UNIT-I

A) INTRODUCTION TO COPYRIGHT LAW

Copyright constitutes an essential element in the development process of a country. The enrichment of the
national cultural heritage depends directly on the level of protection afforded to literary, dramatic, musical
and artistic works, cinematograph films and sound recordings. The higher the level, the greater the
encouragement for authors to create, the greater the number of a country’s intellectual creations, the higher
its renown. In the final analysis, encouragement of intellectual creation is recognized as one of the basic
prerequisites of all social, economic and cultural development.

The idea of Copyright protection only began to emerge with the invention of printing, which made it for
literary works to be duplicated by mechanical processes instead of being copied by hand.

In India, the earliest statutory law on copyright was Indian Copyright Act of 1847, which was enacted
during the East India Company’s regime. The Act was passed by Governor-General of India affirmed the
applicability of English copyright law to India. The Copyright Act, 1911 while repealing earlier statutes on
the subject was made applicable to all the British colonies including India.

In 1914, the Indian Copyright Act was enacted which modified some of the provisions of Copyright Act,
1911 and added some new provisions to it to make it applicable in India. The Indian Copyright Act, 1914
remained applicable in India until it was replaced by the Copyright Act, 1957.

The primary objective of copyright is not to reward the labour of authors, but to promote the progress of
science and useful arts. To this end, copyright assures authors the right to their original expression but
encourages others to build freely upon the ideas and information conveyed by a work.

The objectives of copyright law are mainly two-fold. Firstly, the copyright law is developed by the nations
to assure authors, composers, artists, designers and other creative people as well as the film producers and
producers of sound recordings, who risk their capital in putting their works before the public, the right to
their original expression. Secondly, the copyright law allows people to make some free uses of the copyright
material. The reason for having provisions relating to free uses in the Act is to strike a balance between the
interests of the copyright owner and the interests of the society at large.

In Eastern Book Company vs. D.B. Modak, the Supreme Court held that copyright is a right to stop others
from exploiting the work without the consent or the assent of the owner of the copyright. A copyright law
presents a balance between the interests and rights of the author and that of the public in protecting the
public domain, or to claim the copyright and protect it under the copyright statute. One of the key
requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of
the author as well as that of public in protecting the matters in public domain. It is a well-accepted principle
of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they
originated with the author of any work which embodies these facts. The issue of copyright is closely
connected to that of commercial viability, and commercial consequences and implications.

Copyright is an incorporeal property by nature. The property is an ‘intellectual property’ in the sense that it
originates in the minds of persons before it is reduced to material form. However, it is noteworthy that ideas
and thoughts which merely exist in a man’s brain are not protected as ideas and thoughts are not works
under the copyright law. But once reduced to writing or other material form, the result becomes a work
worthy of protection.

The copyright protection is sine qua non for the protection of economic rights of the authors/copyright
owner. At the same time it is also indispensable to confer certain rights on the public in the copyrighted
work of the author. This is also known as the limitations of copyright, which are necessary to keep the
balance between two conflicting interests.
The first statutory limitation is the limited duration of copyright in a work. The term of copyright
protection is limited to the life of the author and 60 years after his death. The second statutory limitation
on the rights of copyright owner is fair dealing with his work. Under copyright law, some uses of protected
works are free. These are usually referred to in general terms as ‘fair use’ or ‘fair dealing’. The third
statutory limitation on the rights of copyright owner is grant of non-voluntary licenses in accordance with
copyright law. The non-voluntary license may be either a compulsory license or a statutory license.

The concept of “neighbouring rights” which is also known as “related rights” emerged primarily due to
technological developments which took place since the second half of the 19 th century. The term
“neighbouring rights” generally covers three kinds of rights:
 The rights of performing artists in their performances,
 The rights of producers of phonograms in their phonograms, and
 The rights of broadcasting organisations in their radio and television programmes.

B) BRIEF INTRODUCTION TO RELATED INTERNATIONAL TREATIES AND

CONVENTIONS
1. Discuss the role of International Conventions in the evolution of Indian Copyrights Act, 1957. (12.5)
2. Explain the content and scope of (i) WIP Copyright Treaty and (ii) Copyright related provisions in
TRIPs Agreement. (12.5)
3. Berne Convention. (5)
4. TRIPs. (5)

At international level, there has been a continuous surge to develop international uniform rules for
safeguarding the rights of the owners of intellectual property including copyright.

Berne Convention
In 1886, the International Convention for the Protection of Literary and Artistic Works commonly known as
“Berne Convention” was adopted to recognise and regulate the rights of the copyrights owners. This was the
first international convention on copyright which was revised several times.

The purpose of Berne Convention is “to protect, in as effective and uniform a manner as possible, the rights
of authors in their literary and artistic works.” The Convention is based on three basic principles:
 National Treatment: Works originating in one of the Member States of Berne Union must be given the
same protection in each of the other Member States as the latter grants to the works of its own nationals.
 Automatic Protection: Enjoyment and exercise of rights under the national treatment principle shall
not be subject to any formality. This means that the protection is granted automatically and is not
subject to any regulation, deposit or to any formal notice in connection with the publication.
 Independence of Protection: Enjoyment and exercise of rights shall be independent of the existence of
protection in the country of origin of the work.

WIPO Convention 1967

The Convention establishing the World Intellectual Property Organisation, commonly known as WIPO
Convention was signed at Stockholm in 1967 and came into force in 1970. Since 1974, WIPO has acquired
status of a specialised agency of the UN.

WIPO has mainly two objectives. The first objective is to maintain and increase respect for intellectual
property throughout the world, in order to favour industrial and cultural development by stimulating creative
activity and facilitating the transfer of technology and dissemination of literary and artistic works. The
second is to ensure administrative cooperation among the intellectual property Unions established by the
treaties that WIPO administers, such as Paris Union, Berne Union, etc.

In addition to performing the administrative tasks of the Unions, WIPO undertakes a number of activities,
including:
 Normative activities, involving the setting of norms and standards for the protection and enforcement
of intellectual property rights through the conclusion of international treaties.
 Program activities, involving legal technical assistance to States in the field of intellectual property.
 International classification and standardization activities, involving cooperation among industrial
property offices concerning patents, trademarks and industrial design documentation.
 Registration activities, involving services related to international application for patents for inventions
and the registration of international marks and industrial designs.

TRIPs Agreement 1994

The Agreement on Trade-Related Aspects of Intellectual Property Rights including Trade in Counterfeit
Goods (TRIPs Agreement) was adopted as a part of the Final Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations.

The objectives of TRIPs Agreement are inter alia, to reduce distortions and impediments to international
trade, to promote effective and adequate protection of intellectual property rights, and to ensure that
measures and procedures to enforce intellectual property rights do not themselves become barriers to
legitimate trade.

The TRIPs Agreement is divided into 7 parts and consists of 73 articles. Part I of the Agreement sets out
general provisions and basic principles, notably a national-treatment commitment under which the nationals
of other parties must be given treatment no less favourable than that accorded to a party’s own nationals
with regard to the protection of intellectual property. It also contains a most-favoured-nations clause, a
novelty in an international intellectual property agreement, under which any advantage a party gives to the
nationals of another country must be extended immediately and unconditionally to the nationals of all other
parties.

WIPO Copyright Treaty 1996

WIPO Copyright Treaty 1996 (WCT) is a special agreement within the meaning of Article 20 of the Berne
Convention, as regards Contracting Parties that are countries of the Union established by that Convention
and obligates them to comply with Articles 1 to 21 and the Appendix of the Berne Convention.

The WCT lays down provisions for Contracting Parties to protect two subject matters - (i) computer
programs, whatever may be 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.

The WCT obligates the 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.

WIPO Performance and Phonograms Treaty 1996

The WIPO Performance and Phonograms Treaty 1996 (WPPT) protects performances of performers and
phonograms of the phonogram producers. Unlike WCT, the WPPT does not have any connection with any
other treaties.

The protection under WPPT is to be accorded to the performers and the producers of phonograms who are
‘nationals of other Contracting Parties’. the nationals of other Contracting Parties will have to meet the
eligibility criteria as laid down in the Rome Convention. The Contracting Parties are required to adhere to
the principle of national treatment with regard to the exclusive rights specifically granted in WPPT and to
the right to equitable remuneration provided for in Article 15 of the WPPT. However, this obligation does
not apply to the extent that another Contracting Party makes use of the reservations permitted by Article
15(3) of the WPPT.

C) SUBJECT MATTER OF COPYRIGHT, ECONOMIC AND MORAL RIGHTS

(SS2,13,14,15,16, 57)
1. Economic rights and moral rights in copyright. (5) (12.5)
2. What is the extent of protection of copyright under the Copyright Law in India? Refer to the “idea-
expression dichotomy” as propounded by the Supreme Court of India. (12.5)
3. Moral rights under Copyright Law. (5)

According to Section 13 of the Copyright Act, copyright subsists in the following works:
 Original literary, dramatic, musical and artistic works;
 Cinematograph films; and
 Sound recordings.

Section 13(1)(a) protects original work whereas Sections 123(1)(b) and (c) protect derivative works. Section
13 of the Act stipulates that right to claim copyright is subject to the provisions of the said section and the
other provisions of the Act and does not exist de hors and outside the Act.

I. Original Literary Works

It is not necessary that the work should be the expression of the original or inventive thought, as the
Copyright Act is not concerned with the originality of ideas, but with the expression of thought, and in the
case of a literary work, with the expression of thought in print or writing.

The Copyright Act provides an inclusive definition of literary work in Section 2(o) to include ‘computer
programmes, tables and compilations including computer databases’.

In Eastern Book Company vs. D.B. Modak, the Supreme Court stated that broadly speaking, there would
be two classes of literary works: (a) primary or prior works: these are the literary works not based on
existing subject-matter and, therefore, would be called primary or prior works, and (b) secondary or
derivative works: these are literary works based on existing subject-matter.

