IPR- COPYRIGHT

Copyright is a type of intellectual property that protects original works of authorship. In

copyright law, there are different types of works, including paintings, photographs, musical
compositions, sound recordings, computer programs, books, poems, blog posts, movies,
architectural works, plays, and so much more!

OBJECTIVES OF COPYRIGHT LAW

The primary objective of copyright is not to reward the labour of authors, but to promote the
progress of science and useful arts.

The objectives of copyright law are mainly twofold.

Firstly, the copyright law is developed by the nations to protect authors, composers, artists,
designers and other creative people as well as the film producers and producers of sound
recordings, who risk their capital in putting their works before the public, the right to their
original expression.

the copyright law also provides moral rights to the author. These are (i) right to claim
authorship of the work; and (ii) the right of integrity.

Secondly, the copyright law encourages others to build freely upon the ideas and information
conveyed by a work.

It also allows people to make some free uses of the copyright material.

In Eastern Book Company v. D.B. Modak,

the Supreme Court held that copyright is a right to stop others from exploiting the work
without the consent or assent of the owner of the copyright. A copyright law presents a
balance between the interests and rights of the author and of the public in protecting the
public domain, or to claim the copyright and protect it under the copyright statute.

One of the key requirements is that of originality.

1.3. Nature of Copyright

Copyright is an incorporeal property in nature. The property in the work is justified by the
fact that the right owner has created or made it. As he is the owner of the property, he can
dispose it off by outright sale (assignment of his right) or by licensing.

The property is an 'intellectual property' in the sense that it originates in the mind of person
before it is reduced to material form.

However, the ideas and thoughts merely exist in brain are not 'works' under the copyright
law. But once reduced to writing or other material form, the result becomes a work worthy of
protection.
Further, copyright is a bundle of exclusive rights. It is called a negative right which means
that the owner can prevent all others from copying his work, or doing any other acts, which
according to copyright law can only be done by him."

copyright subsists for a limited period of time. After expiration of this period, the work
passes into the "public domain". In other words, it becomes public property and can be
freely used by anyone without any hindrance. Thus, exclusive rights in copyrighted work for
a limited period serve public interest.

Assignment of Copyright (Section 18):

When it comes to copyright ownership, creators hold the power to assign their rights to
another individual.

Such an assignment has significant implications, as the assignee then gains all the rights
associated with the copyrighted work.

However, it’s essential to note that simply granting the right to publish and sell the work
does not amount to a complete assignment of copyright.

Once the assignee receives certain rights encompassed within the copyright, they are
considered the rightful owners of those specific rights.

Meanwhile, the assignor retains ownership of any unassigned rights.

If the assignee passes away before finishing the work, their legal representatives will receive
the assignment benefits.

1.4.3. Non-voluntary licences (compulsory or statutory licences)

A compulsory license allows the use of copyrighted material without obtaining the
owner’s consent beforehand.

It is often employed when the owner of the exclusive rights refuses to grant authorisation,
resulting in the work being withheld from the public.

In India, the Indian Copyright Act, 1957, specifically Section 31, governs the provisions
for compulsory licensing.

Under Section 31, if the copyright owner denies republishing or performing the work, or
refuses to allow the communication or broadcasting of the work to the public, the Copyright
Board can intervene.
After conducting an inquiry and providing an opportunity for the owner to be heard, the
Board may direct the Registrar of Copyrights to grant a compulsory license to the
complainant.

This license enables the complainant to republish the original work, broadcast it, or
communicate it to the public, as applicable.

Statutory licence is 'a licence under which the protected works can be freely used on
condition that the user will pay a royalty, fixed by the competent authority, to the body
designated by that authority and distributed in accordance with the rules established by the
latter.

Subject Matter of Copyright

According to section 13 of the Copyright Act, 1957, copyright subsists in the following
works:

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recordings.

The test of originality for a work to be original it is important that it has not been copied
from another work.

