UNIT 1

Intellectual Property (IP) deals with any basic construction of human intelligence such as artistic,
literary, technical or scientific constructions. Intellectual Property Rights (IPR) refers to the legal
rights granted to the inventor or manufacturer to protect their invention or manufacture product.
These legal rights confer an exclusive right on the inventor/manufacturer or its operator who
makes full use of it’s his invention/product for a limited period of time.

Meaning of intellectual Property

Intellectual Property can be defined as inventions of the mind, innovations, literary and artistic
work, symbols, names and images used in commerce. The objective of intellectual property
protection is to encourage the creativity of the human mind for the benefit of all and to ensure
that the benefits arising from exploiting a creation benefit the creator. This will encourage
creative activity and give investors a reasonable return on their investment in research and
development.

Meaning of intellectual property rights

The intellectual property right is a kind of legal right that protects a person’s artistic works,
literary works, inventions or discoveries or a symbol or design for a specific period of time.
Intellectual property owners are given certain rights by which they can enjoy their Property
without any disturbances and prevent others from using them, although these rights are also
called monopoly rights of exploitation, they are limited in geographical range, time and scope.

Nature of intellectual Property

 Intangible Rights over Tangible Property: The main Property that distinguishes IP
from other forms of Property is its intangibility. While there are many important
differences between different forms of IP, one factor they share is that they establish
property protection over intangible things such as ideas, inventions, signs and
information whereas intangible assets and close relationships are a tangible object. In
which they are embedded. It allows creators or owners to benefit from their works
when they are used commercially.
 Right to sue: In the language of the law, IP is an asset that can be owned and dealt
with. Most forms of IP are contested in rights of action that are enforced only by legal
action and by those who have rights. IP is a property right and can, therefore, be
inherited, bought, gifted, sold, licensed, entrusted or pledged. The holder of an IPR
owner has a type of Property that he can use the way he likes subject to certain
 conditions and takes legal action against the person who without his consent used his
invention and can receive compensation against real Property.
 Rights and Duties: IP gives rise not only to property rights but also duties. The owner
of the IP has the right to perform certain functions in relation to his work/product. He
has the exclusive right to produce the work, make copies of the work, market work,
etc. There is also a negative right to prevent third parties from exercising their
statutory rights.
 Coexistence of different rights: Different types of IPRs can co-exist in relation to a
particular function. For example, an invention may be patented, and the invention
photograph may be copyrighted. A design can be protected under the Design Act, and
the design can also be incorporated into a trademark. There are many similarities and
differences between the various rights that can exist together in IP. For example, there
are common grounds between patent and industrial design; Copyright and
neighbouring rights, trademarks and geographical indications, and so on. Some
intellectual property rights are positive rights; the rest of them are negative rights.
 Exhaustion of rights: Intellectual property rights are generally subject to the doctrine
of exhaustion. Exhaustion basically means that after the first sale by the right holder
or by its exhaustion authority, his right ceases and he is not entitled to stop further
movement of the goods. Thus, once an IP rights holder has sold a physical product to
which IPRs are attached, it cannot prevent subsequent resale of that product. The right
terminates with the first consent. This principle is based on the concept of free
movement of goods which is in force by consent or right of the rights holder. The
exclusive right to sell goods cannot be exercised twice in relation to the same goods.
The right to restrict further movements has expired as the right holder has already
earned his share by the act of placing goods for the first sale in the market.
 Dynamism: IPR is in the process of continuous development. As technology is rapidly
evolving in all areas of human activities, the field of IP is also growing. As per the
requirement of scientific and technological progress, new items are being added to the
scope of IPR, and the scope of its preservation is being expanded. Bio Patents,
Software Copyrights, Plant Diversity Protection, these are few names which reflect
contemporary developments in the field of IPR. The importance of intellectual
property and its mobility is well established and reflected at all levels, including
statutory, administrative and judicial.

Scope of intellectual Property

The scope of IP rights is broad; two classification modes are used to determine whether IP is
copyright or Industrial Property. Industrial properties include patents or inventions, trademarks,
trade names, biodiversity, plant breeding rights and other commercial interests. A patent gives its
holder the exclusive right to use the Intellectual Property for the purposes of making money from
the invention.

An invention is itself a new creation, process, machine or manufacture. Having copyright does
not give you the exclusive right to an idea, but it protects the expression of ideas that are
different from a patent. Copyright covers many fields, from art and literature to scientific works
and software.

Reasons for promote and protect Intellectual Property

There are several reasons for promoting and protecting intellectual property. Some of them are:

1. Progress and the good of humanity remain in the ability to create and invent new
works in the field of technology and culture.
2. IP protection encourages publication, distribution, and disclosure of the creation to the
public, rather than keeping it a secret.
3. Promotion and protection of intellectual Property promote economic development,
generates new jobs and industries, and improves the quality of life.

Kinds of intellectual Property

The subject of intellectual property is very broad. There are many different forms of rights that
together make up intellectual property.

Copyright

Copyright law deals with the protection and exploitation of the expression of ideas in a tangible
form. The law of copyright provides not only a legal framework for the protection of the
traditional beneficiaries of copyright, the individual writer, composer or artist, but also the
publication required for the creation of work by major cultural industries, film; Broadcast and
recording industry; And computer and software industries. It resides in literary, dramatic,
musical and artistic works in ”original’ cinematic films, and in sound recordings set in a concrete
medium. To be protected as the copyright, the idea must be expressed in original form.
Copyright acknowledges both the economic and moral rights of the owner. The right to
copyright is, by the principle of fair use, a privilege for others, without the copyright owner’s
permission to use copyrighted material. By the application of the doctrine of fair use, the law of
copyright balances private and public interests.
Patent

Patent law recognizes the exclusive right of a patent holder to derive commercial benefits from
his invention. A patent is a special right granted to the owner of an invention to the manufacture,
use, and market the invention, provided that the invention meets certain conditions laid down in
law. Exclusive right means that no person can manufacture, use, or market an invention without
the consent of the patent holder. This exclusive right to patent is for a limited time only.

Trademark

A trademark is a badge of origin. It is a specific sign used to make the source of goods and
services public in relation to goods and services and to distinguish goods and services from other
entities. This establishes a link between the proprietor and the product. It portrays the nature and
quality of a product. The essential function of a trademark is to indicate the origin of the goods to
which it is attached or in relation to which it is used. It identifies the product, guarantees quality
and helps advertise the product. The trademark is also the objective symbol of goodwill that a
business has created.

Any sign or any combination thereof, capable of distinguishing the goods or services of another
undertaking, is capable of creating a trademark. It can be a combination of a name, word, phrase,
logo, symbol, design, image, shape, colour, personal name, letter, number, figurative element
and colour, as well as any combination representing a graph. Trademark registration may be
indefinitely renewable.

Geographical indication

It is a name or sign used on certain products which corresponds to a geographic location or

origin of the product, the use of geographical location may act as a certification that the product
possesses certain qualities as per the traditional method. Darjeeling tea and basmati rice are a
common example of geographical indication. The relationship between objects and place
becomes so well known that any reference to that place is reminiscent of goods originating there
and vice versa.

Industrial design

It is one of the forms of IPR that protects the visual design of the object which is not purely
utilized. It consists of the creation of features of shape, configuration, pattern, ornamentation or
composition of lines or colours applied to any article in two or three-dimensional form or
combination of one or more features. Design protection deals with the outer appearance of an
article, including decoration, lines, colours, shape, texture and materials. It may consist of three-
dimensional features such as colours, shapes and shape of an article or two-dimensional features
such as shapes or surface textures or other combinations.

Plant variety

A new variety of plant breeder is protected by the State. To be eligible for plant diversity
protection, diversity must be novel, distinct and similar to existing varieties and its essential
characteristics under the Plant Protection and Protection Act, 2001 should be uniform and stable.
A plant breeder is given a license or special right to do the following in relation to different types
of promotional material

HISTORY OF COPYRIGHT LAW IN BRITAIN

The first Copyright Statute in Britain was "The British Copyright Act, 1710”. The position
changed dramatically in England in the later seventeenth century. The political upheavals in that
country resulted in the dismantling of the whole structure of the system of control of printing and
dissemination of works. The royal prerogatives, on which the royal printing privileges were
founded, were abolished. The last of the Acts licensing regulations on printing expired in 1695.
As a consequence, the established printing trade was left without effective protection against
piracy and unauthorized imports. There were rights at common law for protection against
unauthorized considered, publication ineffective. and printing, but these were ill defined, and, it
was considered, ineffective.

The initiative of the printing trade and the publications distinguished authors and philosophers
provided the climate for the passing in 1710 of the Act 8 Anne C. 19, generally referred to as the
"First Copyright Act".

The 1710 Act established principles which have influenced the development of Law in this field
in Britain and the Commonwealth, the United States and other countries.

The Act is remarkable in a number of respects. First and foremost the law gave to the author (not
to the publisher, as the printing trade had probably expected) "The sole right and liberty" of
printing his books publishers could only acquire the right by assignment. It is said that the 1710
Act was in reality adopted for the benefit of publishers, but the fact remains that the author
became by statute the initial owner of/the printing right, and this right had to be acquired from
him by the printer.
HISTORY OF COPYRIGHT LAW IN UNITED STATES OF AMERICA (U.S.A.)

United States Copyright Law descends directly from the legal theory and practice established in
Britain. This is evident from wording used to codify the U.S. law, the mechanism by which
copyright was procured, and legal decisions from which U.S. courts drew to defence copyright.

The first important event in U.S. Copyright law history was that when the General Court of
Massachusetts Bay Colony granted the first recorded copyright in the U.S. Colonies in response
to a petition by John Usher, a wealthy merchant book seller. Under law, he sought to publish a
revised edition of the General Laws and Liberties of the Massachusetts colony, and to protect his
investment. He secured legislation that forbade printers from printing copies or selling the work
without his permission. This "private" copyright is the only one recorded during the first hundred
years of the colonial era. The next important step was when the continental Congress of U.S.
passed a resolution in March 1783 recommending that the individual states secure to authors and
publishers of new books the copyright of such books.

Twelve of the thirteen original states, all but Delaware, passed copyright laws between 1783 and
1786. They were generally based in language and in form on the statute of Anne, 1709.
According to Ploman and Hamilton the goals of these statutes were first to secure the authors'
right, second to promote learning, third to provide order in the book trade and fourth to prevent
monopoly.

These statutes passed by states contained two types of provisions, the first limiting the duration
of the term of protection, varying from an initial period of fourteen to twenty one years for
different states, with some states allowing renewal for an additional fourteen years by authors or
their heirs or assigns. In addition, five states Massachusetts, South and North Carolina Georgia
and New York had limits on the Copyright monopoly in the form of a "Justice Price". These
clauses stipulated that if the copyright owner, author or publisher set an unreasonable price on
any book, that is, above the cost figured for labour, expenses and risk, the court could in fact set
a reasonable price. Similarly, if a copyright owner attempted to limit the supply of a work, the
court could grant a license to publish it to another party. This limit on copyright monopoly
recognized that exclusive rights can backfire and actually under access to published works.

ÄII of these statutes recognized required registration of copyrights with local courts as the basis
of protection and possible litigations, pirates were punished by forfeiture or destruction of all
copies and by fines levied on a per page basis.

Thus separate copyright statutes were in place in different states of United States. But it was very
difficult to enforce successfully, different statues in different states because each state had its
own registry of copyrighted works by local authors and local publishers. Therefore, need for a
national system of copyright was felt at that time for the purpose of enforcement and support of a
national book trade with a growing interstate economy. The new nation required standardized
laws for the regulation of commerce including intellectual property. These demand for a national
copyright led to the adoption of the copyright and patent clause of U.S. Constitution, which reads
"the congress shall have the power ... to promote the progress of science and useful arts by
securing for limited time to authors and inventors and discoveries".