In Macmillan and Company Limited v. K. and J. Cooper, it was held that the word ‘original’ does not
mean that the work must be the expression of original or inventive thought. Copyright Acts are not
concerned with the origin of ideas, but with the expression of thought; and in the case of ‘literary work’,
with the expression of thought in print or writing. The originality which is required relates to the expression
of the thought; but the Act does not require that the expression must be in an original or novel form, but that
the work must not be copied from another work—that it should originate from the author.

The Supreme Court of Canada, in the matter of CCH Canadian Ltd v. Law Society of Upper Canada,
observed that the ‘sweat of the brow’ approach to originality is too low a standard which shifts the balance
of copyright protection too far in favour of the owner’s right, and fails to protect the public’s interest by
disseminating intellectual works. On the other hand, the creativity approach of originality is too high. It
implies that something must be novel or non obvious- concepts that are better associated with patents rather
than copyright.

There is no copyright in events which have actually taken place.

Copyright subsists in expressions, not in ideas. Idea is not a subject-matter of copyright. In R.G. Anand vs.
Delux Films, the Supreme Court held that there could be no copyright in an idea, subject-matter, themes,
plots or historical or legendary facts and violation of the copyright in such cases was confined to the form,
manner and arrangement and expression of the idea by the author of the copyrighted work.

The idea/expression dichotomy was explained by the Calcutta High Court in Barbara Taylor Bradford vs.
Sahara Media Entertainment Ltd., where the Court pointed out that the law protected originality of
expression and not originality of the central idea due to the balancing of two conflicting policies. The first
policy was that the law must protect originality of work, thereby allowing the authors to reap the fruits of
their labour and stopping unscrupulous pirates from enjoying those fruits. The second policy was that the
protection must not become an over-protection, thus, curbing down future creativity. If mere plots and
characters were to be protected by copyright, an author could not write anything “original” at all, on a
similar plot or on similar characters.
The Delhi High Court in Pepsico Inc. Vs. Hindustan Coca Cola, refused to recognise copyright in
slogans.

II. Original Dramatic Works

The Copyright Act, 1957 under Section 2(h) provides that “dramatic work” includes any piece for recitation,
choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is
fixed in writing or otherwise but does not include a cinematograph film.

Choreography is the art of arranging or designing of ballet or stage dance in symbolic language. In order to
qualify for copyright protection, it must be reduced to writing. Under Section 178 of the Copyright,
Designs and Patents Act, 1988, “writing” is defined to include ‘any form of notation or code, whether by
hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded…’

Scenic arrangement of acting form is protected under the Act provided it is fixed in writing or otherwise.

III. Original Musical Works

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

In Star India Pvt. Ltd. vs. Piyush Agarwal, the Delhi High Court stated that music was different from
sound, i.e., music only meant what were musical notes which were found on paper or other writing medium,
and not what was heard.

IV. Original Artistic Works

As per Section 2(c), An artistic work means-
 a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
photograph, whether or not any such work possesses artistic quality;
 a work of architecture;and
 any other work of artistic craftsmanship.

V. Cinematograph Films
As per Section 2(f), “cinematograph film” means any work of visual recording and includes a sound
recording accompanying such visual recording and “cinematograph” shall be construed as including any
work produced by any process analogous to cinematography including video films.

According to Section 2(xxa), the expression “visual recording” means the recording in any medium, by any
method, including the storing of it by any electronic means, of moving images or of the representations
thereof, from which they can be perceived reproduced or communicated by any method.

VI. Sound Recordings

As per Section 2(xx), “sound recording” means a recording of sounds from which such sounds may be
produced regardless of the medium on which such recording is made or the method by which the sounds are
produced.

The general rule as per Section 13(2) in respect of all categories of work is that copyright does not subsist in
any work unless in the case of a published work, the work is first published in India, or where the work is
first published outside India, the author is at the date of such publication outside India, the author is at the
date of such publication, or in a case where the author was dead at that date, was at the time of his death, a
citizen of India. In the case of an unpublished work, the copyright subsists only when the author is at the
date of the making of the work a citizen of India or domiciled in India.

Section 13(3) of the Act provides that copyright does not subsist in any sound recording made in respect of a
literary, dramatic or musical work, if in making the sound recording, the copyright in such work has been
infringed. Further, it is provided by Section 13(4) that copyright in a sound recording does not affect the
separate copyright in any work in respect of which or a substantial part of which, the film, or as the case
may be, the sound recording is made.

Copyright also subsists in the adaptation of a work. In India, Section 2(a) of the Act defines ‘adaptation’ to
mean:
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way
of performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in
which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for
reproduction in a book, or in a newspaper, magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription of the work; and
(v) in relation to any work, any use of such work involving its rearrangement or alteration.

The owner of copyright in a work enjoys negative rights. Although the phrase “exclusive rights” is used in
Section 14 of the Copyright Act, yet the copyright owner does not have a positive right to exploit his work,
whether by making copies, performing it or otherwise. The right enjoyed by copyright owner is a negative
one, i.e., it is the right to prevent others from using his work in certain ways, and to claim compensation for
the usurpation of that right. The exclusive rights are also known as economic rights of the copyright owner.
These exclusive rights are subject to the provisions of the Act.

Section 16 provides that no person shall be entitled to copyright or any similar right in any work, whether
published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any
other law for the time being in force, but nothing in this section shall be construed as abrogating any right or
jurisdiction to restrain a breach of trust or confidence.

The copyright conferred under Section 14 of the Act consists of a bundle of rights. The owner of a copyright
is entitled to assign and license each of those rights separately or in bundles. The bundle of rights could vary
in complexity depending upon the nature of the work - literary, dramatic, musical recording or
cinematographic films.

I. Literary, Dramatic and Musical Works

In the case of literary, dramatic or musical work (except computer programme):
(i) reproducing the work in any material form which includes storing of it in any medium by electronic
means;
(ii) issuing copies of the work to the public which are not already in circulation;
(iii) performing the work in public or communicating it to the public;
(iv) making any cinematograph film or sound recording in respect of the work; making any translation
or adaptation of the work.
Further any of the above mentioned acts in relation to work can be done in the case of translation or
adaptation of the work.

Section 3 defines the term “publication” to mean making a work available to the public by issue of copies
or by communicating the work to the public.

According to Section 2(ff), “communication to the public” means making any work or performance
available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or
diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen
individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the
work or performance so made available. Communication through satellite or cable or any other means of
simultaneous communication to more than one household or place of residence including residential rooms
of any hotel or hostel shall be deemed to be communication to the public.
Section 2(q) defines “performance”, in relation to performer’s right, to mean any visual or acoustic
presentation made live by one or more performers.

“Performer” as per Section 2(qq), includes an actor, singer, musician, dancer, acrobat, juggler, conjurer,
snake charmer, a person delivering a lecture or any other person who makes a performance.

Section 53A provides that in the case of resale for a price exceeding ten thousand rupees, of the original
copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or
musical work, the author of such work if he was the first owner of rights under section 17 or his legal heirs
shall, notwithstanding any assignment of copyright in such work, have a right to share in the resale price of
such original copy or manuscript in accordance with the provisions of this section. Such a right shall,
however, cease to exist on the expiration of the term of copyright in the work. The share of author in resale
price shall be fixed by the Copyright Board which shall not exceed 10% of the resale price.

II. Computer Programme

In the case of a computer programme:
(i) to do any of the acts specified in respect of a literary, dramatic or musical work;and
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the
computer programme. However, such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object of the rental.

“Commercial rental” as per Section 2(fa), does not include the rental, lease or lending of a lawfully acquired
copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit
purposes by a nonprofit library or non-profit educational institution.

III. Artistic Work

In the case of an artistic work:
(i) reproducing the work in any material form including depiction in three dimensions of a two
dimensional work or in two dimensions of a three dimensional work;
(ii) communicating the work to the public;
(iii) issuing copies of work to the public which are not already in existence;
(iv) including work in any cinematograph film; making adaptation of the work, and to do any of the
above acts in relation to an adaptation of the work.

IV. Cinematograph Film

In the case of a cinematograph film:
(i) to make a copy of the film, including a photograph of any image forming part thereof or storing of it in
any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film
(iii) to communicate the film to the public.

“Broadcast” is defined under Section 2(dd) to mean communication to the public— (i) by any means of
wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire,
and includes a re-broadcast.

V. Sound Recordings
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
iii. To communicate the sound recording to the public.

Section 15 provides that copyright shall not subsist under this Act in any design which is registered under
the Designs Act, 2000. Further, copyright in any design, which is capable of being registered under the
Designs Act, 2000, but which has not been so registered, shall cease as soon as any article to which the
design has been applied has been reproduced more than fifty times by an industrial process by the owner of
the copyright or, with his licence, by any other person.

In addition to the protection of economic rights, the Copyright Act also protects moral rights of the author.
Moral rights or ‘droit moral’ originated in French Law. The Rome Act of 1928 added the droit moral to the
Berne Convention of 1886. The moral rights are exceptions to the general rule that after an author has
assigned his rights in favour of a publisher or other person, the latter alone is entitled to sue in respect of
infringements. The author has a right to claim moral rights in the work even after the assignment of
copyright.

There are mainly two moral rights:

I. Right of Paternity (Droit de Paternite): Right of paternity means that an author has a right to claim
authorship of his work and can prevent all others from claiming authorship of his work. The author also has
a right to demand that his name should appear in all copies of his work at the appropriate place. He can also
prevent others from using his name in their works.
II. Right of Integrity (Droit de Respect de l’oeuvre): Right of integrity means that an author has a right to
prevent distortion, mutilation or other alteration of his work, or any other action in relation to the said work
which would be prejudicial to his honor or reputation.

Section 57 of the Act recognises moral rights of the author. It provides that independently of the author’s
copyright and even after the assignment either wholly or partially of the said copyright, the author of a work
shall have the right: (a) to claim authorship of the work; and (b) to restrain or claim damages in respect of
any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation,
modification or other act would be prejudicial to his honour or reputation.

However,the author shall not have any right to restrain or claim damages in respect of any adaptation of a
computer programme to which clause (aa) of sub-section (1) of section 52 applies.

