vosper2 on the subject
matter. The words of Lord Denning in this case lay down a much descriptive outline of fair
dealing-

"It is impossible to define what is "fair dealing". It must be a question of degree. You must
first consider the number and extent of the quotations and extracts.... then you must consider
the use made of them. Next, you must consider the proportions...other considerations may
come into mind also. But, after all is said and done, it is a matter of impression."

The Indian laws related to "fair dealing" is always considered rigid and conventional as it
provides an exhaustive list and any use falling out of the statutory list is considered as an act
of infringement. As the Indian courts have explored and unveiled the various facets of fair
dealing, they have said that there cannot be a definite or exhaustible list of uses which can
come within the purview of fair dealing but it has to be decided depending upon the facts and
circumstances of each case.

COPYRIGHT INFRINGEMENT

Copyright in a work is deemed to be infringed when any person:

1. does anything which the copyright owner has the exclusive right to do

2. permits any place to be used for the communication of a work to the public for profit if the
communication infringes the copyright in the work

3. makes for sale or hire, or sells or lets for hire, or by way of trade displays, distributes or
offers for sale or hire any infringing copies of a work
4. exhibits in public any infringing copies of a work by way of trade

5. imports into India any infringing copies of a work

A person is deemed to have infringed copyright only if he acts:

1. in contravention of a licence granted by the copyright owner or the Registrar of Copyrights

2. without a licence granted by the copyright owner or the Registrar of Copyrights

It is a criminal offence to knowingly infringe a copyright. Also, civil proceedings can be

Infringing copies of works and plates used to produce them are deemed to belong to the

PENALTIES AND REMEDIES AGAINST COPYRIGHT INFRINGEMENT:

If the copyright in any work is infringed, three types of action can be taken.

Civil proceedings can be initiated against a person who infringes copyright. The owner of the
copyright or exclusive licensee can pray to the Court for:

1. an injunction ( both temporary and permanent injunction, also included Mareva

2. damages for conversion and otherwise

3. an account of profits

Since knowingly infringing copyright is a criminal offence, infringers can be punished with:

1. imprisonment

2. fines

3. the seizure of infringing copies of the work

In addition to this, an administrative remedy in the form of an Anton Piller Order can be
obtained. These orders direct opponents to allow applicants to search their premises for
evidence (of infringement) and seize such evidence. They are granted if there is a very strong
prima facie case against the opponent. The suspected infringer is not warned in advance that a
search will take place. This ensures that he does not have the opportunity to conceal or
destroy evidence.