Congress followed up on the constitutional mandate adopted in 1789 and passed the first federal
copyright law in the Act of May 31, 1790. Following the English precedent, this law provided
protection only for the created statutory term granting the U.S. author of his or her heirs or
assigns "The sole right and liberty of printing, reprinting, publishing, and sending such works. It
stated explicitly that it did not intend to Prohibit publication and sale of works in the limited
states that were first written printed or published records.

However, it was again not immediately clear after passage of the Act whether the authors'
common law copyright had been supplanted. The notion of natural rights in inventive and
intellectual creativity was losing its resonance by the early 19th Century. The U.S. Supreme
Court addressed this tension in Wheatongn v. Peters. 1 It was held that copyright was a statutory
right created by Congress and was secured by following the formalities of registration notice and
deposit. The court thereby rejected the notion that an inventor or an author had a perpetual right
in the patent or copyright as well as the idea that certain legal rights of authors are retained even
after publication:

However, the Act of 1790 did not protect foreign authors. This has been commented as
"complete with the piracy provisions it can be viewed as the action of a developing country to
protect its burgeoning culture while exporting the cultural products of more developed nations"
but the unrestrained reprinting of popular English writer was disastrous for the growth of the
indigenous American literature. The situation was remedied by Copyright Act of 1891. The
present American law is contained in the Act of 1976 which is considered as the most major
copyright law in world dealing with most of the problems in copyright legislation resulting from
progress of technology.

HISTORY OF COPYRIGHT LAW IN INDIA

The history of copyright law in India is a history of series of legislature enactments both in
Britain regime as well as independent India. The importance of copyright protection was
recognized since ancient times but particularly after invention of printing press during the 15th
Century importance increased. The history of copyright law in India can be into two phases.

(I) Copyright law before independence

(II) Copyright law after independence

(I) Copyright law before independence

As before 1947 India was under British rule, therefore, most of th laws applicable in India were
British. The English Copyright Act, 1842 was held to be applicable to India by High Court of
Bombay in MacMillan a; Khan Bahadur Shamsul Ulama Zaka, even when this Act was not
expressly made applicable to India.

a. Indian Copyright Act, 1847 :

The first Indian specific statute applicable in India was "The Indian Copyright Act, 1847”. It was
passed by the Governor General of India in Council on 15th December, 1847". This legislation
was in operation during the period 1847-1911.

b. Imperial Copyright Act, 1911 :

The Imperial Copyright Act, 1911 was passed by British legislature in England and extended
throughout the British domains.

c. The Indian Copyright Act, 1914 :

The Act of 1914 consisted of 15 sections. The infringement of copyright law as not considered as
a criminal offence under the Act. It authorized the owner of copyright to destroy the infringing
copies. The following were some of the important provision laid down in the legislation .

(i) The registration of the author's work was not necessary.

(ii) The author's right came into existence as soon as the work was created.

(iii) The protection was afforded not to the idea but the material form in which the idea was
expressed.

(iv) Only original works attracted the protection of the copyright law.

(v) The term of copyright protection was fixed as the lifetime of an author and 25 years after
his/her death.

(Il) Copyright law after independence

a. Indian Copyright Act, 1957

The Imperial Copyright Act, 1911 was a law in force in the territory of India immediately before
the commencement of the constitution, and is continued in force by virtue of Article 372(1) of
the constitution. The contention that under the term of Section 25 of the Imperial Copyright Act,
1911, itself the provisions of the Act were inapplicable to the self governing dominions and that
when India attained the status of self-governing dominion by reason of the India Independence
Act, 1947, the Indian copyright Act of 1911 ceases to apply to India is incorrect as the words
'self governing dominion' under section 35(1) of the Imperial Copyright Act, 1911 includes only
'Canada, Australia, New Zealand, South Africa and New Foundland' and India not becomes
automatically added to that list by its attaining self governing status on August 15, 1947.

Thus, even after independence, the pre-independence legislation drafted by the British legislature
continues to operate and it ceased only after the Copyright Act, 1957 was drafted which came
into operation on January 21, 1958.

The Copyright Act, 1957 is in conformity with the following international conventions —

i. Berne Convention, 1886 and, ii. Universal Copyright Convention, 1952

India has participated in both the conventions, which was revised at Paris in 1971 providing
special concessions in favour of developing countries enabling them to grant compulsory
licenses for translation and reproduction of foreign work required for educational purposes.

INTERNATIONAL CONVENTIONS AND TREATIES ON PROTECTION OF

COPYRIGHT

Under this head following conventions and treaties for protection of copyright have been
discussed

1. The Berne Convention, 1886

The Berne Convention is the oldest international treaty in the field of copyright. By the middle of
the nineteenth century, it was realized that some form of international co-operation was
necessary so that common rules could be established for the protection of authors and their
works. There was an International Congress on the subject in Brussels in 1858, but the
international meetings held in Paris in 1878 provided the impetus which led to the adoption of
the first international convention in the field some eight years later. The Paris meetings of 1878
saw the founding of L'Association Litteraire et Artistique Internationale, the International

Literary and Artistic Association (ALAI), under the Presidency of victor Hugo. ALAI promoted
conferences and studies which led to the preparation of a draft convention, considered in its
various stages at Diplomatic Conferences in Berne, Switzerland in 1884 and 1885. Finally, the
new convention was adopted in Berne in 1886. Two basic principles of the convention were
established in 1886 and have not been altered

i. The principle of national treatment : each member of the Union grants nationals of other
Members States the same treatment as it grants its own nationals.

ii. The principle of minimum rights certain minimum rights are granted to authors who are
protected under the convention.
2. The Universal Copyright Convention, 1952

One of the major problems in international copyright law in the period preceding and
immediately following the Second World War was the disharmony resulting from the fact that
the United States was not a member state of the Berne Convention. The United Nations
Educational Scientific and Cultural Organization (UNESCO) promoted the adoption a
convention which would provide reciprocal protection on conditions Of could be accepted by the
United States. Thus the Universal copyright Convention (UCC) came into being in Geneva in
1952.

The Berne Convention and the UCC still continue to exist, side by side. Recent trends indicate, r
however, providing that UCC may largely have fulfilled its important role by providing a
stepping stone to greater international protection possibly the fact that China joined the Berne
Convention (1992) and not the UCC is an indication of this. Further more the Berne standard on
protection of economic rights is now obligatory for all numbers of the World Trade
Organization.

3. The Rome Convention, 1961

Sound recording producers, performers and broadcasting organizations increasingly found that
they needed international protection similar to that enjoyed by authors. The proponents of the
traditional views as to pre-eminent nature of authors' rights, however, would not accept the
inclusion of related rights in the Berne Convention. Nevertheless, the Brussels Revision
Conference of the Berne Convention, 1948, passed resolutions that Governments of the Union
should study ways in which sound recording makers, broadcasters and performers could be
protected. This gave impetus to studies which had already begun, aimed at the formulation of an
International Convention for related rights. Thus, it came about that, after years of negotiations,
the Rome Convention 1961 was adopted, ensuring protection for performers, producers of
phonograms (sound recording) and broadcasting organization.

4. WIPO Copyright Treaty, 1996

This treaty was adopted by the Diplomatic Conference at Geneva on December 20, 1996. It is
related to the digital technology and the Internet. This treaty specifies that protection extends to
expressions and not to ideas, procedures, and methods of operation or mathematical concepts.
The Treaty recognizes the computer programmes as literary works. It also gives additional
recognition to compilation of data or other material in any form and protection is provided to the
intellectual creativity used in the selection and arrangement of their material. This Treaty
recognizes the exclusive right of rental for computer programmes, cinematographic works, and
works embodied in phonograms as determined by national law.
5. WIPO Performances and Phonograms freaty, 1996

This treaty was also adopted by the Diplomatic Conference at Geneva on December 20, 1996.
The object of their Treaty is the protection Of the rights of performers and producers of
phonograms. Audio-visual performances are not within the scope of the Treaty. The Treaty
establishes a 50 years term of protection granted to performers and producers of phonograms.

6. Bilateral treaties

At the national level, the question soon arose as to whether foreign could claim rights under the
local statute. To deal with the problem, adopted the practice of making bilateral treaties with
other states these were in general based on the principle that each country would grant the same
protection to citizens of the other country as it anted to its own citizens. By the end of the
nineteenth century, there were many bilateral treaties in force.

7. Establishment of WIPO

Prior to this, in 1967 World Intellectual Property Organization (WIPO) was established by a
convention signed at Stockholm on July 14, 1967 entitled "Convention establishing the World
Intellectual Property organization". The WIPO came into existence in its present form in 1970.
The main objectives of WIPO are .

(i) to promote protection of intellectual property throughout the world through co-operation
among states and where appropriate, in collaboration with other international organizations such
as ILO and UNESCO, and

(ii) to ensure administrative co-operation among the intellectual pioperty unions.

The WIPO intends to serve the cause of protection of Intellectual property right by encouraging
new international treaties and suggesting changes in the laws of member countries.

8. TRIP's Agreement

The agreement on Trade Related Aspects of Intellectual Property Rights, 1994, better known as
"TRIP's Agreement" is a part and parcel of WTO set up. This agreement constitutes Annex IC of
the "Marrakesh Agreement" establishing the World Trade Organization which was concluded on
April 15, 1994 and came into effect on January 1, 1995. The TRIP's Agreement binds all
members of the WTO which seek to reduce distortions and impediments to international trade.
The preamble to the Agreement runs like this, "desiring to reduce distortions and impediments to
international trade, and taking account the need to promote effective and adequate protection of
intellectual property rights, and to ensure that measures and procedures to enforce intellectual
property right do not themselves become barriers to legitimate trade". Articles 9 to 14 of the
agreement deal with then copyright and "related rights". The term related right appearing in the
agreements refers to the neighboring rights, which are provided to performer producers of
phonograms and broadcasting organizations.
 UNIT 2

International Treaties related to Copyright

The Berne Convention for the Protection of Literary and Artistic Works, 1886
The Berne Convention is the oldest international Convention in the field of copyright providing
the minimum standards of protection. While enacting the law in respect of the literary and artistic
this convention have to be compiled which lays down fundamental principles that are capable of
universal application in a manner equitable to all interested in the right.

More than that, this convention has been periodically been revised, the last revision being on
September 28, 1979, is a benchmark legislation, prescribing certain minimum standards of
protection relating to the rights of authors and the duration of protection and hence mandated by
the WTO agreement, Agreement On Trade-Related Aspect Of Intellectual Property Rights
(TRIPS) for its signatories.

Main provisions
Some of the main provisions of the Berne Convention which are to be taken into consideration
are the definition of Literary and artistic works, the protected works and the requirements for
protection to them; criteria of eligibility for protection; possible limitation of protection of
certain works of national of certain countries outside the union; right to enforce protected rights;
infringing copies; special provisions regarding the developing countries etc.

National treatment
The most significant right out of the rights provided under this Convention is the national
treatment for the works covered by the convention is automatic and is available in all the
countries of union, other than the country of origin and this is not governed by any procedural
formality. But the extent of the protection, as well as the means of the redress afforded to the
author to protect his rights, shall be governed exclusively by the laws of the country where
protection is claimed. This means that while protection is assured, the procedural means of
securing it is what prescribed by the law of the country where protection is sought.

Inevitably, protection in the country of origin is governed by domestic law. The protection
extended by the Berne Convention is independent of the existence of protection in the country of
origin of the work. Another provision that merits consideration by any government relates to the
right to enforce protected rights, particularly regarding unpublished works where identity of the
author is unknown, but where there is every ground to presume that he is a national of a country
of the Union.
It permits members of the Union, in such a case, to designate a competent authority which shall
represent the author and shall be entitled to protect and enforce his rights in the countries of the
Union. The Copyright Act, 1957 does not contain a provision availing of this right.

Compliance with some major provisions of the Berne Convention-TRIPS requirement

TRIPS Agreement is not a stand-alone agreement. By reference it incorporates appropriate
provisions of previous treaties and Conventions. As far as the Berne Convention is concerned,
TRIPS requires that the members of WTO shall comply with certain specific provisions of the
Berne Conventions and the Appendix thereto, expecting the provision dealing with the moral
rights of the author or of the rights deprived there from.