In Mannu Bhandari vs. Kala Vikas Pictures Ltd., the Court observed that Section 57 was a statutory
recognition of the intellectual property of the author and therefore it should be protected with special care.
The Court observed further that the author should have a right to claim authorship of the work as well as a
right to restrain infringement or to claim damages for the infringement. These rights are available to the
author even after the assignment either wholly or partially of the said copyright. It is clear that Section 57
overrides the terms of the contract of assignment of copyright. Therefore, the contract of assignment must be
consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities, based on the
contract which are inconsistent with the provisions of Section 57.

The issue of author’s exercising his moral rights after the assignment of copyright came for consideration
before Delhi High Court in Amar Nath Sehgal vs. Union of India. The Court made very significant
observations on Section 57 of the Act. The Court observed that the special right has been conferred upon the
author with the sole objective of protecting that honor and reputation which his intellectual work has earned
for him. Therefore, the other person who has acquired ownership in the intellectual work from the author by
paying its price to the author should be restrained from damaging the honor and reputation of the author by
distorting, mutilating or modifying that work. The reason was that such unauthorised distortion, mutilation
and modification vitiated the spirit with which the author had created that work.

D) AUTHORSHIP AND OWNERSHIP (S17), TERM OF COPYRIGHT AND

ASSIGNMENT-LICENSING (SS18-31)
1. Licensing vs. Compulsory licensing. (5)
2. What are the various methods recognised under the Indian Copyright Act, 1957 for the transfer of
copyright. (12.5)
3. Illustration based question on ownership and infringement. (25)
4. Term of copyright. (5)
5. Establish that the concepts of ‘authorship and ownership’ are different in copyright law. (12.5)
OWNERSHIP

I. Ownership in Literary, Dramatic and Musical Works

According to Section 17 of the Act, barring some exceptions, the author of a literary, dramatic or musical
work is the first owner of the copyright in that work. Under the Act, “author” as per Section 2(d) of the Act
means:
 In the case of a literary or dramatic work the author, i.e., the person who creates the work.
 In the case of a musical work, the composer.
 In the case of any literary, dramatic, musical or artistic work which is computer-generated, the person
who causes the work to be created.

Section 2(ffa) defines “composer” to mean the person who composes the music regardless of whether he
records it in any form of graphical notation.

“Work of joint authorship” means a work produced by the collaboration of two or more authors in which the
contribution of one author is not distinct from the contribution of the other author or authors.

In Ramesh Sippy vs. Shaan Ranjeet Uttamsingh, the Court stated that where a partnership firm makes a
film and takes various steps including funding the film, the financial contribution of one partner is not
distinct from the contribution of the other partners. Therefore, the partners of a partnership firm would be
joint authors and as such the owners of the copyright.

In the case of collective or composite works, such as encyclopedias, there will be distinct copyrights namely,
the copyright in the entire work and the copyright in the separate contributions. The person who collects and
arranges the entire work will generally be the author of the work, considered as compilation, whereas the
authors of separate contributions will be the persons who wrote them.

Proviso (a) to the section provides that in the case of a literary, dramatic or artistic work made by the author
in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a
contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the
copyright in the work in so far as the copyright relates to the publication of the work in any newspaper,
magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published,
but in all other respects the author shall be the first owner of the copyright in the work.

Proviso (c) further provides that in the case of a work made in the course of the author’s employment under
a contract of service or apprenticeship, to which clause (a) does not apply, the employer shall, in the absence
of any agreement to the contrary, be the first owner of the copyright therein.

The law distinguishes between ‘contract of service’ and ‘contract for service’. Thus, not every contract
under which one works for another or provides services for another is a contract of service. The existence of
direct control by the employer, the degree of independence on the part of the person who renders services,
and the place where the service is rendered are all matters to be considered in determining whether there is a
contract of service.

II. Ownership of Copyright in Lectures, Addresses, etc.

Proviso (cc) was added in 1983 and provides that in the case of any address or speech delivered in public,
the person who has delivered such address or speech or if such person has delivered such address or speech
on behalf of any other person, such other person shall be the first owner of the copyright therein
notwithstanding that the person who delivers such address or speech, or, as the case may be, the person on
whose behalf such address or speech is delivered, is employed by any other person who arranges such
address or speech or on whose behalf or premises such address or speech is delivered.

III. Ownership in Artistic Work

As per Section 2(d), “author” means:
 in relation to an artistic work other than a photograph, the artist.
 in relation to a photograph, the person taking the photograph.

Proviso (b) to Section 17 provides that in the case of a photograph taken, or a painting or portrait drawn, or
an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such
person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Proviso (c) applies to artistic works as well.

IV. Ownership in Computer Programmes

As per Section 2(d), in the case of any literary, dramatic, musical or artistic work which is computer-
generated, the person who causes the work to be created is the author.

V. Ownership in Cinematograph Films

As per Section 2(d), in the case of a cinematograph film, the producer is the author. Proviso (b) applies to
cinematograph films as well.

VI. Ownership in Sound Recordings

As per Section 2(d), in the case of a sound recording, the producer is the author.

Section 2(uu) defines “producer” to mean a person who takes the initiative and responsibility for making the
work.

Proviso (c) applies as well.

VII. Ownership in Government Work

Proviso (d) to Section 17 provides that in the case of a Government work, Government shall, in the absence
of any agreement to the contrary, be the first owner of the copyright therein.

Section 2(k) defines Government work” to mean a work which is made or published by or under the
direction or control of:
(i) the Government or any department of the Government;
(ii) any Legislature in India;
(iii) any court, tribunal or other judicial authority in India.

VIII. Ownership in the work f Public Undertaking

Proviso (dd) provides that in the case of a work made or first published by or under the direction or control
of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be
the first owner of the copyright therein.
For the purposes of this clause, “public undertaking” means:
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act, 1956;or
(iii) a body corporate established by or under any Central, Provincial or State Act.

IX. Ownership in the work of International Organisation

Proviso (e) provides that in the case of a work to which the provisions of section 41 apply, the international
organization concerned shall be the first owner of the copyright therein.

X. Transmission of Copyright in Manuscript by Testamentary Disposition

Section 20 provides that where under a bequest a person is entitled to the manuscript of a literary, dramatic
or musical work, or to an artistic work, and the work was not published before the death of the testator, the
bequest shall, unless the contrary intention is indicated in the testator’s Will or any codicil thereto, be
construed as including the copyright in the work in so far as the testator was the owner of the copyright
immediately before his death.
TERM OF COPYRIGHT

Copyright in a work does not subsist in perpetuity. The duration of copyright continues until sometime after
the death of the author.

Section 22 provides that copyright shall subsist in any literary, dramatic, musical or artistic work published
within the lifetime of the author until sixty years from the beginning of the calendar year next following the
year in which the author dies.

Section 23(1) provides that in the case of literary, dramatic, musical or artistic work (other than a
photograph), which is published anonymously or pseudonymously, copyright shall subsist until sixty years
from the beginning of the calendar year next following the year in which the work is first published.
However, where the identity of the author is disclosed before the expiry of the said period, copyright shall
subsist until sixty years from the beginning of the calendar year next following the year in which the author
dies.

In India, copyright as per Section 26 subsist in a cinematograph film until sixty years from the beginning of
the calendar year next following the year in which the film is published.

In India, according to Section 27, copyright in a sound recording shall subsist until sixty years from the
beginning of the calendar year next following the year in which the sound recording is published.

A work shall not be deemed to be published or performed in public, if published, or performed in public,
without the licence of the owner of the copyright as provided by Section 4.

Section 24(1) and (2) provides that in the case of a literary, dramatic or musical work or an engraving, in
which copyright subsists at the date of the death of the author or, in the case of any such work of joint
authorship, at or immediately before the date of the death of the author who dies last, but which, or any
adaptation of which, has not been published before that date, copyright shall subsist until sixty years from
the beginning of the calendar year next following the year in which the work is first published or, where an
adaptation of the work is published in any earlier year, from the beginning of the calendar year next
following that year.
A literary, dramatic or musical work or an adaptation of any such work shall be deemed to have been
published, if it has been performed in public or if any sound recording made in respect of the work have
been sold to the public or have been offered for sale to the public.

In the case of a Government work, where Government is the first owner of the copyright therein, copyright
shall subsist until 2[sixty years] from the beginning of the calendar year next following the year in which the
work is first published as provided by Section 28.

Section 28A which was added to the Act in 1983 provides that in the case of a work, where a public
undertaking is the first owner of the copyright therein, copyright shall subsist until sixty years from the
beginning of the calendar year next following the year in which the work is first published.

In the case of a work of an international organisation to which the provisions of section 41 apply, copyright
shall subsist until sixty years from the beginning of the calendar year next following the year in which the
work is first published as has been provided by Section 29.

ASSIGNMENT OF COPYRIGHT

An assignment serves two purposes. As far as assignee is concerned, it confers on him the right of
exploitation of work for a specific period in a specified territory. For the assignor, it confers on him the right
to receive royalty.
Section 18(1) of the Act provides that the owner of the copyright in an existing work or the prospective
owner of the copyright in a future work may assign to any person the copyright either wholly or partially
and either generally or subject to limitations and either for the whole term of the copyright or any part
thereof. However, in the case of the assignment of copyright in any future work, the assignment shall take
effect only when the work comes into existence.

The Amendment Act of 2012 added three provisos to the above-said section. The amendments now provide
that no such assignment shall be applied to any medium or mode of exploitation of the work which did not
exist or was not in commercial use at the time when the assignment was made, unless the assignment
specifically referred to such medium or mode of exploitation of the work.
It is further provided that the author of the literary or musical work included in a cinematograph film shall
not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of
copyright for the utilization of such work in any form other than for the communication to the public of the
work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a
copyright society for collection and distribution and any agreement to contrary shall be void.
It is further provided that the author of the literary or musical work included in the sound recording but not
forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared
on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of
the authors or to a collecting society for collection and distribution and any assignment to the contrary shall
be void.

According to Section 18(2) and (3), where the assignee of a copyright becomes entitled to any right
comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the
rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions
of this Act shall have effect accordingly. The expression “assignee” as respects the assignment of the
copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the
work comes into existence.