2.1. ORIGINAL LITERARY WORKS

Copyright subsists in an original literary work.

as the Copyright Act is not concerned with the originality of ideas, but with the expression of
thought, and in the case of a literary work, with the expression of thought in print or writing.
Originality = expression of thought. Such expression need not be copied from another work
but must originate from the author original or novel form,

An original literary work, therefore, is the product of the human mind consist of a series of
verbal or numerical statements

The expression "literary work" means not only such work which deals with any particular
aspect of literature in prose and poetry but also indicates work which is literature i.e. anything
in writing which could be said to come within the ambit of literary work.

It was held in Macmillan v. Cooper AIR1924, that it was the product of the labour, skill and
capital of one man which must not be appropriated by another, not the elements, the raw
materials, upon which the labour and skill and capital of the first had been expended. To
secure copyright for the product, it was necessary that the labour, skill and capital should
have been expended sufficiently to impart to the product some quality or character which the
raw material did not possess, and which differentiated the product from the raw material.

2.1.5. Does copyright subsist in ideas, plots or themes?

Copyright subsists in expressions, not in ideas. Idea is not a subject-matter of copyright."

In Donoghue v. Allied Newspaper, Ltd.," it was held that

If the idea, however brilliant and however clever it may be, it 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.

until it is reduced into writing, or into some tangible form, so that you get any right to
copyright and the copyright exists in the particular form of language 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 to look at it.

2.1.6. Copyright in concept note

Whether copyright subsisted in a concept note was an issue which came up before Delhi High
Court in

Anil Gupta v. Kunal Dasgupta - The plaintiff conceived the idea of producing a reality
television programme containing the process of match making to the point of actual spouse
selection in which ordinary persons would participate before a TV point audience.

The plaintiff devised a unique and novel concept of leaving it to the prerogative of a woman
to select a groom from a variety of suitors. The concept was named as "Swayamvar.

The plaintiff disclosed this concept to defendant under confidential agreement in 1998 and a
concept note was sent to him for the purpose of the production of the TV serial.

Subsequently, the plaintiff came to know about the defendant's plans of launching a high
reality show for matchmaking by the name of 'Shubha Vivah.

The plaintiff filed a suit for copyright violation of the concept of reality show of
matchmaking and violation of confidential information.

The court held:

An idea per se has no copyright. But if the idea is developed into a concept fledged with
adequate details, then the same is capable of registration under the Copyright Act.

The novelty and innovation of the concept of the plaintiff resides in combining a reality TV
show with a subject like matchmaking for the purpose of marriage.... Therefore, originality
lies in the concept of plaintiff by conceiving a reality TV programme of matchmaking and
spouse selection.

Therefore, the very concept of matchmaking in view of concept of the plaintiff giving choice
to the bride was a novel concept in original thought capable of being protected."

In India, the court, for the very first time held that 'concept' might be subject matter of
copyright protection.

2.1.7. Words or Slogans

In the court In Prestige Housewares (India) Limited v. Prestige Estates and Properties, held
that "there can be no copyright in word or words, but the right can only be in the artistic
manner in which it is written.

The court has also refused to recognize copyright in slogans.

The Delhi High Court in Pepsico Inc. v. Hindustan Coca Cola, examined the question as to
whether copyright subsists in slogans and words.

In this case, the plaintiff has registered the slogan "YEH DIL MANGE MORE" under the
Copyright Act, 1957. The plaintiff argued, inter alia, that the use of the phrase by the
defendant in their advertisements violated the copyright of the plaintiff. The court held that
the advertising slogans were prima facie not protectable under the Copyright Act, 1957. They
could be protected under the Trademark Act 1999.

2.1.8. Fictional characters

A fictional character is a word portrait and the physical appearance and characterization
reside in the mind of the reader. Such imagination is brought about by reading about the
character through the pages of a book.

The character, therefore is not apparent for the reader. Protection is granted to fictional
characters only when the court is made to believe beyond doubt that the characters are well
delineated.

In Warner Brothers Pictures v. Columbia Broadcasting Systems" the court held that no
character was protectable under copyright law unless the character was extremely well-
delineated as to constitute 'the story being told' rather than merely being a 'chess man in the
game of telling the story.