The appendix offers scope for developing countries, by reason of their status as developing
countries, to vary the forms and duration of the rights, subject to the conditions stated therein.
The provision of the Berne Convention which TRIPS requires to be compiled are relating to
what are protected works, the rights, the classes of literary and artistic work, cinematograph and
dramatic works, eligibility for protection, term of protection, fair use and related and matters.

The WTO Panel on the Interpretation of TRIPS had invited the attention of the members of
WTO that through such incorporation, the substantive rules of the Berne Convention had become
part of the TRIPS Agreement and that they would have to be read as applying to WTO Members.

Universal Copyright Convention, 1952

Universal Copyright Convention originally adopted in the year 1952 and later on protocols to the
Convention are done at Paris July 24, 1971. This Convention is intended to facilitate a wider
dissemination of works of the human mind and increase international understanding.

The preamble of this Convention states that the Convention it was concluded on the contracting
states being convinced that a system of copyright protection appropriate to all nations of the
world and expressed in a universal convention, additional to, and without impairing international
systems already in force, will ensure respect for the rights of the individual and encourage the
development of literature, sciences and arts.

This convention provides for the effective protection in each of the contracting states of the
rights of authors and other copyright proprietors in literary, scientific and artistic works,
including writings, musical, dramatic, cinematographic works, paintings engravings and
sculpture; national treatment of nationals of other contracting states in respect of their work
published in their own states and unpublished work; term of protection.

Protection shall extend to works protected under the convention either in their original form or in
any form recognizably derived from the original. Any dispute between two or more contrasting
states concerning the interpretation or application of this convention, not settled by negotiation,
shall unless the States concerned agree on some other method of settlement, be brought before
the International Court of Justice of determination by it.

The WIPO Internet Treaties:

The WIPO Performances and Phonograms Treaty (WPPT), 1996 and The WIPO
Copyright Treaty (WCT), 1996.

The WIPO Performances and Phonograms Treaty (WPPT), 1996 and the WIPO Copyright
Treaty (WCT), 1996 also known as the Internet Treaties, make it an offence to circumvent
technological measures employed by authors to protect their works.

The WIPO Copyright Treaty (WCT), 1996 is a special agreement that contracting parties of the
Berne Convention may enter into without prejudice to the Berne Convention. WCT, in addition
to stipulating that contracting parties apply mutatis mutandis the provisions of the Berne
Convention, in respect of the protection provided by WCT, requires that the following shall be
protected by copyright in the countries of the contracting parties:

i. Computer programs, whatever may be the mode or form of their expression, and
ii. Compilations of data or other material (database), in any form, which by reason of the
selection or arrangement of their contents constitute intellectual creations.

Article 11 and 12 of the WCT are important advances made towards more effective copyright
protection. They impose the obligation on the contracting parties to provide legal remedies
against the circumvention of technological measure used by authors in connection with the
exercise of their rights and against the removal or altering of information, such as certain data
that identify the work or their authors, necessary for the management of their rights.

Article 18 and 19 of WPPT deal with obligations concerning technological measures and rights
management information in relation to the rights of performers and producers of phonograms.

These two treaties strengthen the basis towards:

i. The prohibition of infringements and attempts at infringement by circumventing

technological measures controlling access to a copyrighted work and
ii. The preservation of the integrity of copyright management information.
Copyright management information covers the title of work, the name of the author, the name
and identifying information about the copyright owner, information set out in the notice of
copyright , terms and conditions for use of the work etc. Infringers, to conceal infringement give
copyright management information that is false.

The government of India recently has published a press note stating the cabinet approval on the
accession to the WIPO Copyright Treaty, 1996 and WIPO Performance and Phonograms Treaty,
1996. India has amended the Copyright Act, 1957 to adopt these treaties through introduction of
two sections viz, section 65A and 65B by the 2012 Amendment Act.

TRIPS Agreement :

Introduction to TRIPS Agreement

The Agreement on frade Related Aspects of Intellectual PropertyRights is a part and parcel of
the WTO set up. This agreement constitute Annexure-IC of the "Marrakes Agreement"
establishing of World Trade Organisation, which was concluded and came into force on January
1, 1995. This agreement which binds all the members of WTO seek to reduce distortions and
impediments to international trade with a view to promote• effective and adequate protection of
intellectual property rights and also ensure that measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade. The Agreement in order to
achieve the aforesaid aims, emphasizes the need for new rules and disciplines concerning.

(a) The applicability of the basic principles of GATT, 1994 and of relevant international
intellectual property agreements and conventions;

(b) The provisions of adequate standards and principles concerning the availability, scope
and use of trade related intellectual property rights;

(c) the provisions of effective and appropriate means for the enforcement of TRIPS taking
into account differences in national legal system.

(d) The provisions of effective and expeditious procedures for the multilateral prevention and
settlement of disputes between governments; and

(e) Transitional arrangements aiming at the fullest participations in the result of negotiations.

The agreement on TRIPS envisages the underlying public policy objectives of national system
for the protection of intellectual property including the development and technological
objectives.

TRIPS is an integrate pact of the WTO and lays down the norms and standards in respect of the
different kinds of intellectual property rights.

The IPRs covered under TRIPS are .

(a) Copyright and related rights;

(b) Trademarks;

(c) Geographical indications;

(d) Industrial designs;

(e) Patents;

(f) Layout designs;

(g) Protection of undisclosed information.

Important feature of the TRIPS agreement relates to the procedures of licensing in respect of the
use of patents by persons or company other than its inventor. Acquiring licence is compulsory to
use a patent and it is to be acquired from the right holder who is its original creator. But under

certain circumstances, the agreement allows the government to use a patent without the
authorisation of its owner and or to provide for 'compulsory licensing. In the event of the failure
to acquire the license due to the refusal of the original right holder, the government, as the
agreement provides, is free to use patent without any license from right holder. However, under
TRIPS agreement, supplying the domestic market is one of the preconditions to seek a license to
use a patent.

Objectives of TRIPS Agreement

The principal objective of the TRIPS agreement is to strengthen and harmonise intellectual
property rights standards among all signatory countries. Also, since it is a Paris Convention for
the protection of industrial property plus treaty, and since these two treaties administered by the
World Intellectual Property Organisation (WIPO) have 164 and 151 countries respectively as
members, it should help them in this process. Incidentally, during most of the initial years since
1986, WIPO helped developing countries in comprehending the legal standards and norms for
protection of IPR. This was done through a series of meetings held in Geneva, with their
representatives, following the commencement of the Uruguay round.

Before the entry into force of the TRIPS Agreement in January 1995, countries had more
flexibility in excluding certain sections of the economy from patent protection in their national
laws. Since a number of developing countries and least developing countries had weaker IPR
laws prior to TRIPS agreement, the agreement places substantially greater burdens on these
countries for reforming their IPR regimes. These burdens include the cost of developing
intellectual infrastructure to protect IPR.

To case the transition, however, the TRIPS agreement established different compliance deadlines
which were fixed till January 1996 for developed countries and January 2000 for developing
countries. For the least developing countries time was given till January 2006, which later at the
Fourth session of the WTO Ministerial Conference held in November 2001 at Doha (Qatar), was
further extended with respect to their obligation concerning patents protection until January,
2016.

The TRIPS agreement, as it finally emerged, was expected to -encourage the flow of the
technology. However, while deciding on its implementation, the developing countries will have
to undertake adequate safeguards to protect their interest. The safeguard provisions under the
agreement allow for compulsory licensing and parallel importing. The TRIPS, agreement has
important provisions for fair play technology transfer, from which the developing countries
could and should benefit. Yet the actual benefit that has been derived by the developing countries
so far has been minimal as has been mentioned in the report of the U.K. Commission on
Intellectual Property Rights.

Article 7 of the TRIPS agreement states that "the protection and enforcement of intellectual
property should contribute to the promotion of technological innovation and to transfer and
dissemination of technology, to the mutual advantage of .producers and users of technological
knowledge and in a manner conducive to social and economic welfare, and to a balance of rights
and obligations. "Furthermore, Article 8.2 states that "appropriate measures, provided that they
are consistent with the provisions of this agreement, may be needed to prevent the abuse of
intellectual property rights by right holders or the resort to practices with unreasonably restrain
trade or adversely affect the international property of technology."

Importance of TRIPS Agreement

It was felt by many experts in developing countries, that the TRIPS agreement could open new
horizons for industry including the pharmaceutical industry and ensure success through
competition. Too much was involved in the deal for most countries economics to allow
objections for strengthening of intellectual property rights to be given in to, especially as these
were largely by certain limited interested groups. It was also clear during the negotiations period,
that in the post GATT era, the national industry property and copyright legislations, in a large
number of countries, would have to be revised. For instance, even during the later part of the
negotiations and even at the time of conclusion of the TRIPS agreement, patent protection for
certain subject matter was excluded in larger number of countries, both developed and
developing countries.

Pursuant to the obligations under the TRIPS, all members of the World Trade Organisation
(WTO) are required to provide intellectual property rights protection as per an agreed set of
minimum standards. Member states are expected to be committed to modernize and enforce
copyright and industrial property legislation. With implementation still under way and industries
still adjusting not much empirical evidence is available on the effects of the legislative changes.
The technologically advanced world has always agreed that the lack of effective intellectual
property protection is a discricentive for export of latest technologies, while such protection,
effectively enforced is an encouragement for foreign direct investment in wide ranging sectors of
industry, including the media and information technology.

In the recent study it was suggested that cutting barriers in agriculture manufacturing and
services by one-third, would boost the world economy by US $ 613 billion. In view of this
possibility, the global multilateral processes and through them, open trade, could also help -the
world's poorer countries and peöplej through expanded access to markets.

At the WTO's fourth Ministerial Conference at Doha (November 2001), the ministerial
declaration, while reaffirming its commitment to sustainable development stressed that
international trade played a major role in thepromotion of economic development and the allev at
on o poverty, and that the multilateral trading system embodied in the GATT and its SUCcessor
organization, the WTO, has contributed significantly to economic growth development and
employment through out the last nearly fifty years. Needs was however, felt for serious
consideration of mechanisms, to Compensate developing and least developed countries of the
south for losses, in Certain respects, from strengthening of IPRs.

A separate "Declaration on the TRIPS Agreement and Public Health " stressed the importance
of implementation of the TRIPS Agreement in a manner supportive of public health by
promoting access to existing medicines as well as research and development into new medicines.
Also, *sues with respect to implementation of Article 23.4 of the TRIPS agreement concerning
additional protection for geographical indications, and issues relating to the extension of such
protection of geographical indications to products other than those mentioned in the said article,
would be addressed in the council for TRIPS. It was also agreed that the TRIPS council should
examine the relationship between the TRIPS agreement and the convention on Biological
diversity the protection of traditional knowledge and foreclose, and the council shall take fully
into account the development dimension.

The long term effectiveness of the TRIPS agreement depends on striking balance between
requiring strict adherence to the agreement, and allowing so that countries see it in their interests
to comply.

The role of the World Trade Organisation would be both to maintain the momentum launched at
Doha Ministerial Conference, and to build on its deliberation and on the Doha Development
Agenda especially in respect of development issues, and integration of the interests of smaller,
volnerable economics into a multilateral trading system. Also it would involve taking of positive
steps to assist developing countries, including the least developed among them, in securing a
share in the growth of world trade commensurate with the needs of their economic development.
In this context, the ministerial declaration has spelt out that enhanced market access, balanced
 rules, and well targeted, sustainably financed, technical assistance and capacity building
programs have important role to play.

At the meeting of the WTO General Council at the end of August 2003, members in a long
awaited and important decision adopted measures aimed at fully operationalising the landmark
Doha Declaration on TRIPS and public health by ensuring that the many lower income group
developing countries facing serious humanitarian consequences due to public health crises and
which have little or no domestic drug manufacturing capacities, can avail themselves of the
compulsory licensing procedures allowed under the TRIPS agreement in order to meet their
public health requirements.