In Video Master vs. Nishi Productions, the Bombay High Court considered the issue whether assignment
of video rights would include the right of satellite broadcast as well. The Court agreed with the contentions
of defendant that there were different modes of communication to the public, such as, theatrical, terrestrial
television broadcasting (Doordarshan), satellite broadcasting and video TV. This owner of the film had
separate copyright in all those modes and he could assign it to different persons. Thus, the satellite broadcast
copyright of the film was a separate right of the owner of the film and video copyright assigned to the
plaintiff would mot include this.

Section 19 of the Act lays down the conditions for the assignment of copyright. No assignment of the
copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised
agent. The assignment of copyright in any work shall identify such work, and shall specify the rights
assigned and the duration and territorial extent of such assignment.
The assignment of copyright in any work shall also specify the amount of royalty and any other
consideration payable, to the author or his legal heirs during the currency of the assignment and the
assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the
parties.
Where the assignee does not exercise the rights assigned to him under any of the other sub-sections of this
section within a period of one year from the date of assignment, the assignment in respect of such rights
shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the
assignment.
If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within
India.
Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be
applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.
The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned
to a copyright society in which the author of the work is a member shall be void.
No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of
the work to claim an equal share of royalties and consideration payable in case of utilisation of the work in
any form other than for the communication to the public of the work, along with the cinematograph film in a
cinema hall.
No assignment of the copyright in any work to make a sound recording which does not form part of any
cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and
consideration payable for any utilization of such work in any form.

The Delhi High Court in Chancellor Masters and Scholars of the University of Oxford vs. Orient
Longman Private Limited, held that the negative covenant in the agreement whereby the defendant
undertook not to publish or cause to be published any work on the same subject at or about the price the sale
of which might reasonably be regarded as conflicting or likely to conflict with the sale of copyrighted works,
without the consent in writing of plaintiff in the agreement, can be legally enforced being not in restraint of
trade.

Section 19A provides for the revocation of assignment of copyright. The Appellate Board may, on receipt of
a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such
assignment, if an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is
not attributable to any act or omission of the assignor.
In case of a dispute with respect to the assignment of any copyright, the Appellate Board may, on receipt of
a complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such
order as it may deem fit including an order for the recovery of any royalty payable.
The Appellate Board, however, shall not pass any order under this sub-section to revoke the assignment
unless it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the
author. However, pending the disposal of an application for revocation of assignment under this sub- section,
the Appellate Board may pass such order, as it deems fit regarding implementation of the terms and
conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned.
No order of revocation of assignment under this sub-section, shall be made within a period of five years
from the date of such assignment.
Every complaint received under sub-section (2) shall be dealt with by the Appellate Board as far as possible
and efforts shall be made to pass the final order in the matter within a period of six months from the date of
receipt of the complaint and any delay in compliance of the same, the Appellate Board shall record the
reasons thereof.

Under Section 21 of the Act, the author of a work may relinquish all or any of the rights comprised in the
copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights or by way of
public notice and thereupon such rights shall, subject to the provisions of sub-section (3), cease to exist from
the date of the notice. The relinquishment of all or any of the rights comprised in the copyright in a work
shall not affect any rights subsisting in favour of any person on the date of the notice referred to in sub-
section (1).
The Registrar of Copyrights shall cause the notice to be published in the Official Gazette and in such other
manner as he may deem fit. The Registrar of Copyright shall, within fourteen days from the publication of
the notice in the Official Gazette, post the notice on the official website of the Copyright Office so as to
remain in the public domain for a period of not less than three years.

LICENSES

The license is a personal right which cannot be transferred except in certain circumstances. License is a right
to do some positive act. It is a personal right and creates no more personal obligation between a licenser and
licensee. The license is generally revocable at will of the grantor.

There can be two kinds of licenses: exclusive and non-exclusive. Exclusive license means a license which
confers on licenser or licensee and persons authorised by him to the exclusion of all other persons (including
the owner of the copyright) any right comprised in the copyright in a work. In the case of non-exclusive
license, the owner of copyright retains the right to grant licenses to more than one person or to exercise it
himself.

According to Section 30 of the Act, the owner of the copyright in any existing work or the prospective
owner of the copyright in any future work may grant any interest in the right by licence in writing by him or
by his duly authorised agent, subject however to the condition that in the case of a licence relating to
copyright in any future work, the licence shall take effect only when the work comes into existence. Where a
person to whom a licence relating to copyright in any future work is granted under this section dies before
the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary
in the licence, be entitled to the benefit of the licence.

The provisions of sections 19 shall, with any necessary adaptations and modifications, apply in relation to a
licence under section 30 as they apply in relation to assignment of copyright in a work as provided by
Section 30A.

In Leopold Cafe & Stores vs. Novex Communications Private Limited, the Court agreed with the
contention of defendant that while acting as an agent it would necessarily have to indicate so on its licenses.
Differentiating between Section 30 and 33 (copyrigth societies), the Court stated that Novex had throughout
demanded from various hotels, restaurants, etc., that licenses be obtained from it directly. The Court further
stated that “if Novex is carrying on business and issuing licenses in this manner, then … it is doing so
directly in contravention of the prohibition in Section 33.I do not believe that Novex is entitled to continue
to “carry on the business of issuing or granting licenses” in this manner.”

The terms assignment and license are not interchangeable. An assignment is different from a license.
Generally, in absence of any provision to the contrary in this agreement, the assignee becomes the owner of
the interest assigned, whereas in the case of a license the licensee gets the right to exercise particular rights
only.

In Deshmukh & Co. (Publishers) Pvt. Ltd. vs. Avinash Vishnu Khandekar, the Bombay High Court
made the following distinction between an assignment and a licensee:
“An assignment may be general, i.e., without limitations or an assignment may be subject to limitations. It
may be for the whole term of the copyright or any part thereof. An assignment transfers an interest in, and
deals with the copyright itself as provided under Section 14 of the Act, but license does not convey the
copyright but only grants a right to do something, which in the absence of license would be unlawful. An
assignment transfers title in the copyright, a license merely permits certain things to be done by the licensee.
The assignee being invested with the title in the copyright may reassign. The license is personal, and
therefore, not transferable or assignable without the grantor’s consent. Furthermore, the assignee can sue
for infringement without joining the assignor. The licensee cannot sue in his own name for infringement of
the copyright, since copyright belongs to the licenser.”

COMPULSORY LICENSES

Under the Berne Convention, special provisions have been laid down for the developing countries of the
Union for the grant of compulsory licenses. The Convention provides that legislations in developing
countries of the Union may provide for the grant of non-exclusive and non-transferable licenses for
reproduction of literary and artistic works as well as for their translation.

No license obtainable after three years shall be granted until a further period of six months or nine months
respectively has elapsed from the date on which the applicant establishes either that he has requested and has
been denied, authorization by the owner of he right to make and publish the translation, or that after due
diligence on his part, he was unable to find the owner of the right or where the owner of the right cannot be
found, the applicant for a license shall send, by registered airmail, copies of his application, submitted to the
authority competent to grant the license, to the publisher whose name appears on the work and to any
national or international information center which may have been designated, in a notification to that effect
deposited with the Director General, by the Government of the country in which the publisher is believed to
have his principal place of business.

India, being a developing country and party to the Berne Convention has incorporated provisions in the
Copyright Act, 1957 for the grant of compulsory licenses pursuant to the special provisions laid down in
Berne Convention for the developing countries. The Act provides for the grant of compulsory licenses in
Indian work in the public interest in some limited circumstances.

I. Works withheld from public

Section 31 of the Act provides for the grant of compulsory licenses in work which has been published or
performed in public. It empowers the Appellate Board to direct the Registrar to grant license if a complaint
is made to it in writing under the Act, during the term of copyright stating the necessary facts which are
conditions precedent to the exercise of its power, provided that the owner has been approached in the first
instance for the grant of a license, and it is only if he has refused to republish or allow the republication of
the work, and by reason of such refusal the work is withheld from the public, or if he has refused to allow
communication to the public by broadcast of such work or in the case of a sound recording the work
recorded in such sound recording, on terms which the complainant considers reasonable, that the complaint
could be made.

The Appellate Board must take into consideration the following parameters while deciding application for
compulsory license:
(i) The work in question should have been published or performed in public,
(ii) The owner of the copyright/sound recordings should have refused to republish or allowed republication
or the performance in public of the work by the reasons of which the work is withheld from the public, and
(iii) The owner of copyright has refused to allow communication by a broadcaster of such work on terms
which the Board mus consider reasonable.

The Board may, after giving an opportunity of being heard to the licensee, cancel the licence on any of the
following grounds, namely:
(a) that the licensee has failed to re-publish the work or perform the work in public or communication of the
work to public by broadcast within the time specified in the licence or within the time extended on the
application of the licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact; and
(c ) that the licensee has contravened any of the terms and conditions of the licence.

II. Compulsory license in unpublished or published works

According to Section 31A, where, in the case of any unpublished work or any work published or
communicated to the public and the work is withheld from the public in India, the author is dead or
unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may
apply to the Appellate Board for a licence to publish or communicate to the public such work or a translation
thereof in any language.
Before making an application under sub-section (1), the applicant shall publish his proposal in one issue of a
daily newspaper in the English language having circulation in the major part of the country and where the
application is for the publication of a translation in any language, also in one issue of any daily newspaper in
that language.
Where an application is made to the Appellate Board under this section, it may, after holding such inquiry as
may be prescribed, direct the Registrar of Copyrights to grant to the applicant a licence to publish the work
or a translation thereof in the language mentioned in the application subject to the payment of such royalty
and subject to such other terms and conditions as the Appellate Board may determine, and thereupon the
Registrar of Copyrights shall grant the licence to the applicant in accordance with the direction of the
Appellate Board.

Every such licence shall specify:

(a) the period within which such work shall be published, translated or communicated to the public;
(b) the price at which the copies of such work are to be sold or charges to be collected for communicating
the work to the public;
(c) the amount of royalty to be deposited and the account in which it has to be deposited;
(d) in case of translation of the work, the language in which the translation shall be produced and published;
and
(e) in case of communication to the public of the work the medium in which it is to be communicated to the
public.