In Universal City Studios v. Kumar Industries," the character ET was held copyrightable
because of its being a unique and distinctive character about whom the movie revolved.

2.1.10. Abridgment
Copyright subsists in an abridgment of a literary and dramatic work.

Abridgment mean to reduce a large work into a small one by preserving the sense and
meaning of the entire work.

In Macmillan v Cooper, the court cited following passage from the Copinger's Law of
Copyright (1904) (p.39):

To constitute a true and equitable abridgment, the entire work must be preserved in its precise
import and exact meaning, and then the act of abridgment is an exertion of the individuality
employed in moulding and transfusing a large work into a small compass, thus rendering it
less expensive and more convenient both to the time and use of the reader.

Original computer Programmes

For copyright to subsist in a computer programme, the computer programme must be
"original' and 'recorded in writing or otherwise. It merely means that the programme has been
the result of a modest amount of skill, labour or effort and that it originates from the author.

2.3. ORIGINAL DRAMATIC WORKS

An original dramatic work is the product of human mind, arrived at by the exercise of
substantial independent skill, creative labour or judgement, which requires acting or dancing
for its proper representation and is of a sufficiently definite and permanent nature as to be
capable of being recorded in writing." In Green v. Broadcasting Corp. of New Zealand, Lord
Bridge stated that a dramatic work must be capable of performance.

2.3.1. Choreographic work

Choreography is the art of arranging or designing of ballet or stage dance in symbolic

language. In order to qualify for copyright protection, it must be reduced to writing. The form
of writing is immaterial.

2.4. ORIGINAL MUSICAL WORKS

The Copyright Act, 1957 defines "musical work" to mean 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.
In order to qualify for copyright protection, a musical work must be original.

Section 2(p) makes it clear that musical work is the music itself and the graphical notation of
such music but does not include any words or any action intended to be sung, spoken and
performed with the music. Therefore, the statute has made a distinction between musical
work and a song which may or may not be without music. But even a song is sung which has
music it will not become a musical work under the said section.

2.5. ORIGINAL ARTISTIC WORKS

Section 2(c) of the Copyright Act, 1957 defines "artistic work" to mean:

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving
or a photograph, whether or not any such work possesses artistic quality;

(ii) a work of architecture; and

(iii) any other work of artistic craftsmanship.

Cinematograph Films

The Copyright Act, 1957 defines "cinematograph film" to mean any work of visual recording
and includes a sound recording accompanying such visual recording and the expression
"cinematograph" shall be construed as including any work produced by any process
analogous to cinematography including video films.

2.6.1. Do cinematograph films require to be original?

Unlike literary, dramatic, musical and artistic works, the Copyright Act does not stipulate that
cinematograph films must be 'original' to qualify for copyright protection.

Sound recordings
Section 13(3) of the Copyright Act, 1957 provides that copyright does not subsist in any
sound recording made in respect of a literary, dramatic or musical work, if in making the
sound recording, copyright in such work has been infringed.

Further, it is provided by section 13(4) that copyright in a sound recording does not affect the
separate copyright in any work in respect of which or a substantial part of which, the film, or
as the case may be, the sound recording is made.
The underlying literary and musical works do not lose their existence upon a cinematograph
film or sound recording being made. All the works remain mutually exclusive and the
ownership therein can be exercised to the extent prescribed by the Act.

5.1. Introduction Author moral rights

the Copyright Act also protects moral rights of the author. Moral rights flow from the fact
that a literary or artistic work reflects the personality of the creator, just as much as the
economic rights reflect the author's need to keep body and soul together.

In Amarnath Sehgal v. Union of India, the Delhi Court observed:

In the material world, laws are geared to protect the right to equitable remuneration. But life
is beyond the material. It is temporal as well. Many of us believe in soul. Moral rights of the
author are soul of his works. The author has a right to preserve, protect and nurture his
creations through his moral rights.
Moral rights originated in French law. The moral rights are exceptions to the general rule that
after an author has assigned his rights in favour of a publisher or other person, the latter alone
is entitled to sue in respect of infringements. The author has a right to claim moral rights in
the work even after the assignment of copyright.