At the WTO's fifth conference at Cancum, Mexico, in September 2003, which was required to
take stock of progress, provide necessary political guidance and take decision as necessary, the
developing country sought, inter alia, the full implementation of all the development related
commitments undertaken by the members at Ministerial Conference atDoha, including making
the provisions for special and differential treatment in all the existing WTO agreements more
precise, effective and operational. Developing countries also sought firm commitments from
developed country partners to substantially reduce trade, distorting agricultural produce and
value added industrial goods, and improved access for their service providers, while seeking at
the same time to prevent the expansion of an already overloaded agenda into negotiating areas.
Members were unable at the conference, however, to arrive at a consensus in respect of the key
issues if agricultural trade reform and the question of whether or not to launch new rule-making
negotiations in the areas of investment, competition policy, transparency in government
procurement and trade facilitation.

Ministers present instructed their officials to continue working on outstanding issues in Geneva
with a renewed sense of urgency and purpose and taking fully into account all the views
impressed at the conference in Cancum. They also requested the chairman of the General
Council, working in close Co-operation with the Director-General, to co-ordinate the work and
to convene a meeting of the General Council at Senior Officer level no later than 15 December,
2003 to take the action necessary at that stage to enable members to move towards a successful
and timely conclusion to Doha Development Agenda negotiations.

TRIPS COUNCIL

 It monitors implementation of the Agreement on Trade-Related Aspects of Intellectual Property

Rights (the TRIPS Agreement).
 It is open to all WTO members and observers.
 It provides a forum in which WTO Members can consult on intellectual property matters, and
carries out the specific responsibilities assigned to the Council in the TRIPS Agreement.
 The TRIPS Agreement:
 sets the minimum standards of protection for copyrights and related rights, trademarks,
geographical indications (GIs), industrial designs, patents, integrated circuit layout designs, and
undisclosed information.
 establishes minimum standards for the enforcement of intellectual property rights (IPRs) through
civil actions for infringement, actions at the border,
 and at least in regard to copyright piracy and trademark counterfeiting, in criminal actions.

WIPO

 In order to promote intellectual property (IP) protection and foster creative activity globally, the
UN established the World Intellectual Property Organization (WIPO) in 1967.
 In essence, WIPO serves as a global forum for IP policy, services, knowledge sharing, and
cooperation.
 A global organization for the promotion and protection of intellectual property rights is called
WIPO (IPR).
 It serves as an international forum for IP Services.
 The United Nations has a self-funded organization out of 15 called WIPO.
 WIPO's slogan is to "encourage creative activity and promote the protection of intellectual
property around the world."
 The organization has 192 members.
 Director-General Francis Gurry currently serves as its leader.
 The WIPO's main office is in Geneva, Switzerland.
 The United International Bureaux for the Protection of Intellectual Property (BIRPI), which was
founded in 1893, is where WIPO got its start.
 It was formed on 14th July 1967 and began operations on 26 April 1970 when the convention
entered into force.
 Mandate of WIPO
 ‘WIPO is dedicated to developing a balanced and accessible international Intellectual Property
(IP) system, which rewards creativity, stimulates innovation and contributes to economic
development while safeguarding the public interest.’
 Purpose of WIPO
 The World Intellectual Property Organization (WIPO) was founded with the following
objectives in mind-
o To aid in the creation of initiatives that strengthen IP Protection globally and maintain the
coherence of national laws.
o Signing international contracts for the protection of intellectual property rights (IPR).
o To put into practice the administrative duties that the Berne and Paris Unions have outlined.
o Providing legal and technical support in the area of IP.
o To gather and disseminate information, as well as to conduct study and publish the results.
o To guarantee the performance of services that aid in the international protection of intellectual
property.
o To put other suitable and required actions into effect.
 Functions of WIPO
 A policy conference to develop fair worldwide IP laws in light of globalization.
 International services to protect IP and settle conflicts.
 Technical framework for collaborating and connecting IP systems.
 Programmes for cooperation and capacity-building to enable all nations to exploit IP for the
growth of their economies, societies, and cultures.
 A trusted source of IP data worldwide.
 Timeline of WIPO
 1883- Paris Convention for the Protection of Industrial property
o First step taken to protect intellectual work in other countries. It covers:
o Inventions(patents),
o Trademarks,
o Industrial Designs.
 1886- Berne Convention
o For the Protection of Literary and Artistic Works such as-
o Novels, short stories, poems, plays
o Songs, opera, musicals
o Drawings, paintings, sculptures, architectural works.
 1891- Madrid Agreement
o The first international IP filing service is launched.
 1893- BIRPI established
o Two secretariats set up to administer the Paris and Berne Conventions combine to form the
United International Bureaux for the Protection of Intellectual Property (BIRPI).
 1970- BIRPI becomes WIPO
o WIPO becomes a member state-led intergovernmental organization.
 1974- WIPO joins the United Nations
o WIPO become one of the agencies of UN.
 1978- Patent Cooperation Treaty (PCT) system launched
o By filing one international patent application under the PCT, applicants can simultaneously seek
protection for an invention in a very large number of countries.
 1994 -Arbitration and Mediation Centre (AMC) established
 The Centre offers alternative dispute resolution services to help solve international commercial
disputes between private parties.

WIPO Copyright Treaty, 1996

 The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that
deals with the protection of works and the rights of their authors in the digital environment. Any
Contracting Party (even if it is not bound by the Berne Convention) must comply with the
substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of
Literary and Artistic Works (1886). Furthermore, the WCT mentions two subject matters to be
protected by copyright: (i) computer programs, whatever the mode or form of their expression;
and (ii) compilations of data or other material ("databases"), in any form, which, by reason of the
selection or arrangement of their contents, constitute intellectual creations. (Where a database
does not constitute such a creation, it is outside the scope of this Treaty.)
As to the rights granted to authors, apart from the rights recognized by the Berne Convention,
the Treaty also grants: (i) the right of distribution; (ii) the right of rental; and (iii) a broader right
of communication to the public.
 The right of distribution is the right to authorize the making available to the public of the
original and copies of a work through sale or other transfer of ownership.
 The right of rental is the right to authorize commercial rental to the public of the original and
copies of three kinds of works: (i) computer programs (except where the computer program
itself is not the essential object of the rental); (ii) cinematographic works (but only in cases
where commercial rental has led to widespread copying of such works, materially impairing
the exclusive right of reproduction); and (iii) works embodied in phonograms as determined in
the national law of Contracting Parties (except for countries which, since April 15, 1994, have
had a system in force for equitable remuneration of such rental).
 The right of communication to the public is the right to authorize any communication to the
public, by wire or wireless means, including "the making available to the public of works in a
way that the members of the public may access the work from a place and at a time
individually chosen by them". The quoted expression covers, in particular, on-demand,
interactive communication through the Internet.
As to limitations and exceptions, Article 10 of the WCT incorporates the so-called "threestep"
test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne
Convention, extending its application to all rights. The Agreed Statement accompanying the
WCT provides that such limitations and exceptions, as established in national law in compliance
with the Berne Convention, may be extended to the digital environment. Contracting States may
devise new exceptions and limitations appropriate to the digital environment. The extension of
existing or the creation of new limitations and exceptions is allowed if the conditions of the
"three-step" test are met.
As to duration, the term of protection must be at least 50 years for any kind of work.
The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any
formality.

The Treaty obliges Contracting Parties to provide legal remedies against the circumvention of
technological measures (e.g., encryption) used by authors in connection with the exercise of their
rights, and against the removal or altering of information, such as certain data that identify works
or their authors, necessary for the management (e.g., licensing, collecting and distribution of
royalties) of their rights ("rights management information").

The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the
measures necessary to ensure the application of the Treaty. In particular, each Contracting Party
must ensure that enforcement procedures are available under its law so as to permit effective
action against any act of infringement of rights covered by the Treaty. Such action must include
expeditious remedies to prevent infringement as well as remedies that constitute a deterrent to
further infringement.

The Treaty establishes an Assembly of the Contracting Parties whose main task is to address
matters concerning the maintenance and development of the Treaty. It entrusts to the Secretariat
of WIPO the administrative tasks concerning the Treaty.

The Treaty was concluded in 1996 and entered into force in 2002.

The Treaty is open to States members of WIPO and to the European Community. The Assembly
constituted by the Treaty may decide to admit other intergovernmental organizations to become
party to the Treaty. Instruments of ratification or accession must be deposited with the Director
General of WIPO.

WIPO Performances and Phonogram’s Treaty, 1996

Known as the Internet Treaties, WPPT and WCT were enacted to respond to new marketplace
and technology developments where an increasing amount of copyrighted work is distributed in
digital form. WPPT was created to update WIPO copyright treaties and regulations, primarily
with the rapidly evolving development of new markets, distribution, methods of use and types of
works.

The WPPT was adopted by a consensus of 100 member states of the European Union (EU) in
Geneva, Switzerland on December 20, 1996. At that time, the Berne and Rome Conventions had
not been modified for 25 years.
 UNIT 3

Meaning of Copyright

The word "copyright" is derived from the expression 'copies of words' first used in the
content, according to Oxford Dictionary, in 1856. The word ,copy' is presumed to date back
to circa 1485 AD and was used to connote a manuscript or other matter prepared for printing.

The meaning of "copyright" as given in dictionary, Statute and judicial decisions have been
discussed.

a. Dictionary meaning of Copyright

According to Black's Law Dictionary, the word 'copy' means "Transcript, imitation,
reproduction of an original writing, painting, instruments or the like' .

According to Britannica Ready Reference Encyclopedia the word "copyright" means an

exclusive right to reproduce, publish, or sell an original work of authorship. It protects from
unauthorized copying any published or unpublished work that is fixed in a tangible medium
(including a book or manuscript musical score or recording, script or dramatic production,
painting or sculpture, or blueprint or building). It does into protect matters such as an idea,
process, or system.

According to Black's Law Dictionary, "copyright" is the right in literary property as

recognized and sanctioned by positive law. Intangible incorporeal right granted to the author
or originator of certain literary or artistic production whereby he is invested for a specified
period with the sole and exclusive privilege of multiplying copies of the same and publishing
and selling them.

According to the Encyclopedia Americana copyright is the exclusive right that protects an
author, composer, or artist having his work recorded, performed, displayed, translated,
distributed or reproduced by way of copies, phone records, or other versions except with his
permission, subject to specified limitations. In New Standard Encyclopedia, copyright has
been defined as the legal protection given to authors, artists and composers to prevent
reproduction, sale or adaptation of their work without their consent.
According to Oxford English Dictionary "copyright" is an exclusive right given by law for a
certain term of years to an author, composer etc. to print, publish and sell copies of his
original work.

Meaning of Copyright in Statute

According to Indian Copyright Act, 1957 "Copyright" means the exclusive right subject to
the provisions of this Act to do or authorize the doing of the any of the following acts in
respect of a work or any substantial part thereof, namely:

(a) In the case of a literary, dramatic or musical work, not being a computer programme-

(i) to reproduce the work in any material form including the storing of it in any
medium by electronic means;
(ii) to issue copies of the work to the public and not being copies already in
circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematographic film and sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work; quamurut
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts
specified in relation to the work in Sub-clause (i) to (vi);

(b) In the case of a computer programme-

(i) to do any of the acts specified in Clause (a);

(ii) to sell or give on commercial rental or offer for sale or for Commercial rental any copy of
the Computer Programme

Provided that such commercial rental does not apply in respect of the computer programmes
where the programme itself is not the essential object of the rental.
(c) In the case of an artistic work-

(i) to reproduce the work in any material form including depiction in the three dimensions of
a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the
work in sub-clauses (i) to

(d) In the case of a cinematograph film-

(i) to make a copy of the film, including a photograph of any image forming part thereof;

(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether
such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

(e) In the case of a sound recording-

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless
of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public;

SUBJECT MATTER OF COPYRIGHT PROTECTION

The subject-matter of copyright protection includes every production in the literary, scientific
and artistic domain, whatever the mode or form of expression.