The Board may, after giving an opportunity to the licensee of being heard, cancel the licence on any of the
following grounds, namely:
(a) that the licensee has failed to produce and publish such work or communicate to the public the work
within the time specified in the licence or within the time extended on the application of the licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact;
(c) that the licensee has contravened any of the terms and conditions of the licence.

III. Compulsory license for the benefit of disabled persons

As per Section 31B, any person working for the benefit of persons with disability on a profit basis or for
business may apply to the Appellate Board, in such form and manner and accompanied by such fee as may
be prescribed, for a compulsory licence to publish any work in which copyright subsists for the benefit of
such persons, in a case to which clause (zb) of sub-section (1) of section 52 does not apply and the Appellate
Board shall dispose of such application as expeditiously as possible and endeavour shall be made to dispose
of such application within a period of two months from the date of receipt of the application. The Appellate
Board may, on receipt of an application under sub-section (1), inquire, or direct such inquiry as it considers
necessary to establish the credentials of the applicant and satisfy itself that the application has been made in
good faith.

Every such licence shall specify:

(a) the period within which such work shall be published;
(b) the medium and format in which the work shall be produced and published;
(c) the number of copies that shall be produced;
(d) the rate at which royalties in respect of the copies of such work sold to the disabled persons shall be paid
to the owner of the copyright in the work; and
(e) the person to whom such royalties shall be payable.

The Board shall determine the royalties payable to the owner of the copyright. The Board may while
determining royalty shall take into consideration the following:
(a) the proposed price at which a copy of such work shall be made available to disabled persons;
(b) the prevailing standards of royalties in regard to such works taking into consideration;
(c) the cost involved in making the accessible formats for the disabled person; and
(d) such other matters as may be considered relevant by the Copyright Board.

The Board may, after giving an opportunity of being heard to the licensee, cancel the licence on any of the
following grounds, namely:
(a) that the licensee has failed to produce and publish such work within the time specified in the licence or
within the time extended on the application of the licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact;
(c) that the licensee has contravened any of the terms and conditions of the licence;
(d) the owner of the copyright has satisfied the requirement of the disabled person by publishing in the same
format with same or lower price for which compulsory licence was granted.

IV. Statutory license for cover version

Cover version means a sound recording made in accordance with Section 31C. Any person desirous of
making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where
sound recordings of that work have been made by or with the licence or consent of the owner of the right in
the work, may do so subject to the provisions of this section, provided that such sound recordings shall be in
the same medium as the last recording, unless the medium of the last recording is no longer in current
commercial use.

Such notice shall contain the following information, namely:

(a) the particulars of the work in respect of which cover version is to be made;
(b) alterations, if any, which are proposed to be made for the adaptation of the work to the cover version and
the evidence of consent of the author of work, if required, for making such alteration;
(c) the name, address and nationality of the owner of the copyright in the work;
(d) particulars of the sound recording made previously of the work;
(e) the total number of copies of the cover version and the calendar year in which it is proposed to be made;
(f) the medium in which the sound recording was last made and the cover version is proposed to be made;
(g) the price at which the cover version is proposed to be sold; and
(h) the details of the advance payment of royalties paid as determined by the Board in this regard under rule
27.

V. Statutory license for broadcasting of literary and musical works and sound recording
Section 31D enables any broadcasting organisation desirous of communicating to the public by way of a
broadcast or by way of performance of a literary or musical work and sound recording which has already
been published may do so subject to the provisions of this section. The broadcasting organisation shall give
prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration
and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the
manner and at the rate fixed by the Appellate Board.

The notice shall contain the following particulars, namely:

(a) Name of the channel;
(b) Territorial coverage where communication to public by way of radio broadcast, television broadcast or
performance under sub-rule (3) is to be made;
(c) Details necessary to identify the work which is proposed to be communicated to the public by way of
radio broadcast, television broadcast or performance under sub-rule (3);
(d) Year of publication of such work, if any;
(e) Name, address and nationality of the owner of the copyright in such works;
(f) Names of authors and principal performers of such works;
(g) alterations, if any, which are proposed to be made for the communication to the public by way of radio
broadcast, television broadcast or performance of the works, reasons thereof, and the evidence of consent of
the owners of rights, if required, for making such alteration;
(h) Mode of the proposed communication to the public, i.e. radio, television or performance;
(i) Name, if any, of the programme in which the works are to be included;
(j) Details of time slots, duration and period of the programme in which the works are to be included;
(k) Details of the payment of royalties at the rates fixed by the Board; and
(l) Address of the place where the records and books of account are to be maintained for inspection by the
owner of rights.

VI. License to produce and publish translations

Section 32 empowers the Appellate Board to issue a compulsory license to produce and publish a translation
of literary or a dramatic work in any language after a period of 7 years from the first publication of the work.
It provides that after expiry of a period of 7 years from the first publication of a literary or a dramatic work,
any person may apply to the Appellate Board for a license to produce and publish a translation of such work.

There are some more conditions which are to be fulfilled before a license is granted to produce or publish
the translation of the work. These conditions are, that:
(a) a translation of the work in the language mentioned in the application has not been published by the
owner of the copyright in the work or any person authorised by him, within seven years or three years or one
year, as the case may be, of the first publication of the work, or if a translation has been so published, it has
been out of print;
(b) the applicant has proved to the satisfaction of the Appellate Board that he had requested and had been
denied authorisation by the owner of the copyright to produce and publish such translation, or that he was,
after due diligence on his part, unable to find the owner of the copyright;
(c) where the applicant was unable to find the owner of the copyright, he had sent a copy of his request for
such authorisation by registered air mail post to the publisher whose name appears from the work, and in the
case of an application for a licence, not less than two months before such application;
(d) a period of six months in the case of an application relating to a non-Indian work (for translation in a
language in general use in India) and nine months in the case of an application relating to a non-Indian work
(translation in a language not in general use in any developed country), has elapsed from the date of making
the request or where a copy of the request has been sent, from the date of sending of such copy, and the
translation of the work in the language mentioned in the application has not been published by the owner of
the copyright in the work or any person authorised by him within the said period of six months or nine
months, as the case may be;
(e) in the case of translation of a non-Indian work, the name of the author and the title of the particular
edition of the work proposed to be translated are printed on all the copies of the translation and if the work is
composed mainly of illustrations, the provisions of section 32A are also complied. With;
(f) the Appellate Board is satisfied that the applicant is competent to produce and publish a correct
translation of the work and possesses the means to pay to the owner of the copyright the royalties payable to
him under this section;
(g) the author has not withdrawn from circulation copies of the work; and
(h) an opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.

The Board may, after giving the licensee an opportunity of being heard, cancel the licence on any of the
following grounds, namely:
(a) that the licensee has failed to produce and publish the translation within the time specified in the licence
or within the time extended on the application of the licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact; and
(c) that the licensee has contravened any of the terms and conditions of the licence.

VII. Reproduction and publication of works for certain purposes

Section 32A provides that where, after the expiration of the relevant period from the date of the first
publication of an edition of a literary, scientific or artistic work, the copies of such edition are not made
available in India or such copies have not been put on sale in India for a period of six months, to the general
public, or in connection with systematic instructional activities at a price reasonably related to that normally
charged in India for comparable works by the owner of the right of reproduction or by any person authorised
by him in this behalf, any person may apply to the Appellate Board for a licence to reproduce and publish
such work in printed or analogous forms of reproduction at the price at which such edition is sold or at a
lower price for the purposes of systematic instructional activities.

Section 32B of the Act provides for the termination of licenses issued under Sections 32 and 32A. It is
provided that where the Appellate Board has granted a license to any person to produce and publish a
translation of a non-Indian work in any language under Section 32(1A), if at any time after granting the
license the owner of the work or a person authorised by him has published a translation of the work in the
same language which is substantially the same in content at a price reasonably related to the price charged in
India for the translation of works of the same standard on the same or similar subject the license granted will
be terminated.

E) INFRINGEMENT AND REMEDIES (SS50-61)

1. What constitutes infringement of a copyright? What are the remedies available for such
infringement? (12.5)

Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the
copyright, and, therefore, protected by law, and infringement of copyright, or piracy which is a synonymous
term in this connection, consists in the doing by any person, without the consent of the owner of the
copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.
The Copyright Act, under Section 2(m) defines infringing copy” to mean:
(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the
form of a cinematographic film;
(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;
(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any
means;
(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer’s
right subsists under the provisions of this Act, the sound recording or a cinematographic film of such
programme or performance,
if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this
Act.

Under Section 51 of the Act, copyright in a work shall be deemed to be infringed:

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights
under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a
competent authority under this Act:
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright, or
(ii) permits for profit any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and
had no reasonable ground for believing that such communication to the public would be an infringement
of copyright; or
(b) when any person:
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of
the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work.
It is however, not an infringement of copyright to import one copy of any work for the private and domestic
use of the importer.

Acts laid down in Section 51(a) are known as primary acts of infringement, whereas the acts laid down in
Section 51(b) are known as secondary acts of infringement. Section 51 lays down provision for the
infringement of rights of copyright owner, which is different from those of the licensee. It may be possible
that the bundle of the rights of the owner may include the rights of the licensee, but the infringement of the
rights has to be measured from the rights of the owner and not from the limited rights of the licensee.

According to Section 51, infringement takes place when exclusive rights of the copyright owner are
exercised by the infringer without prior permission of the former. The infringer must be deemed to have
knowledge about the copyright owner and such knowledge cannot be attributed unless the provisions of
Chapter X (Registration of Copyright) are complied with.