5.2.1. Right of paternity

Right of paternity means that an author has a right to claim authorship of his work and can
prevent all others from claiming authorship of his work. The author also has a right to
adaptation of a demand that his name should appear in all copies of his work at the
appropriate place. He can also prevent others from using his name in their works.

5.2.2. Right of integrity

Right of integrity means that an author has a right to prevent distortion, mutilation or other
alteration of his work, or any other action in relation to the said work which would be
prejudicial to his honour or reputation. This right is important particularly where a licence or
assignment has been granted to adapt or alter the work in some way, e.g. novel into play, play
into film, etc. It is for the courts to decide the borderline between the adaptation and
distortion.

5.3. MORAL RIGHTS IN INDIA

Section 57 of the Copyright Act, 1957 recognizes moral rights of the author. The provision is
based on Article 6 b is of the Berne Convention. It provides that. independently of the
author's copyright and even after the assignment, either wholly or partially of the said
copyright, the author of a work shall have the right- (i) to claim the authorship of the work;
and (ii) to restrain, or claim damages in respect of any distortion. mutilation, modification or
other act in relation to the said work if such distortion. mutilation, modification or other act
would be prejudicial to his honour or reputation.
 5.3.1. Mannu Bhandari Case

The first dispute in respect of author's moral rights came before the court 30 years after the
enactment of Copyright Act, 1957.

In Mannu Bhandari v. Kala Vikas Pictures Lid AIR 1978."

The parties, however, settled their dispute out of court, but on the request of counsel for the
parties Justice S.B. Wad pronounced the judgement as there was no decision of the court of
law before this case on the interpretation of section 57 of the Copyright Act, 1957.

Facts

Mannu Bhandari, being the author of Hindi novel Aap Ka Bunty, had copyright in the work
which included inter alia, the exclusive right to make a cinematograph film in respect of the
work.
In April 1983, she assigned her cinematograph rights in the novel to the Kala Vikas Pictures
Pvt. Ltd. for a consideration of Rs. 15000/-. It was agreed that the author would allow the
scriptwriter who was directing the film to make certain modifications in the novel in
discussion with her to make it suitable for a successful film- version of it.

Differences started arising between the parties from the very beginning.

The first objection was about the title of the film which was resolved by the parties.

The next objection was raised by the author with regard to the end of the film.
In the novel in the end the child was admitted in hostel by his natural father while the film
showed that the child died of starvation after he ran away from the house.
The court justified the end of the film, but felt that the manner in which the death was
presented to the two families and the entire scene in the mortuary were too crude, brash and
nauseating' and directed that the part of the end of the film which showed a large number of
dead bodies spread on the table in the mortuary and the desperation of the families to identify
the child's body should be deleted from the film.

The court, while discussing the object and scope of section 57 made some important
observations.
The court observed that section 57 was a statutory recognition of the intellectual property of
the author and therefore it should be protected with special care.
The court observed further that the author should have a right to claim authorship of the work
as well as a right to restrain infringement or to claim damages for the infringement. These
rights are available to the author even after the assignment either wholly or partially of the
said copyright.
1.5. NEIGHBORING RIGHTS/RELATED RIGHTS

The concept of "neighboring rights" which is also known as "related rights" emerged
primarily due to technological developments which took place since the second half of the
nineteenth century. The recognition to these rights at international level was, however
accorded in 1961 by the Rome Convention.

The term "neighboring rights" generally covers three kinds of rights:

1. the rights of performing artists in their performances,

2. the rights of producers of phonograms in their phonograms,eoste
3. the rights of broadcasting organizations in their radio and television programmes

Protection of those who assist intellectual creators in communicating the message of the
author or creator of a work and help to disseminate works intended by their creators and
authors to be conveyed to, and enjoyed by the public at large, is sought to be provided by
what are known as neighboring rights or rights neighboring on copyright.