For a work to enjoy copyright protection, however, it must be an original creation. The ideas
in the work do not need to be new but the form, be it literary or artistic, in which they are
expressed, must be an original creation of the author. And, finally, protection is independent
of the quality or the value attaching to the work-it will be protected whether it be considered,
according to taste, a good or a bad literary or musical work and even of the purpose for
which it is intended, because the use to which a work may be put has nothing to do with its
protection.

Works eligible for copyright protection are, as a rule, all original intellectual creations. A
non-exhaustive, illustrative enumeration of these is contained in national copyright laws. To
be protected by copyright law, an author's works must be original. This means that the works
must originate from him; they must have their origin in the labour of the author. But it is not
necessary, to qualify for copyright protection, that works should pass a test of
imaginativeness, of inventiveness. The work is protected irrespective of the quality thereof
and also when it has little common with literature, art or science, such as purely technical
guides or engineering drawings, or even maps. This demonstrates that it is not mere ideas, as
such, which are protected by copyright but it is the form of expression which is protected.
Exceptions to the general rule are made in copyright laws by specific enumeration: thus laws
and official decisions or mere news of the day are generally excluded from copyright
protection.

Practically all national copyright laws provide for the protection of the following types of
works :

Literary Works.-novels, short stories, poems, dramatic works and any other writings,
irrespective of their content (fiction or non-fiction), length, purpose purpose (amusement,
education, information, advertisement, propaganda, etc.) form (handwritten, typed, printed;
books pamphlet, single sheets, newspaper, magazine) whether published or unpublished; in
most countries "Oral Work". i.e., works not reduced in writing, are also protected by the
Copyright Law;

Musical Works- Whether serious or light; Songs, choruses, operas, musicals, Operettas; if
for instructions, whether for one instrument (solos), a few instruments (Sonatas, chamber
music etc.), or many (bands,orchestras);

Artistic Works- Whether two-dimensional (drawings, paintings, etchings, lithographs etc.)

or three-dimensional (Sculptures, architectural works), irrespective of content
(representational or abstract) and destination ("pure" art, for advertisement, etc.);

o Maps and technical drawings;

o Photographic works: Irrespective of the subject matter (portraits, landscapes, current
events, etc.) and the purpose for which made
o Motion Pictures ("cinematographic works") whether silent or with a sound track, and
irrespective of their purpose (theatrical exhibition, television broadcasting etc.), their
genre (film dramas, documentaries, newsreels etc.), length, method employed
(filming "live", cartoons, etc.), or technical process used (pictures on transparent film,
on electronic video tapes, etc.).
Many Copyright Laws protect also "works of applied art" (artistic jewelry, lamps, wallpaper,
furniture, etc.) and choreographic works.

Rights Comprised in Copyright

The owner of copyright in a protected work may use the work as he wishes-but not without
regard to the legally recognized rights and interests of others--and may exclude others from
using it without his authorization.

Therefore, the rights bestowed by law on the owner of copyright in protected work are
frequently described as "exclusive rights" to authorize others to use the protected work.

The original authors of works protected by copyright also have "moral rights" in addition to
their exclusive rights of an economic character..

Such acts, requiring the authorization of the copyright owner, normally are the following:
copying or reproducing the work: performing the work in public; making a sound recording
of the work; making a motion picture of the work: broadcasting the work translating the
work: adapting the work.

Reproduction Rights

The right of the owner of copyright to exclude others from making copies of his protected
work is the right in this branch of intellectual property. The act of making copies of a
protected work is the act performed by a publisher who wishes to distribute the work to the
public. Therefore the right to control this act is the legal basis for agreements between
owners of copyright and publishers for the publishing of protected works

Publishing contracts frequently deal not only with the right to authorize the making of copies
of the work but also with the right to authorize other acts (for example, Broadcasting,
Transmission and so on But the essence of a publishing contract is the authorization to make
copies

Performing Rights

The second act requiring authorization is the act of public performance. A work protected by
copyright may be communicated to a large number of people without being copied or
reproduced. A lecture can be read aloud to an audience without copies being made. A drama
or a musical work enn be performed before an audience without copies being made. The right
to control this act of public performance is of interest not only to the owners of copyright in
works originally designed for public performance. It is of interest also to the owners of
copyright, and to persons authorized by them, when others may wish to arrange the public
performance of works originally intended to be used by being reproduced. For example, a
story written originally in a particular way in order to be read at home or in a library may be
transformed ("adapted") into a drama designed to be performed in on the stage of a theatre.

Recording Rights

The third act to be examined is the act of making a sound recording of a work protected by
copyright. Obviously, words can be by sound recordings as easily as they can be
communicated by writing, Copies of sound recordings can be made as easily as copies of
writings. So far as music is concerned, sound recording is the most favoured means of a work
to a wide public. Gramophone records (called "Phonograms" in the technical language of
copyright law) serve much the same purpose for musical works as books serve for literary
works.

Second recordings can incorporate music alone, words alone or both music and words. The
right to authorize the making of a sound recording belongs to the owner of the copyright in
the music and also to the owner of the copyright in the words. If the two owners are different,
then, in the case of a sound recording incorporating both music and words, the maker of the
sound recording must obtain the authorization of both owners.

Under the laws of some countries, the maker of a sound recording must also obtain the
authorization of the performers who play the music and who sing or recite the words. This is
another example of the fact that the owner of copyright in a work cannot use it or authorize
the use of it in a way which is contrary to the legal rights of others. If the making of a sound
of a performance requires, in order to be lawful, the authorization of the performers, then it is
clear that the owner or owners of copyright in a work being performed cannot alone give the
necessary authorization for the making of a sound recording of the performance.

Motion Picture Rights-

A Motion Picture" is a visual recording, presenting to viewers a contintious sequence of

images. In the technical Innguage of copyright law it is often called a "cinematographic
work". In some countries the word "film" is used instead of the expression 'motion picture".
The expression "motion picture" is perhaps preferable, because sequences of images are
today, frequently recorded by technological methods (such as magnetic tape) which do not
require the use of photographic film.

A drama originally written for performance by performers to in immediately present

audience ("live performance") can be visually recorded and shown to far larger in numbers
than those who can be at the live performance; such audiences can see the motion picture far
away from the place of live performance and at times much later than the live performance.

Broadcasting Rights

The next major category of acts restricted by copyright includes the acts of broadcasting
works and of communicating works to the by means of wires or cables.

When a work is broadcast, a wireless signal is emitted into the air which can be received by
any person, without range of the signal, who possesses the equipment (radio or television
receiver) necessary to convert the signal into sounds or sounds and images.

When a work is communicated to the public by cable, a signal is diffused which can be
received only by persons who possess such equipment linked to the cables used to diffuse the
signal.

In principal, according to the Berne Convention for the Protection of Literary and Artistic
Works, owners of copyright have the exclusive right of authorizing both the wireless
broadcasting and the diffusion by cable of their works.

The broadcasting and diffusion by cable works protected by copyright have in recent years,
been the subject of much discussion. New problems have arisen which may require a review
by governments of their national copyright legislation.

The new copyright problems in the matter of broadcasting and diffusion by cable have been
arisen mainly as a result of technological advances. These advances include the use of
artificial satellites in space to extend the range of wireless signals, the increasing possibilities
of linking radio and television receivers to signals diffused by cable, and the increasing use
of equipment able to record and visual images which are broadcast or diffused by cable.
Translation and adaptation rights

The acts of translating or of adapting a work protected by copyright require the authorization
of the copyright owner. "Translation" means the expression of a work in a language other
than that of the original version.

"Adaptation" is generally understood as the modification of a work form one type of work to
another, for example adapting a novel so as to make a motion picture or the modification of a
work so as to make it suitable for different conditions of exploitation, for example adapting
an instructional textbook originally prepared for higher education into an instructional
textbook intended for students at a lower level.

Translation and adaptations are themselves works protected by copyright. Therefore, in

order, for example, to reproduce and publish a translation or adaptation, the publisher must
have the authorization both of the owner of the copyright in the original work and of the
owner of copyright in the translation or adaptation.

Nature of Copyright

The copyright in a work is a creation of Statute. A person owns a copyright because the law
recognizes the existence of such a right.

Copinger and Skone James on Copyright have expressed the nature of the copyright in the
following words "Copyright Law is concerned, in essence, with the negative right of
preventing the copying of the physical material. It is not concerned with the reproduction of
ideas but with the reproduction of the forms in which ideas are expressed. Originally
copyright law was concerned with the fields of literature and the arts, but, in seeking, in
particular, to keep up with advanced in technology, the protection given by copyright law has
been considerably expanded over the years. Thus, today, protection is not only given to
literary, dramatic, musical and artistic works, but also to sound recording films, broadcasts,
cable programmes and the typographical arrangements of published editions. Copyright is a
property right, but one result of this expansion in protection is that, whereas this branch of
the law used to be described by all of us as "Intellectual Property", it is now described, by
some as "industrial property".

The Copyright is incorporeal property distinguishable from physical ownership of the work
in which the copyright subsists. Thus, the copyright may subsist in one person and the work,
say a book, may be purchased by any person from the market. The Copyright Law, in
essence, is concerned with the negative right of preventing the copying of physical material
existing in the field of literature and Its object is to protect the writer and artist from the
unlawful reproduction of his material. Copyright is essentially a property; there is no
disqualification in law on any person being the owner of copyright. A child of five or an
insane person can therefore certainly be the owner of copyright in a work. Where for
instance, a minor or an insane person has produced an original literary or dramatic, musical
or artistic work, this minor or insane person will be the first owner of the copyright therein.

Copyright is not a monopoly, unlike patent and registered designs. Thus if it can be shown
that two precisely similar works were in fact wholly independent of one another, there can be
no infringement of copyright by one or other.

Justification of Copyright

Once the copyright is accepted as a form of intellectual property, same argument applies for
the justification of copyright as that of intellectual property. There are four theories advanced
by William Fisher providing basis for the intellectual property rights. They are 2

a. The Utilitarian Theory

This approach states that these rights induce people to behave in ways that increase socially
valuable goods and services and distributes these goods and services in the fashion that
maximizes the net pleasures people reap from them. The distinctive characteristics of most
intellectual products are they are easily replicated and that enjoyment of them by person does
not prevent enjoyment of them by other persons on just grounds.

b. Labour Desert Theory

The second approach springs from the proposition that a person who labours upon resources
that are held in common has a natural property rights to the fruits of his or her efforts and that
the state has a duty to respect and enforce that right.

c. Personality Theory

The third approach is personality theory. The premise of the third approach derived loosely
from the writings of Kant and Hegel is that private property rights are crucial to the
satisfaction of some fundamental human needs or interests and the policy makers should
strive to select the set of entitlement that are necessary for human development.

d. Social Planning Theory

The fourth approach is rooted in the proposition that property rights in general and
intellectual property rights in particular can and should be shaped so as to help foster the
achievement of a just and attractive culture.
Introduction to Ownership of Copyright

The claim of copyright by a person is based on his creativity in some other tangible form.
The Act does not confer copyright on mere idea. The person who first gives the concrete
shape to the idea is entitled to copyright. Since copyright in the ideas even if they are
original, the originator of a brilliant idea is not the owner of the copyright, unless he is also
the creator there is no of the work. Thus, if a person has a brilliant idea for a story, play or
picture and if he communicates that idea to an author or playwriter, who in turn gives the
tangible shape to that idea in the form of a book or picture, 'author' will be entitled to claim
copyright and not the person who supplied the idea.The factors involved in determination of
ownership claims and right of owner are as follows.

Determination of ownership

The claim of first ownership is based on the authorship. Under Section 17, the first
ownership of copyright is given to the author of the work. The provision deals in detail the
various aspects of ownership of copyright in respect of literary, dramatic, work, photographs,
addresses or speech, government work and work made or first published by or under
direction or control of any public undertaking. Before we analyze Section 17, it is necessary
to know as to who is recognized as 'author'.