In Shyam Lal Paharia vs. Gaya Prasad Gupta ‘Rasal’, the Court after referring to several judgments
observed:
“Some of the rules of law that emerge from the principles enunciated in the aforesaid cases may be briefly
summarised:
(1) A compilation which may be derived from a common source falls within the ambit of literary work.
(2) A work of compilation of a nature similar to that of another will not by itself constitute an
infringement of the copyright of another person’s work written on the same pattern.
(3) The question whether an impugned work is a colourable imitation of another person’s work is
always a question of fact and has to be determined from the circumstances in each case.
(4) The determining factor in finding whether another person’s copyright has been infringed to see
whether the impugned work is a slavish imitation and copy of another person’s work or it bears the
impress of author’s own labours and exertions.
Copyright in a work may be infringed by copying that work. Copying can be done in three ways:
I. Direct Copying: Reproduction of the plaintiff’s work by defendant falls under this category. In K.R.
Venugopala Sarma vs. Sangu Ganesan, the Court held that “the degree of resemblance between the two
pictures, which is to be judged by the eye must be such that the person looking at the respondent’s pictures
must get the suggestion that it is the appellant’s picture… one picture can be said to be a copy of another
picture only if a substantial part of the former picture finds place in the reproduction.”
II. Indirect Copying: Indirect copying means copying the work of a person by changing its form. If a novel
is turned into a play, which is in turn converted into a ballet, there may be indirect copying. In J.C.
Bamford Excavators Limited vs. Action Construction Equipment Limited, the Delhi High Court has
held that where the defendants produced their products on the basis of the drawings they reached by way of
reverse engineering of the plaintiff’s products, there was no infringement of copyright in the drawings of the
plaintiffs. In this case, the plaintiffs could not lay their hands on the drawings on the basis of which the
machine of the defendants was manufactured. Apart from that, the photographs have shown that the
components were not exactly the replica of each other.
III. Subconscious Copying: Copying may occur subconsciously where a person reads, sees or hears a work,
forgets about it but then reproduces it, genuinely believing it to be his own.

For an infringement to take place, there need not be an exact reproduction of the plaintiff’s work. Copyright
in a work is infringed by taking a substantial part of it. What is the meaning of ‘substantial’? It is a question
of fact and degree. The word substantial does not denote the bulk or the length of the extracts. The quantity
alone is not the test. It is not only quantity but value that is always looked to. It is useless to refer to
particular cases as to quantity.

In order to prove infringement, the plaintiff must prove that defendant has copied from his work. In other
words, casual connection between the works of plaintiff and defendant is to be proved.

In Penguin Books Ltd. vs. India Book Distributors, the Delhi High Court stated that it is also an
infringement of copyright knowingly to import into India for sale or hire infringing copies of a work without
the consent of the owner of the copyright, though they may have been made by or with the consent of the
owner of the copyright in the place where they were made.

REMEDIES

In case of infringement, the copyright owner is entitled to certain remedies under the Act. Where the several
rights comprising the copyright in any work are owned by different persons, the owner of any such right
shall, to the extent of that right, be entitled to the remedies provided by this Act and may individually
enforce such right by means of any suit, action or other proceeding without making the owner of any other
right a party to such suit, action or proceeding as has been expressed by Section 56 of the Act.

Section 55 of the Act provides for civil remedies in cases of infringement of copyright. The said provision
empowers and authorises owner of a copyright to remedies by way of injunction, damages, accounts or
otherwise as may be conferred, on infringement of a right under the Act in respect of any work.

Section 54 defines “owner of copyright” to include:

(a) an exclusive licensee;
(b) in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher
of the work, until the identity of the author or, in the case of an anonymous work of joint authorship, or a
work of joint authorship published under names all of which are pseudonyms, the identity of any of the
authors, is disclosed publicly by the author and the publisher or is otherwise established to the satisfaction of
the Appellate Board by that author or his legal representatives.

The civil remedies for infringement of copyright are of two kinds:

I. Preventive Civil Remedies:
 1. Interlocutory Injunction: Injunction is the most important remedy against the copyright
infringement. Injunction means a judicial process by which one who is threatening to invade or has
invaded the legal or equitable rights of another is refrained from commencing or continuing such act, or
is commanded to restore matters to the position in which they stood previous to the action.
(i) Ad interim injunction and temporary injunction: The interlocutory injunctions are those
which continue until the hearing of the cases upon the merits, or generally until further order. A
temporary injunction, may as it very often does, consists of two stages, one granted without finally
disposing of the application for injunction to operate immediately till the disposal of the said
application and the other granted while finally disposing of the main application to ensure generally
till the disposal of the suit. While the former is generally called as ad interim injunction, the latter is
generally called temporary injunction.
(ii) Mareva injunction: There is a particular form of interlocutory injunction which is known as
Mareva injunction, the purpose of which is to restrain the defendant from disposing of assets which
may be required to satisfy the plaintiff’s claim or removing them from the jurisdiction of the Court.
Such injunctions are usually sought ex parte.
(iii) Innocent infringement: The proviso to Section 55(1) of the Act provides that if the defendant
proves that at the date of the infringement he was not aware and had no reasonable ground for
believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other
than an injunction in respect of the infringement and a decree for the whole or part of the profits
made by the defendant by the sale of the infringing copies as the court may in the circumstances
deem reasonable.
2. Permanent/Perpetual Injunction: If the plaintiff succeeds at the trial in establishing infringement of
copyright, he will normally be entitled to a permanent injunction to restrain future infringements. This
injunction will operate only during the unexpired term of the copyright. Permanent/perpetual injunction
is granted in accordance with the provisions of Section 38 of the Specific Relief Act, 1963.
3. Anton Piller Orders: In certain cases, the Courts in UK make orders ex parte on the application of
plaintiff after a hearing in camera and in the absence of defendant, ordering the defendant or the
occupier of his premises to permit the plaintiff and his solicitor to inspect the defendant’s premises. The
order enables the plaintiff’s solicitor to take possession of infringing copies and documents and other
relevant materials to require the defendant to keep infringing stock, thus securing or preserving the
evidence. The order is known as ‘Anton Piller Order’ names after one of the first reported cases in
which such an order was made.
4. Ex parte Appointment of a Local Commissioner: In case of infringement of copyright in computer
software, the plaintiff may request the Court for the ex parte appointment of a Local Commissioner for
preserving and protecting the infringing evidence.
5. John Doe Order: The Court has the power to injunct others than those impleaded in the suit, who
may be found violating the rights in the field of trademark/copyright. This is known as John Doe
Order/Ashok Kumar Order. Thus, John Doe order is issued against unknown persons, who have
allegedly committed some wrong, but whose identities cannot be ascertained by the plaintiff. It is
important that the mark/work as the case may be, with respect whereto injunction is issued is identified.
II. Compensatory Civil Remedies: Compensatory civil remedies against the infringement of copyright can
be divided into three parts:
1. Damages: The purpose of an award of damages is to restore the plaintiff to his position before the
infringement. Such damages are therefore compensatory. Copyright infringement is a tort and the
overriding principle in tort law is that damages should be compensatory. In infringement is established,
damages are presumed. Nominal damages are always awarded where a legal right has been infringed
irrespective of the actual damage. The assessment of damages has to be based on cogent evidence
furnished for this purpose. Generally, the damages would be equivalent to the fair fee or royalty which
defendant would have paid had he got the license from the copyright owner.
(i) Compensatory/Actual Damages: The damages actually suffered by the plaintiff because of
infringement of the plaintiff’s intellectual property rights by the defendant.
(ii) Damages to goodwill and reputation: On account of undermining the plaintiff’s reputation and
goodwill in the market as a result of unauthorised counterfeiting by the defendants of the plaintiff’s
product.
 (iii) Exemplary/Punitive Damages: To deter the wrong-doer and the like-minded from indulging
in such unlawful activities.
2. Damages for conversion/delivery up: Section 58 of the Act provides that all infringing copies of
any work in which copyright subsists, and all plates used or intended to be used for the production of
such infringing copies, shall be deemed to be the property of the owner of the copyright, who
accordingly may take proceedings for the recovery of possession thereof or in respect of the conversion
thereof. The remedies of claiming recovery of possession of infringing copies or damages for
conversion thereof are not available in respect of the construction of a building for structure which
infringes or which, if completed, would infringe the copyright in some other work.
3. Account of profits: As a corollary of injunction, equity might require a defendant to account to a
plaintiff for profits made from wrong doing such as the infringement of copyright. Thus, the plaintiff is
entitled to require the defendant to account for the profits made by him by infringing plaintiff’s
copyright. This is not a notional computation as with damages, but an investigation of actual accounts.
The account is of net profits i.e., the sale price of the infringing article as deducted by the manufacturing
and delivery cost.

Delay and laches is a principle of equity which defeats a legitimate claim for the reason the opposite party
who is allowed to carry on business by the plaintiff, having invested its money and labour would have an
equity created in its favour. But where the plaintiff is not passive and is pursuing a remedy before a statutory
authority, the same would have to be taken into consideration when a suit is filed.

Section 61 provides that in every civil suit or other proceeding regarding infringement of copyright
instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be
made a defendant and where such owner is made a defendant, he shall have the right to dispute the claim of
the exclusive licensee. Where any civil suit or other proceeding regarding infringement of copyright
instituted by an exclusive licensee is successful, no fresh suit or other proceeding in respect of the same
cause of action shall lie at the instance of the owner of the copyright.

Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in
any work or the infringement of any other right conferred by this Act shall be instituted in the district court
having jurisdiction as provided by Section 62.

Where, in the case of a literary, dramatic, musical or artistic work, or, subject to the provisions of sub-
section (3) of section 13, a cinematograph film or sound recording, a name purporting to be that of the
author, or the publisher, as the case may be, of that work, appears on copies of the work as published, or, in
the case of an artistic work, appeared on the work when it was made, the person whose name so appears or
appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless
the contrary is proved, to be the author or the publisher of the work, as the case may be.

The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the
discretion of the court.

According to Section 53(1), the owner of any right conferred by this Act in respect of any work or any
performance embodied in such work, or his duly authorised agent, may give notice in writing to the
Commissioner of Customs, or to any other officer authorised in this behalf by the Central Board of Excise
and Customs, that he is the owner of the said right, with proof thereof and that he requests the Commissioner
for a period specified in the notice, which shall not exceed one year, to treat infringing copies of the work as
prohibited goods, and that infringing copies of the work are expected to arrive in India at a time and a place
specified in the notice.