1.5.1. Reasons for recognizing neighboring rights

The reason for protecting neighboring rights is that since works of human intellect are created
in order to be disseminated among as large as possible and this cannot always be done by the
author himself, for it often requires intermediaries whose professional capability gives to the
works those forms of presentation that are appropriate to make them accessible to a wide
public, all persons, therefore, who make use of literary, artistic, dramatic, or musical works in
order to make them publicly accessible to others require their own protection against the
illegal use of their contributions in the process of communicating the work to the public.
These persons, as discussed above, are generally performing artists, record producers and
broadcasters.

The rights of performers are recognized because their creative intervention is necessary to
give life, e.g. to musical works, dramatic and choreographic works, and motion pictures.

The rights of producers of phonograms are recognized because their creative, financial and
organizational resources are necessary to make recorded sounds available to the public in the
form of commercial phonograms.
The rights of broadcasting organizations are recognized because of their role in making
works available to the public and in light of their justified interest in controlling the
transmission and retransmission of their broadcasts.

Term of Copyright Protection

 For literary, theatrical, musical, and artistic works, the term is the author’s lifetime
plus 60 more years after the author’s passing.

 For photographs, cinematographic films and sound recording, the term is only 60
years.

Rights Safeguarded by Copyright

Copyright safeguards two types of rights:

1. Economic rights

Owners of copyright are entitled to economic rights. These rights are known as economic
rights because they allow the owner to profit financially from the use of his creation.
Economic rights are not equally granted to all works under the Copyright Act of 1957. In
other words, these rights are organised in line with groups of works protected by copyright.
As a result, the economic rights available for films are different from those for books.

2. Moral rights

By virtue of his moral rights, the author is entitled to maintain, guard against destruction, and
nurture his works. Moral rights are distinct from economic rights and continue to belong to
the author even after he has licenced or assigned all of his economic rights to another party.
This means that these rights are perpetually owned by the author and cannot be the subject of
a transfer.

Copyright Infringement

1. Primary Infringement

Primary infringement describes the actual act of duplicating the owner’s work. Using
photocopies of books to distribute them commercially is one example.

2. Secondary Infringement

A copyright is infringed only when an unauthorised individual copies a substantial portion of

the work. It deals with different types of trade, such as selling unauthorised publications,
duplicating a lyricist’s catchphrase, and so on.
Section 51 of the Copyright Act, 1957, deals with the infringement of copyright. According
to this section, copyright is deemed to be infringed:

(A) When someone uses a copyright without the owner’s permission to:

 Do anything for which only the owner is allowed exclusive rights under this
Copyright Act.

 Grants permission for the financial gain of such a piece, which is going to be used for
communication to the public; doing so would violate the author’s copyright.

(B) When a person does any of the following:

 Creates, sells, hires, distributes for the purpose of sale, exhibits in public, or imports
into India any copies of the work that are infringing.

Remedies of Copyright Infringement

The remedies for copyright infringement are:

1. Civil remedy

2. Criminal remedy

3. Administrative remedy

Only the first two remedies, i.e. civil and criminal, have any actual practical significance.

1. Civil Remedies

Here are some of the civil remedies provided under the Indian Copyright Act of 1957:

I. Interlocutory Injunctions

The owner of the work files an interlocutory injunction, asking the court to prevent the
individual from utilising the copyrighted literary work.

An injunction may be issued before the trial and only last until the conclusion of the trial or
until subsequent orders are made,

II. Pecuniary Remedies

2. Criminal Remedies

Criminal remedies for copyright violation include:

 Punishment through imprisonment that may not be less than 6 months but may extend
to 3 years.

 Fines shall not be less than Rs. 50,000 but may extend to Rs. 2,00,000.

 Search and seizure of infringing goods.

  Delivery of infringing goods to the owner of the copyright.

3. Administrative Remedy

When an infringement occurs through an importation (bringing of goods into a country from
abroad for sale), administrative remedies provide petitioning the Registrar of Copyrights to
impose a restriction on the import of infringing copies into India and delivering the
confiscated infringing copies to the copyright owner.