Who is Author

The expression 'author' has been defined under Section 2 (d) of the Act.

Following category of persons will be deemed as 'author' in relation to various categories of

work:

(a) Literary or dramatic work, the author of the work.

(b) Musical work, the composer in relation to a musical work means the person who
composes the music regardless of whether he records it in any form of graphical notation-

According to Section 2(p) a 'musical work' means a work consisting of music and includes
any graphical notation of such work but doest not include any words or any action intended
to be sung, spoken or performed with the music.

(c) An artistic work other a photograph, the artist.

(d) Photograph, the person who takes the photograph.

(e) Cinematograph film, the producer.

(f) Sound recording, the producer.

(g) Literary, dramatic, musical or artistic work which is computer generated, the person who
causes the work to be created.

The author of a newspaper report is the person who writes it and not the person supplying
the news. A journalist who writes a news story on the life story of another on the basis of
such a narration made to him is the author of the story so published.

Various Rights of Owner of Copyright

Owner of copyright enjoys bundle of rights with regard to his work. They can be enumerated
as under :

1. Multiple Statutory Rights.

2. Right to transfer.

3. Negative Right.

4. Moral Right (Special Right of Authors).

1. Multiple Statutory Right

The copyright is a creation of statute. It is granted and protected according to the Copyright
Act. It is not a common law right. But the copyright is not a single right. The owner of the
work can exploit and enjoy monopoly right in his work in several manners. Section 14 of the
Act confers exclusive rights to do or authorize doing of any of the following acts in respect
of a work or any substantial part thereof,' namely:

2. Right to transfer

The author can transfer his rights through assignment or grant permissive use of his copyright
to any person. In Chapter 8, detailed study has been done on this aspect.

3. Negative Right (Right against Infringement)

Unauthorised use of copyright amounts to infringement. This right forms the core of
ownership claim.
4. Moral Right (Special Right of Author)

Berne Convention² has recognized the moral right of author which are included as (i)
Paternity right, i.e., to claim authority of the work even after the assignment of work, and
integrity right, i.e., the right to protect author's honour and reputation. These rights remain
with the author even after the transfer of copyright and they continue through the term of the
copyright. These rights are in addition to economic rights.

Section 57(1) of the Copyright Act (as amended in 1994) has recognized moral rights as
author's special rights. These rights are

(a) to claim authorship of the work; and

(b) to restrain or claim damages or claim damages in respect of any distortion, mutilation,
modification or other act in relation to the said work, if such distortion, mutilation or
modification or other act would be prejudicial to his honour or reputation.

5. Limitation on copyright

The statutory rights conferred on a copyright owner is not absolute and unconditional. There
are certain statutory limitations placed on the abovementioned right. They are related to grant
of compulsory licence in case the work is withheld from public' and use of copyright work by
other persons in specified circumstances without infringement.
 UNIT 4

Assignment of Copyrights (Section 18)

 The owner of a work's copyright has the ability to assign his copyright to anyone else. As
a result of the assignment, the assignee acquires all rights relating to the copyright of the
assigned work. The mere grant of the right to publish and sell the copyrighted work, on
the other hand, is a grant of publishing rights rather than a copyright assignment.
 When an assignee of copyright becomes entitled to any of the copyright's rights, he is
treated as the copyright's owner in respect of those rights. In the case of unassigned
rights, the assignor is also considered the copyright owner. If the assignee dies before the
task is completed, the legal representatives of the assignee are entitled to the assignment
benefits.
 In Video Master v. Nishi Production, the Bombay High Court reviewed whether a video
rights assignment would include the right to broadcast through satellite as well. The
Court agreed with the defendant's assertions that there were various channels of public
communication, including terrestrial television transmission (Doordarshan), satellite
broadcasting, and video television. In all of those modalities, the film's owner owned
distinct copyright, which he might assign to multiple people.
 As a result, the satellite broadcast copyright of a film was a separate right of the film's
owner, and the plaintiff's video copyright did not include it.

Mode of Assignment (Section 19)

 According to section 19, a copyright assignment is only legal if it is made in writing and
signed by the assignor or his lawfully authorized representative. The assignment of a
copyright in a work should identify the work and specify the type of rights given, as well
as the assignment's duration and territorial scope. It should also include the amount of
royalty payable, if any, to the author or his legal heirs during the time of the assignment,
as well as the fact that the assignment may be revised, extended, or terminated on
mutually agreed-upon terms.
 If the assignment period is not specified, it will be assumed to be five years from the date
of assignment. If the territorial scope of the assignment is not specified, it will be
interpreted to apply to the entire country of India.
 Section 19(8) also states that copyright work assigned in violation of the terms and
conditions under which rights have been assigned to a particular copyright organization
where the author of the work is a member is void.
 In addition, Sections 19(9) and 19(10) state that the assignment of copyright for the
purpose of making a cinematograph film or sound recording does not affect the author's
entitlement to an equal part of the royalties and consideration due for the use of his
protected work.
 It was held in Saregama India Ltd v. Suresh Jindal that the owner of the copyright in a
future work may assign the copyright to any person for the whole or part of the copyright
and that once the assignment is made, the assignee is treated as the owner of the
copyright for the purposes of this Act.

Disputes with Respect to Assignment of Copyright (Section 19a)

 According to Section 19(a), if the assignee fails to make sufficient use of the rights
assigned to him and such failure is not attributable to any act or omission of the assignor,
the Appellate Board may revoke the assignment after receiving a complaint from the
assignor and conducting such inquiry as it deems necessary.
 In the event of a dispute over the assignment of copyright, the Appellate Board may issue
a proper order after receiving a complaint from the aggrieved party and conducting any
investigation it deems necessary, including an order for the recovery of any royalties due.

Assignment by Operation of Law (Section 20)

 If the owner of the copyright dies without leaving a will, the copyright will pass to his
personal representative as part of his estate. Section 20 states that if a person is entitled to
copyright under bequest and the work has not been published before the testator's death
unless the testator's will or any codicil thereto expressly states otherwise, such person is
considered to have copyright in the work to the extent that the testator was the owner of
copyright immediately before his death.

Licensing of Copyright

The owner of a copyright may give a license to perform any of the acts over which he has
sole authority. The following are the different types of licenses:

Section 18 of the Copyrights Act defines a: Voluntary Licence

 The author or copyright owner has exclusive rights to his or her creative work, and he or
she is the only one who may grant a license for it.
 The owner of the copyright in a work may give any interest in his copyright to any person
by license in writing, which must be signed by him or his duly authorized representative,
according to Section 30 of the Copyright Act 1957.
 A license can be issued not only for existing work but also for future work; in this case,
the assignment will take effect when the future work is completed. If there is no
 stipulation to the contrary, a licensee of the copyright in a future work who dies before
that work comes into existence will be entitled to the benefit of the license.
 The license mode is similar to an assignment deed, with section 19 providing the
appropriate changes and alterations (section 30A). As a result, just like an assignment, a
licensing deed for a work should include the following information:
a. Duration of license
b. The rights which have been licensed
c. Territorial extent of the licensed
d. The quantum of royalty payable
e. Terms regarding revision
f. Extension and termination

Compulsory license

 Compulsory and statutory licenses can affect the identification of the licensee with whom
the owner chooses to do business, as well as the terms, including royalty rates, that the
owner may establish. Compulsory licenses, when viewed in this light, are less of a
violation of owner sovereignty on both grounds.
 The owner does maintain some liberty in terms of entering into proper licensing
agreements with those he sees fit, and he is also allowed to negotiate the terms of the
license within reason.
 A compulsory license is usually triggered by an unjustified refusal to deal with a person.
 This takes us to the third key difference between a mandatory and statutory license. The
former is always granted after an individual makes a specific request to the appropriate
authority.
 The latter, on the other hand, is the authority's broad setting of royalty rates and the
issuance of standardized licenses to all those who wish to use them. As a necessary
corollary, the owner has no control over the identities of persons who receive the license
or the amount of royalties they pay.

Statutory license

 Statutory licenses, on the other hand, do not necessitate any investigation into the owner's
behavior. Once the work fits into the broader class of works that can be licensed in this
way, it tries a wholesale expropriation of owner autonomy.
  Cover version recording licenses (Section 31C) and broadcasting licenses are the two
types of statutory licenses (Section 31D).
 The first has existed since the beginning, however as part of the fair dealing exceptions
in Section 52. The second is a relatively new addition to the Act, as it was amended in
2012.

Termination of licence granted under Section 32-A

The licence granted for reproduction and translation may be terminated by Copyright Board if
subsequent to grant of licence, the owner himself has republished the work or has made
translation of the work at a reasonable price.

However, the termination will not take effect until after the expiry of three months from the date
of service of notice. The licence-holder will be permitted to sell or distribute copies of translation
produced before the termination of licence takes effect until they are exhausted.

Difference between Creative Commons and Copy

Creative Commons is actually a license that is applied to a work that is protected by copyright.
It's not separate from Copyright, but instead is a way of easily sharing copyright work. Because
copyright is magical, good chunk of what's created is automatically protected by copyright.
Copyright confers some pretty heavy duty protections so that others don't use your work without
your permission.

Attribution. This requires people who use your work to attribute it to you. No cropping the
image to cut off your name, or worse, replacing their name with theirs, they have to let people
know that you are the creator or licensor of your work.

Non-Commercial. This means that they can use your work so long as they aren't using it for
commercial purpose. What that means? Creative Commons defines commercial use as "primarily
intended for or directed towards commercial advantage or private monetary compensation".

No Derivatives.-A derivative work is a work that modifies the original copyrighted work. So a
movie is a derivative work of a novel. You don't have to have such radical changes to constitute
a derivative work, though; a sequel to a novel is also a derivative work. If it is shared under a no
Derivatives license, they can use your work as long as they don't modify it.

Share Alike. One of the more permissive restrictions, share alike allows to use and modify your
work so long as they allow others to use and modify the work they create using your work.

All Creative Commons licenses carry the attribution requirement. You can mix and match the
other restrictions that feel best for you. Attribution Share Alike, Share Alike Non Commercial,
Attribution No Derivatives etc.

Special Rights of the Author under the Copyright Act

Section 57 of the Act states that the author has the following rights, in addition to the
economic rights granted to the author:

1. The right to claim authorship of work (also known as the ‘Paternity Right’ under Article 6b is
of the Convention); and
2. The right to restrain, or claim damages in case of distortion, mutilation, modification, or other
act about the said work which is done before the expiration of the term of copyright if such
distortion, mutilation, modification, or other act would be prejudicial to his honor or reputation
(known as the ‘Integrity Right’ under Article 6bis of the Convention).

These rights are available to the author even after assignment or transfer (in whole or part) of the
copyright.

The need for granting such rights was recognized in the case of Amar Nath Seghal vs. Union of
India (2005 (30) PTC 253 (Del)). In this case, a huge mural was displaced from its original
location without the author's permission. Delhi High Court, while granting a permanent
injunction and damages. Rs 50,00,000 (Rupees Fifty Lakhs) to the author held that “When an
author creates a work of art or a literary work, it is possible to conceive of many rights which
may flow. The first and foremost right which comes to one's mind is the “Paternity Right” in
work, i.e., the right to have his name on the work”. There can be no purity without integrity. It
may be a matter of opinion, but certainly, treatment of a work that is derogatory to the author's
reputation or in some way degrades the work as conceived by the author can be objected to by
the author. This would be the moral right of “integrity”.

Can these special rights/moral rights be waived?

In India, there is no concrete jurisprudence regarding waiving of copyright law, but in the case of
Sartaj Singh Pannu vs. Gurbani Media Pvt. Ltd. & Another (220 (2015) DLT 527), the Court
held that “As long as the waiver is voluntary, it cannot be said to be opposed to public policy.”.
On the contrary, moral rights are treated as fundamental rights of the author as they are not
merely for the benefit of the individual but for the benefit of the general public, as a matter of
public policy. These two varying views portray subjective difficulty concerning waivers of moral
rights. The special rights of the author are perpetual. However, very few authors know such
rights, seldom enforced. Special rights offer adequate protection to the authors, even after
transfer or assignment, to safeguard his/her work.