The Commissioner, after scrutiny of the evidence furnished by the owner of the right and on being satisfied
may, subject to the provisions of sub-section (3), treat infringing copies of the work as prohibited goods that
have been imported into India, excluding goods in transit.
The owner of the work deposits such amount as the Commissioner may require as security having regard to
the likely expenses on demurrage, cost of storage and compensation to the importer in case it is found that
the works are not infringing copies.

When any goods treated as prohibited have been detained, the Customs Officer detaining them shall inform
the importer as well as the person who gave notice of the detention of such goods within forty-eight hours of
their detention.

The Customs Officer shall release the goods, and they shall no longer be treated as prohibited goods, if the
person who gave notice does not produce any order from a court having jurisdiction as to the temporary or
permanent disposal of such goods within fourteen days from the date of their detention.

Criminal remedies are proved more effective than civil remedies because the former can be disposed off
quickly. Knowledge or mens rea is an essential ingredient of the offence.

Section 70 provides that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the
first class] shall try any offence under this Act.

Section 63 makes it an offence, for any person who knowingly infringes or abets the infringement of (a) the
copyright in a work, or (b) any other right conferred by this Act except the right conferred by section 53A,
punishable with imprisonment for a term which shall not be less than six months but which may extend to
three years and with fine which shall not be less than fifty thousand rupees but which may extend to two
lakh rupees. However, where the infringement has not been made for gain in the course of trade or business
the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Section 63A further provides that whoever having already been convicted of an offence under section 63 is
again convicted of any such offence shall be punishable for the second and for every subsequent offence,
with imprisonment for a term which shall not be less than one year but which may extend to three years and
with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. However,
where the infringement has not been made for gain in the course of trade or business the court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term
of less than one year or a fine of less than one lakh rupees.

Section 63B makes knowing use on a computer of an infringing copy of a computer programme an offence,
punishable with imprisonment for a term which shall not be less than seven days but which may extend to
three years and with fine which shall not be less than fifty thousand rupees but which may extend to two
lakh rupees. However, where the computer programme has not been used for gain or in the course of trade
or business, the Court may, for adequate and special reasons to be mentioned in the judgment, not impose
any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.

Section 64 of the Act provides that any police officer, not below the rank of a sub- inspector, may, if he is
satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is
being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the
purposes of making infringing copies of the work, wherever found, and all copies and plates so seized shall,
as soon as practicable be produced before a Magistrate. Any person having an interest in any copies of a
work, or plates seized may, within fifteen days of such seizure, make an application to the Magistrate for
such copies, or plates being restored to him and the Magistrate, after hearing the applicant and the
complainant and making such further inquiry as may be necessary, shall make such order on the application
as he may deem fit.

Section 65 provides that any person who knowingly makes, or has in his possession, any plate for the
purpose of making infringing copies of any work in which copyright subsists shall be punishable with
imprisonment which may extend to two years and shall also be liable to fine.
F) EXCEPTIONS: FAIR DEALING
1. Fair dealing as an exception to copyright Infringement. (5) (25)

The copyright law allows people to make some free uses of the copyright material. In India, the list of these
free uses has been laid down in Section 52 of the Act. These exceptions are carefully crafted and are use-
specific as well as work-specific. Each clause of Section 52 makes clear both, the type and class of work to
which it applies, and the particular exempted use of such work.

“Fair dealing” or “fair use” is a doctrine that allows some copying of a copyright work without deeming the
copier an infringer, even though the copyright holder has not authorised the copying.

In United States, reasonable unauthorised use is based upon the user’s judgment on whether he has satisfied
the four factors employed when analyzing fair use. The four factors according to Section 107 of the US
Copyright Act, 1976 are:
(i) The purpose and character of the use, including whether such use is of a commercial nature or is for non-
profit educational purposes,
(ii) The nature of the copyrighted work,
(iii) The amount and the substantiality of the portion used in relation to the copyrighted work as a whole,
and
(iv) The effect of the use upon the potential market for or value of the copyrighted work.

Section 52 provides the list of exempted uses as follows:

(a) a fair dealing with any work, not being a computer programme, for the purposes of private or personal
use, including research, criticism or review, whether of that work or of any other work, and the reporting of
current events and current affairs, including the reporting of a lecture delivered in public.
(b) The storing of any work in any electronic medium for the purposes mentioned in this clause, including
the incidental storage of any computer programme which is not itself an infringing copy for the said
purposes, shall not constitute infringement of copyright.
(c) the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such
computer programme, from such copy in order to utilise the computer programme for the purpose for which
it was supplied, or to make back-up copies purely as a temporary protection against loss, destruction or
damage in order only to utilise the computer programme for the purpose for which it was supplied.
(d) the doing of any act necessary to obtain information essential for operating inter-operability of an
independently created computer programme with other programmes by a lawful possessor of a computer
programme provided that such information is not otherwise readily available.
(e) the observation, study or test of functioning of the computer programme in order to determine the ideas
and principles which underline any elements of the programme while performing such acts necessary for the
functions for which the computer programme was supplied.
(f) the making of copies or adaptation of the computer programme from a personally legally obtained copy
for non-commercial personal use.
(g) the transient or incidental storage of a work or performance purely in the technical process of electronic
transmission or communication to the public.
(h) transient or incidental storage of a work or performance for the purpose of providing electronic links,
access or integration, where such links, access or integration has not been expressly prohibited by the right
holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of
an infringing copy.
(i) if the person responsible for the storage of the copy has received a written complaint from the owner of
copyright in the work, complaining that such transient or incidental storage is an infringement, such person
responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till
he receives an order from the competent court refraining from facilitation access and in case no such order is
received before the expiry of such period of twenty-one days, he may continue to provide the facility of such
access.
(j) the reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a
judicial proceeding.
(k) the reproduction or publication of any work prepared by the Secretariat of a Legislature or, where the
legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the
use of the members of that Legislature.
(l) the reproduction of any work in a certified copy made or supplied in accordance with any law for
the time being in force.
(m) the reading or recitation in public of reasonable extracts from a published literacy or dramatic work.
(n) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for
instructional use, and so described in the title and in any advertisement issued by or on behalf of the
publisher, of short passages from published literary or dramatic works, not themselves published for such
use in which copyright subsists, provided that not more than two such passages from works by the same
author are published by the same publisher during any period of five years.
(o) In the case of a work of joint authorship, references in this clause to passages from works shall include
references to passages from works by any one or more of the authors of those passages or by any one or
more of those authors in collaboration with any other person, the reproduction of any work, by a teacher or a
pupil in the course of instruction, or as part of the question to be answered in an examination, or in answers
to such questions.
(p) the performance, in the course of the activities of an educational institution, of a literary, dramatic or
musical work by the staff and students of the institution, or of a cinematograph film or a sound recording if
the audience is limited to such staff and students, the parents and guadians of the students and persons
connected with the activities of the institution or the communication to such an audience of a cinematograph
film or sound recording.
(q) the causing of a recording to be heard in public by utilising it, in an enclosed room or hall meant for the
common use of residents in any residential premises (not being a hotel or similar commercial establishment)
as part of the amenities provided exclusively or mainly for residents therein, or as part of the activities of a
club or similar organisation which is not established or conducted for profit.
(r) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance
is given to a non-paying audience, or for the benefit of a religious institution.
(s) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political,
social or religious topics, unless the author of such article has expressly reserved to himself the right of such
reproduction.
(t) the storing of a work in any medium by electronic means by a non-commercial public library, for
preservation if the library already possesses a non-digital copy of the work.
(u) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or
plan) by or under the direction of the person in charge of a non-commercial public library for the use of the
library if such book is not available for sale in India.
(v) the reproduction, for the purpose of research or private study or with a view to publication, of an
unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the
public has access, provided that where the identity of the author of any such work or, in the case of a work
of joint authorship, of any of the authors is known to the library, museum or other institution, as the case
may be, the provisions of this clause shall apply only if such reproduction is made at a time more than sixty
years from the date of the death of the author or, in the case of a work of joint authorship, from the death of
the author whose identity is known or, if the identity of more authors than one is known from the death of
such of those authors who dies last.
(w) the reproduction or publication of any matter which has been published in any Official Gazette except
an Act of a Legislature, or any Act of a Legislature subject to the condition that such Act is reproduced or
published together with any commentary thereon or any other original matter, or the report of any committee,
commission, council, board or other like body appointed by the Government if such report has been laid on
the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the
Government, or any judgment or order of a court, tribunal or other judicial authority, unless the reproduction
or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as
the case may be.
(x) the production or publication of a translation in any Indian language of an Act of a Legislature and of
any rules or orders made thereunder if no translation of such Act or rules or orders in that language has been
previously been produced or published by the Government, or where a translation of such Act or rules or
orders in that language has been produced or published by the Government, if the translation is not available
for sale to the public, provided that such translation contains a statement at a prominent place to the effect
that the translation has not been authorised or accepted as authentic by the Government.
(y) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or
the display of a work of architecture.
(z) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic
work falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public
place or any premises to which the public has access.
(aa) the inclusion in a cinematograph film of any artistic work permanently situate in a public place or any
premises to which the public has access, or any other artistic work, if such inclusion is only by way of
background or is otherwise incidental to the principal matters represented in the film, the use by the author
of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould,
cast, sketch, plan, model or study made by him for the purpose of the work, provided that he does not
thereby repeat or imitate the main design of the work.
(bb) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical
drawing, for the purposes of industrial application of any purely functional part of a useful device.
(cc) the reconstruction of a building or structure in accordance with the architectural drawings or plans by
reference to which the building or structure was originally constructed, provided that the original
construction was made with the consent or licence of the owner of the copyright in such drawings and plans.
(dd) in relation to a literary, dramatic, artistic or musical work recorded or reproduced in any cinematograph
film, the exhibition of such film after the expiration of the term of copyright therein, provided that the
provisions of sub-clause (ii) of clause (a), sub-clause (i) of clause (b) and clauses (d), (f), (g), (m) and (p)
shall not apply as respects any act unless that act is accompanied by an acknowledgment identifying the
work by its title or other description, and unless the work is anonymous or the author of the work has
previously agreed or required that no acknowledgment of his name should be made, also identifying the
author.
(ee) the making of an ephemeral recording, by a broadcasting organisation using its own facilities for its
own broadcast by a broadcasting organisation of a work which it has the right to broadcast; and the retention
of such recording for archival purposes on the ground of its exceptional documentary character.
(ff) the performance of a literary, dramatic or musical work or the communication to the public of such work
or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by
the Central Government or the State Government or any local authority.
(gg) the adaptation, reproduction, issue of copies or communication to the public of any work in any
accessible format, by any person to facilitate persons with disability to access to works including sharing
with any person with disability of such accessible format for private or personal use, educational purpose or
research, or any organisation working for the benefit of the persons with disabilities in case the normal
format prevents the enjoyment of such works by such persons, provided that the copies of the works in such
accessible format are made available to the persons with disabilities on a non-profit basis but to recover only
the cost of production, also provided that the organisation shall ensure that the copies of works in such
accessible format are used only by persons with disabilities and takes reasonable steps to prevent its entry
into ordinary channels of business.
(hh) the importation of copies of any literary or artistic work, such as labels, company logos or promotional
or explanatory material, that is purely incidental to other goods or products being imported lawfully.