Registration of Copyright

In India, the copyrights registration is taken to create proprietary rights in the field of literary,
dramatic, musical and artistic works and producers of cinematograph films and sound recordings.

Process for Copyright Registration

Step 1: Filing Application

Application must be submitted with the Copyrights Authority with requisite fees which can be
paid either in Demand Draft or through online payment options. Once this application is filed, a
unique diary number is generated and allotted to the Applicant. With the diary number, the
Applicant can track the status of the application. Further, within 30 days of filing of the
Application, the Applicant has to submit the work (which is to be copyright) with the authorities.

Step 2: Examination

Once the Application is filed and work is submitted, the application will be sent to the examiner
of Copyrights. After, examination of Application, the examiner will either accept the Application
or will raise their objections (if any).

In case of zero discrepancies:

This indicates that the application has complied with all requisite criteria needed for the
copyright registration. In case of objection:

In case of objection raised,

legal reverts has to be filed within due time.

In case of Oppositions:

Authorities channelize letters to the 2 involved parties, attempting to win over them to require
back the objection After requisite replies from the third party, the registrar conducts a hearing.

Step 3: Registration
As is seen from the aforesaid steps, the registration only depends on the Learned Registrar. Once
objection has been removed, copyright registration is issued and thereafter, proprietor can
lawfully exercise all rights that go together with the ownership of that copyright.

Copyright could be a style of property law. it’s registered to shield original items of labor like
music, art, literature, cinema/film, photography, or a worm. There are in-depth classes that may
be registered for copyright by the creators. It provides exclusive and complete rights to the
creator of the work.

Need for Registration of Copyright

The awareness of holding Laws is significantly low among the social control authorities in
India, and most of the scientific discipline judicial proceeding is confined to metropolitan cities.
Despite the very fact that the registration of copyright isn’t necessary in India and is protectable
through the International Copyright Order, 1999, it’s advisable to register the copyright because
the copyright registration certificate is accepted as a “proof of ownership” everywhere and being
a government registration, it give recognition at every place whether it is in courts, disputes,
online forums, companies, channels etc. If a person is having copyright registration of his work,
it provides ease in proving the ownership and also taking advantage of ownership.

Case

In CATERPILLAR VS KAILASH NICHANI, the litigant, a distant company, was carrying on

business in many places in the Republic of India together with Delhi, through its Indian
distributors and collaborators. The litigant claimed the relief of ad-interim injunction for
preventing infringement of its copyright by the litigant, although the litigant was dealing in
several products. The Hon’ble Supreme Court command that it was not necessary to indicate that
the business is carried on by the litigant in Delhi ought to essentially be in respect of footwear
and articles of consumer goods similarly. It’s adequate if the business was being carried on by
the litigant in Delhi associated any that there was an infringement of plaintiff’s copyright in
respect of sure product, that were being sold by the litigant in Delhi. The court may command
that Section 62 of the Copyright Act makes an apparent and important departure from the norm
that the selection of jurisdiction ought to primarily be ruled by the convenience of the litigant.
The general assembly in its knowledge introduced this provision birthing down opposite norm
than the one that comes into being in section 20 CPC.
Copyright Authorities
The term copyright office is given under section 9 on the Copyright Act,1957 makes it
compulsory to have a copyright office. The copyright office is controlled by the registrar of
copyright which is appointed by the Union government, which means that he will be working
under the guidance, supervision and orders of the union government. The main aim of
registration office is to provide facilities of registration and is headed by the registrars. The
copyright office is located at IPO (Intellectual Property Office), Plot No. 32, Sector 14, Dwarka,
Delhi, 110075 from G-30, August Kranti Bhawan, Bhikaji Cama Place, New Delhi, 110066. The
jurisdiction of this office is extended to whole of India. Copyright office performs the following
copyright tasks:

 Literary work
 Artistic work
 Story themes
 Lyric books
 Story books
 Software
 Cinematograph films
 Music
 Sound recordings

Copyright Society

Copyright societies can be referred to as a legal body whose object is to protect or safeguard the
interest of owners of the work in which copyright subsists.

The functions of a copyright society are to grant a licence of the copyright in original work for
the reproduction, performance, issuing copies of the work to the public, locate infringement of
the copyright, and initiate any legal proceedings if required.

Evolution of copyright society

Before the commencement of the Copyright (Amendment) Act, 1944, Section 33 to Section 36
used to deal with the performing rights societies. This society used to carry on the business of
issuing or granting licences for the performance in India of any work in which copyright
subsisted. However, the ambit of such a society’s power was limited to the field of literary,
dramatic, musical work. In 1994, after the commencement of the Copyright (Amendment) Act,
1994, provisions relating to copyright societies were stated in the said Act.

Reason for the development of copyright societies

It has been usually observed that the authors of creative works are not business-minded, or
interested in financial resources and are often prone to the exploitation of their work. For
example, if an author has created an original piece of literary work, then the author might get a
monetary benefit by reproducing copies of his work and selling them to the public at large.
However, this is only possible if the work is licensed to a publisher. It is also extremely difficult
for the owner of the work to prevent infringement of the work. At times, it has been also
observed that they are unable to keep track of all the uses others make of their work. Therefore,
to overcome such difficulties, owners of copyright works decided to form copyright societies to
licence their works for performance or communication to the public. The societies are authorised
to do such work based on payment.
 UNIT 5

Copyright Infringement

Meaning of Copyright Infringement

Copyright infringement refers to the unauthorized use of someone’s copyrighted work. Thus, it is
the use of someone’s copyrighted work without permission thereby infringing certain rights of
the copyright holder, such as the right to reproduce, distribute, display or perform the protected
work.

Section 51 of the Copyright Act specifies when a copyright is infringed. According to Section 51
of the Act, Copyright is deemed to be infringed if:

 A person without obtaining the permission of the copyright holder does any act which
only the copyright holder is authorised to do.
 A person permits the place to be used for communication, selling, distribution or
exhibition of an infringing work unless he was not aware or has no reason to believe
that such permission will result in the violation of copyright.
 A person imports infringing copies of a work
 A person without obtaining the authority from the copyright holder reproduces his
work in any form.

Copyright Infringement examples

 If a person uses someone’s song as background music in his/her music video then he
could be made liable for copyright infringement.
 If a person downloads movies or songs from an unauthorized source then it will
amount to copyright infringement.
 A person is free to record a TV program to view it later, but if he transfers or
distributes it to others then it becomes a copyright infringement.
Copyright infringement elements

 The work was the original creation of the author

 The defendant actually copied the work of the author. It is important to note that not
all factually copying is legally actionable. The substantial similarity between the
works of the author and the defendant has to be established to prove that the defendant
has infringed the author’s copyright.

Copyright Issues
There are a number of issues that can arise in Copyright. These are discussed below:

 Plagiarism

Someone may copy the copyrighted material and pretend it to be his original work. People are
allowed to quote the work or refer the work but the person who is using the copyrighted work
has to give the credit to the copyright holder.

 Ownership

The issue of ownership may arise when an employer works for an organisation. In such case who
has the copyright over the work? If a person is an employer then it is the organisation which has
the copyright over the material but if a person is a freelance writer then it is the person himself
who is the sole owner of the copyrighted material.

 Derivative Works

Derivative works use the already existing work of someone. It is a new version of already
existing material. For example, translating a book into another language. A person requires a
license for it but if he has not obtained the license for it then he can be made liable for copyright
infringement.

Types of Copyright Infringement

Copyright infringement can be broadly classified into two categories:

1. Primary Infringement
2. Secondary Infringement
Primary Infringement

Primary infringement refers to the real act of copying the work of the copyright holder. For
example, photocopying a book and then distributing it for commercial purposes.

However, sometimes a person may only copy a part of the work, for example, a paragraph of an
article. In such a case, the copyright holder is required to establish two things:

 Substantial Taking

A copyright is infringed only when an unauthorized person copies a substantial part of the work.
For example, copying a catchy phrase of a lyricist.

While deciding the case, the court also tries to conceive, how an ordinary person will perceive
the work. If an ordinary person will perceive that the work is copied from a different source then
it will be considered infringement.

If the writing style, language and errors are similar to the copyrighted work then it will serve as
evidence of copying in a court of law. The minor alterations made by the person in the work of a
copyright holder will not affect the claim of infringement.

 Casual Connection

The copyright holder must prove that there is a similarity in the works of the copyright holder
and the infringer. However, this may be because of several other reasons like both of them have
used the same source for the research. In such a case, the copyright holder can not claim for
infringement.

Secondary Infringement

Secondary Infringement refers to the infringement of copyright work without actually copying it.
This can happen in the following ways:

 Providing a place for Copyright Infringement

If a person provides the place or permits the place (for profit) to be used for communicating of
the work the public and such work amounts to copyright infringement then such person can be
made liable for the offence of copyright imprisonment. However, if the person is unaware or has
no reason to believe that the place is used for copyright infringement then cannot be made liable
for the same.

It is important to note that the person should let the place for “profit” to be made liable for
copyright infringement. If an NGO lets the place then the NGO cannot be made liable for the
same.

 Selling Infringing Copies

If a person sells the copies that infringe the right of the copyright holder then it will amount to
copyright infringement.

 Distributing Infringing Copies

When a person distributes infringing copies of the copyright holder works then it will amount to
copyright infringement. For example, if a person uploads a movie on the internet for free then it
is an infringement of copyright.

 Importing Infringing Copies

Importing the infringed work of the copyright holder in India also amounts to infringement of
Copyright. However, if the person has imported the infringed work for the domestic or personal
use then it will not amount to Copyright Infringement.

Landmark Cases

Sarla A. Saraogi & Ors Vs. Krishna Kishore Singh

The New Delhi High Court declined to impose an interlocutory order against the distribution and
broadcast of cinematograph films copyright supposedly relating to SSR (Sushant Singh
Rajput) because SSR’s parents failed to establish prima facie evidence, and the ratio of
advantage was in favor of the respondents. ‘NYAY The Law,’ ‘Suicide or Death,’ and ‘Roughly
in the middle,’ according to the plaintiffs in the lawsuit, must be inducted and prohibited from
being disclosed, printed, and conveyed to the world. The Complainant claimed violations of
publicity and security rights and the right to due process, slander, and infringement of the Indian
Constitution’s Article 21.
The Complainant struggled to create a legitimate argument for copyright infringement of SSR’s
famous person or licensing because the Claimant was unaware of the subject matter of the
movies, the plaintiffs were not taking SSR’s appearance, similarities, or title, and the movies had
suitable provisos, the Court concluded after evaluating the facts and findings further showed. It
further stated that famous rights may cease to exist after the demise of the star and that plaintiffs
may use information from the official information without responsibility. Finally, the Court
concluded that a libel claim is hypothetical with no access to the offensive content.
The Court further stated that no breach of the legal right to a fair trial might be considered a
result of news or film coverage. It continued to say that when it comes to material that is part of
the public domain, freedom of speech and expression takes precedence over Article 21. While
rejecting the order, the Court requested the plaintiffs provide accounts to reimburse any losses.

Spartan Engineering Industries Pvt. Ltd. Anr. Vs. Dassault System Solidworks
Corporation & Anr.

The Delhi High Court addressed the problem of software copyright infringement in this
judgment. Defendant No. 1 is a French firm that created the program ‘Solidworks.’ This program
makes it easier to model and build goods in a 3D setting. Defendant no.2 is a sister corporation
founded by Defendant no.1 to handle all of Defendant no.1’s business in India.
Defendants No. 1 and 2 (“Defendants”) claim that the program was created as a job for pay by
their workers and that the Petitioners own the copyright. The Defendants argue that the software
package and its accompanying training materials are copyright literary work by the Act of
1957 (Act). Because the United States and India are both signatories of the Convention in Berne,
the World Trade Organization’s Agreement, and the Universal Copyright Convention, India’s
program is protected in Section 40 of the Copyright Act on trade-related. (latestphonezone.com)
Plaintiff argued that they acquired evidence in May 2018 about the Respondents’ commercial
usage of copied and unlicensed part of the ‘Modelling’ software application without completing
the requisite license cost. The Consumers further claimed that improper usage of the program
had escalated since August 2020 and that all attempts to achieve a settlement were unsuccessful
because the Defendants denied violation.
With this, the Defendants granted an order from the Court, claiming that using a counterfeit or
unauthorised version of the Defendants’ computer program would constitute copyright violations
under Section 51 of the Copyright Act. The Defendants also invoked Section 63B of the Act,
making it illegal to intentionally use a stolen software program. Furthermore, Plaintiff contended
that the Defendants’ breach of the synchronization license agreement resulted in commercial
and intellectual property violations.
“Software duplication is a serious matter that requires to be addressed in the bud,” the judge said
in granting the decision. Accordingly, the Petitioners were given a close substitute ex-parte
injunctive relief prohibiting the Plaintiffs from using, replicating, or disseminating any illegally
downloaded, non-licensed, or unapproved software packages governed by the Complainants, and
also typesetting their computer networks and trying to erase any data related to aiding others in
infringing the Complainants’ copyright.
REMEDIES AVAILABLE FOR COPYRIGHT INFRINGEMENT
Copyright infringement is the use of works protected by copyright law without permission,
infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce,
distribute, display or perform the protected work, or to make derivative works. The copyright
holder is typically the work's creator, or a publisher or other business to whom copyright has
been assigned. Copyright holders routinely invoke legal and technological measures to prevent
and penalize copyright infringement. Copyright infringement disputes are usually resolved
through direct negotiation, a notice and take down process, or litigation in civil court. Egregious
or large scale commercial infringement, especially when it involves counterfeiting, is sometimes
prosecuted via the criminal justice system. Shifting public expectations, advances in digital
technology, and the increasing reach of the Internet have led to such widespread, anonymous
infringement that copyright-dependent industries now focus less on.

Pursuing individuals who seek and share copyright- protected content online, and more on
expanding copyright law to recognize and penalize – as "indirect" infringers – the service
providers and software distributors which are said to facilitate and encourage individual acts of
infringement by others.

The following are some of the commonly known acts involving infringement of copyright:
a. Making infringing copies for sale or hire or selling or letting them for hire;
b. Permitting any place for the performance of works in public where such performance
constitutes infringement of copyright
c. Distributing infringing copies for the purpose of trade or to such an extent so as to affect
prejudicially the interest of the owner of copyright
d. Public exhibition of infringing copies by way of trade; and Importation of infringing copies
into India

The copyright act 1957 extends protection to original artistic works by conferring certain
exclusive rights on the authors of the owners. In case of infringement the copyright owners have
been 6 bestowed upon certain remedies. There are three kinds of remedies available against
infringement of copyright. They are civil, criminal and administrative remedies. From a practical
perspective, civil remedies are most commonly used. Criminal remedies are used less often than
civil remedies and administrative remedies are least used.

 CIVIL REMEDIES:

Civil remedies for infringement of copyright are of two kinds. First-prohibited civil remedies and
second compensatory civil remedies.
First one- prohibited civil remedies under the umbrella of prohibited civil remedies following are
available-interlocutory injunction, Mareva injunction Anton Piller orders John Deo Orders and
permanent injunction. The most important prohibited civil remedy is interlocutory injunction or
also known as temporary induction.

Prohibited civil remedies

Interlocutory injunction or temporary injunction- Interlocutory injunction are granted to provide

entertained relief to plaintiff during the pendency of the suit. They are considered as fast and
effective remedies for copyright. The plaintiff who use interlocutory injunction get a tremendous
advantage because the defendant is stopped at the earliest. Moreover the interlocutory injunction
gives the court the power to pass ex Parte decree in the absence of the defendant under Indian
legal system. The interlocutory injunction has been provided in the Specific Relief Act 1963.

Injunction is generally categorized into two types. First permanent injunction and second
temporary injunction. Section 37 of the Special Relief Act is obtainable in another temporary
injunction has been provided under Order 39 of the code of civil procedure 1908. The Honorable
Court in the landmark case of the supreme court of Seema Arshad Zaheer and others vs
municipal corporation of Greater Mumbai and others in the year 2006 has made that certain
procedure need to be followed by the court in order to grant the guidelines while considering an
application for grant of temporary injunction. The court observed that the discretion of the court
is exercised only when few 7 requirements have been followed. First, existence of a primer facie,
second when the need for protection of plaintiff right is compared by all weighted against the
need of protection to be followed while granting temporary injunction fast i.e., balance of
convenience are in favor of the plaintiff and third is repairable injury in case it is temporary
injunction as and been granted almost every copyright infringement. At every case of temporary
injunction, suit is filed along with the case that the plaintiff needs to be quick in filing the suit as
and as early as possible when he comes to know with the knowledge of any infringement.

Mareva injunction

This is a form of interlocutory injunction known as Mareva injunction. Its purpose is to detain
the defendant from disposing of the assets which may be required for satisfying the plaintiffs
removing those assets from the jurisdiction of the court.

Anton Piller Orders

Anton Piller order has derived its name from a case. It can be made by the court in a civil action
of the copyright infringement to allow the applicant to enter the property of the defendant to
inspect and search and cease to preserve the evidence and his work. In order to obtain such an
order applicant must prove that first it has a cause of action or has suffered damages. The
plaintiff party has to specify some documents as an evidence before the court for filing against
the defendant. Anton Piller orders is not a search warrant, it only authorizes entry and inspection
and the respondents information of the defendant. Without such approval from the court and the
defendant, then it would lead to trespass. It is often used for injunction which are used to restrain
the defendants from removing assets beyond the jurisdiction of the court.

John Doe Orders

John Doe orders are actions for seizing and assisting orders passed by the court of law against
anonymous infringement. The person who acts as a threat is not known as they are made due to
unknown identity. These orders in recent times have been issued in matters of protecting
copyright protection of books and prevention of movie buyers are used here. It is a term used as
a reference to provide a pattern who are unknown autonomous entity. Such person may be a
group or an individual or legal organization or company or register society provider website
newspaper. It is 8 referred to as a person whose identity is unknown or as defined by the
Merriam-Webster, it is a person who is a path to a legal proceeding whose real name is
unknown.

Permanent injunction

Permanent injunction helps the plaintiff to succeed at the trial of the infringement of copyright.
He will normally be entitled to a permanent injunction to restrain his infringement of work. This
injunction will obviously operate during the unexpired term of the copyright for the grant of final
damages. In permanent injunction, the plaintiffs need not go through actual damage. The plaintiff
is a proof that is copyright has been infringed. The court will grant an injunction without any
proof of actual damage but at the same time the plaintiff must show that there is the probability
of damage due to the infringement.

Compensatory civil remedies

This set of remedies include three remedies- first damages, second account of profit and third
delivery up/ destruction. This is to compensate the plaintiff for the losses suffered due to
copyright infringement. The first compensatory civil remedies is damages. The purpose of
awarding of damages is to restore the plaintiff to position before the infringement has occurred.
If infringement has been established the damages are basically prescribed. Nominal damages are
always terminal value legal right has been conferred respective of the actual damage. Generally
the damages should be equivalent to the fair free of royalty which the defendant was stamped
with had he got the license from the copyright along with many other factors will be taken into
consideration while considering the damages like the reduction of the sale of copyright owners
work etc. The second type of compensatory civil remedies is accounts of profit. It is an equitable
remedy that is required by defendant to hand over the plaintiff the actual amount of profit made
by the defendant due to the copyright infringement. This is an investigation of actual profit made
by the defendant. The difference between account of profit and damages is that the defendant is
given to give up his alleged statement gain to the party whose rights have been infringed whereas
the accounts of damages the infringers need to compensate the plaintiff for the loss suffered by
him. Next remedy is the delivery up or destruction. This remedy entitles the plaintiff to recover
the possession of the infringing copies.

 CRIMINAL REMEDIES:

Criminal remedies are distinct and independent of other remedies and can be availed as
simultaneously with the civil remedies to stop the further infringement during the pendency of
civil suit. It does not justify the strain of criminal remedies in which the same question is
involved in addition to the criminal complaint cannot be dismissed merely because the dispute is
civil in nature. From a practical perspective the criminal remedies are much more effective than
civil remedies as the former can be disposed of quickly. In addition, the criminal proceedings
involves with the honor and social status of the individual. As a consequence of it sometimes the
infringer step down of the court to save his Prestige. Like any criminal offence knowledge and
mens rea is an essential elements of the offences relating to criminal nature. Section 63-73 of the
Copyright act, 1957 deals with the criminal remedies. The offences prescribed under criminal
remedies are- first infringement of copyright, second- knowing use of influencing copy of
computer program, third-position of plaint for making in fencing copy, fourth-circumventing
technological measures, fifth- altering rights management information and lastly-contravention
of section 52A.

Infringement of copyright under section 63 makes it an offence for a person who infringes work
or be any other right conferred by the act or knowingly. But such infringement in construction of
building is not an offence and therefore not punishable the offence of infringement of copyright
punishable with imprisonment for a term which shall not be less than 6 months and which may
extend upto three years with a fine which shall not be less than 50000 rupees for which may
extend to 200000 rupees. However the court has discretion to reduce the minimum term of
imprisonment and minimum fine for adequate a special reasons with the infringement has not
been made however there is no change in the maximum punishment. It is held that offence under
63 of copyright act is cognizable and non bailable offence. Under section 63 B of the copyright
act 1957 under this the punishment of and it is furnished for an improvement of 7 days which can
be extended to three days and with the fine of minimum 50,000 which can be extended to
200000 rupees. Another perception of punishment for copying, section 65 provides any person
who knowingly makes an offence or his possession of any work the purpose of infringing copies
of any work in which copyright is punishable with imprisonment of 2 years and shall also be
liable to be fined for circumventing technological measures. As per section 65B any person who
served comments on effective technological measure applied for the purpose of protection of any
of the rights conferred with an intention of infringement of such right shall be punishable with
imprisonment which can be extend towards two years and can also be liable for fine. However
there are certain exceptions. First encryption research conducting any lawful investigation or
testing the security and circumventing technological measures intended for identification of
surveillance of a user taking measures necessary in the interest of national security, altering
rights management info section 2 (x a) defines rights management information. It means that the
title or other information identifying a work of performance with the name of the author and of
the performer, the name and address of the owner of the rights with the terms and conditions
regarding the use of the rights and any number of code that represents this information. Section
65b also states that the rights of the owner should be entitled to avail such civil remedies under
this section. The offences are categorized as the habitats including another as removal or
alteration of copies of works or unauthorized and knowing distribution importations broadcaster
communication to the public of search copies of works. And the contravention of section 52A
makes it mandatory to give certain information on the sound recording or video firms. Under this
a person in contravention of section 52A shall be liable for imprisonment for three years and
shall also be liable for fine. This is to ensure the prevention of cinematography work without any
name of the manufacturer and copyright owner.

 ADMINSTRATIVE REMEDIES:

Under administrative remedies, one may file for moving the Registrar to ban the import of
infringing copies and delivery of the confiscated infringing copies to the owner. To prevent the
importation of work which is sometime also known as border control measures. This provision
has been completely revamped in 2013. The procedure prescribed in the section can be
summarized in the following steps. First the owner of the rights need to submit a written notice
to the commissioner of the customs or any other authorized officer under central excise
department. Second step- order by the Commissioner. The Commissioner may pass an order
after seeing the evidence treating the infringer with punishment. Third step custom officers if can
detain the goods attained by the custom officers and intimation will be sent to both the infringer
and the owner of the copyright waiting for 48 hours of attention. The final step is the order from
competent court providing instructions on the disposal of such goods within 14 days from the
date of the detention.