The provisions shall apply to the doing of any act in relation to the translation of a literary, dramatic or
musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to
the work itself.

In Blackwood and Sons Ltds. vs. A.N. Parasuraman, the Madras High Court stated that a dealing with a
work for private study is such a dealing that does not involve any publication. As stated by Copinger
“private study only covers the case of a student copying out a book for his own use, but not the circulation of
copies among other students.” The Court held that the defendants’ guide could not be said to be works of
research.

Relating to the use of copyright material in the course of education, the Delhi High Court in Syndicate of
Press of University of Cambridge vs. Kasturi Lal & Sons, held that:
“It is noteworthy that this exception would be applicable only when material from the original is reproduced
as a part of the questions to be answered in an examination or in answers to such questions. This exception
would not be applicable because the reproduction is not made as a part of the questions and answers, rather
the complete set of questions and answer keys is copied from the original work.”

G) INTERNATIONAL COPYRIGHT ORDER (SS40-41)

Section 40 of the Act provides that the Central Government may, by order published in the Official Gazette,
direct that all or any provisions of this Act shall apply:
(a) to works first published in any territory outside India to which the order relates in like manner as if they
were first published within India,
(b) to unpublished works, or any class thereof, the authors whereof were at the time of the making of the
work, subjects or citizens of a foreign country to which the order relates, in like manner as if the authors
were citizens of India,
(c) in respect of domicile in any territory outside India to which the order relates in like manner as if such
domicile were in India,
(d) to any work of which the author was at the date of the first publication thereof, or, in a case where the
author was dead at that date, was at the time of his death, a subject or citizen of a foreign country to which
the order relates in like manner as if the author was a citizen of India at that date or time, and thereupon,
subject to the provisions of this Chapter and of the order, this Act shall apply accordingly.
Provided however that:
(i) before making an order under this section in respect of any foreign country (other than a country with
which India has entered into a treaty or which is a party to a convention relating to copyright to which India
is also a party), the Central Government shall be satisfied that the foreign country has made, or has
undertaken to make, such provisions, if any, as it appears to the Central Government expedient to require for
the protection in that country of works entitled to copyright under the provisions of this Act,
(ii) the order may provide that the provisions of this Act shall apply either generally or in relation to such
classes of works or such classes of cases as may be specified in the order,
(iii) the order may provide that the term of copyright in India shall not exceed that conferred by the law of
the country to which the order relates but such a term or copyright shall not exceed the term of copyright
provided under this Act,
(iv) the order may provide that the enjoyment of the rights conferred by this Act shall be subject to the
accomplishment of such conditions and formalities, if any, as may be prescribed by the order,
(v) in applying the provisions of this Act as to ownership of copyright, the order may make such exceptions
and modifications as appear necessary, having regard to the law of the foreign country,
(vi) the order may provide that this Act or any part thereof shall not apply to works made before the
commencement of the order or that this Act or any part thereof shall not apply to works first published
before the commencement of the order.

In exercise of the power conferred by section 40 of the Act, the International Copyright Order, 1999 was
published in the Gazette of India dated 6th April, 1999.

In Microsoft Corporation vs. K. Mayuri, the Delhi High Court stated that the rights of authors of member
countries of the Berne and Universal Copyright Convention are protected under the Indian Copyright law.
India and USA are signatories to both the Universal Copyright Convention as well as the Berne Convention.
The plaintiff’s works are created by authors of member countries and originate from and are first published
in the said member countries. The plaintiff’s works are, thus, protected in India under Section 40 of the
Copyright Act, 1957 read with the International Copyright Order, 1999.

Section 40A provides that if the Central Government is satisfied that a foreign country (other than a country
with which India has entered into a treaty or which is a party to a convention relating to rights of
broadcasting organisations and performers to which India is also a party) has made or has undertaken to
make such provisions, if any, as it appears to the Central Government expedient to require, for the protection
in that foreign country, of the rights of broadcasting organizations and performers as is available under this
Act, it may, by order published in the Official Gazette, direct that the provisions of Chapter VIII shall apply:
(a) to broadcasting organisation whose headquarters is situated in a country to which the order relates or, the
broadcast was transmitted from a transmitter situated in a country to which the order relates as if the
headquarters of such organisation were situated in India or such broadcast were made from India,
(b) to performances that took place outside India to which the order relates in like manner as if they took
place in India,
(c) to performances that are incorporated in a sound recording published in a country to which the order
relates as if it were published in India,
(d) to performances not fixed on a sound recording broadcast by a broadcasting organisation the
headquarters of which is located in a country to which the order relates or where the broadcast is transmitted
from a transmitter which is situated in a country to which the order relates as if the headquarters of suc h
organisation were situated in India or such broadcast were made from India.
The aforesaid order may also provide following conditions:
(i) the provisions of Chapter VIII, shall apply either generally or in relation to such class or classes of
broadcasts or performances or such other class or classes of cases as may be specified in the Order,
(ii) the term of the rights of broadcasting organisations and performers in India shall not exceed such term as
is conferred by the law of the country to which the order relates provided that it does not exceed the period
provided under this Act,
(iii) the enjoyment of the rights conferred by Chapter VIII shall be subject to the accomplishment of such
conditions and formalities, if any, as may be specified in that order,
(iv) Chapter VIII or any part thereof shall not apply to broadcast and performances made before the
commencement of the order or that Chapter VIII or any part thereof shall not apply to broadcasts and
performances broadcast or performed before the commencement of the order,
(v) in case of ownership of rights of broadcasting organisations and performers, the provisions of Chapter
VIII shall apply with such exceptions and modifications as the Central Government may, having regard to
the law of the foreign country, consider necessary.

Provisions laid down in Sections 40 and 40A are based upon the principle of reciprocity. The protection
available to foreign work under Copyright Act, 1957 is subject to the provisions of Section 32 which
provides for the grant of compulsory license to produce and publish translations of the work.

Section 41 applies to those organisations, of which two or more sovereign powers or government(s) are
members, which the Central Government may declare by order to be organisations to which it is expedient
that this section shall apply.
Copyright in the work subsists in India by virtue of the Section, where (a) any work is made or first
published by or under the direction or control of any organisation to which this section applies, and (b) there
would, apart from this section, be no copyright in the work in India at the time of the making or, as the case
may be, of the first publication thereof, and (c) either (i) the work is published as aforesaid in pursuance of
an agreement in that behalf with the author, being an agreement which does not reserve to the author the
copyright, if any, in the work, or (ii) under section 17 any copyright in the work would belong to the
organisation.
Any organisation to which this section applies which at the material time had not the legal capacity of a
body corporate shall have and be deemed at all material times to have had the legal capacity of a body
corporate for the purpose of holding, dealing with, and enforcing copyright and in connection with all legal
proceedings relating to copyright.

H) ISSUES IN DIGITAL COPYRIGHTS

1. The advancement of digital technology has brought with it the biggest threat to the copyright.
Discuss this statement in relation to issues related to Digital Copyright. (12.5)

Internet is one of the most important developments made by the man till date. It is a global network of
interconnected computers and computer networks. With its unprecedented ability to provide an easy,
relatively inexpensive and flawless means to create and distribute copyright material to a large number of
people throughout the world, it has provided enormous opportunities to the copyright owners to exploit their
works. At the same time, however, it has also threatened the rights of the copyright owners in the digital
environment.
Copyright owners perceive Internet as threat to their exclusive rights due to the following reasons:
(i) Wide distribution is relatively simpler and quicker on the Internet,
(ii) Anyone can distribute to a mass audience,
(iii) The quality of copies is virtually indistinguishable from the original,
(iv) Distribution is almost countless,
(v) Users can easily and cheaply obtain some copyright material on the Internet.

In a tangible medium, it is easy to determine whether a “copy” of a protected work has been made, or
whether infringement of any of the exclusive rights of the copyright owner has occurred. However, in the
digital environment, it is a debatable issue whether data transmitted through the various modes of the
networks comprising the World Wide Web (www) is “copied” for the purposes of copyright law.

The copyright infringement in cyberspace may be categorised as follows:

(i) Posting or uploading of materials on the website
Copyright in a work infringed where the copyright material is uploaded on one’s website without the prior
permission of the copyright owner. The Courts have arrived at different conclusions on the basis of the facts
and circumstances of the individual cases. For example, in Playboy Enterprises, Inc. vs. Frena, the US
District Court has found liability where a person merely created and managed a Bulletin Board Service
(BBS) on to which infringing materials were posted by others without the knowledge of the BBS operator.
The Court observed that there was irrefutable evidence of direct copyright infringement. It did not matter
that defendant was unaware of the copyright infringement. Intent to infringe was not needed to find
copyright infringement.
In Religious Technology Center vs. Netcom On-line Communication Services Inc., however, the Court
required something more than mere creations of the forum in order to impose liability. In this case, a
Netcom subscriber posted some copyright material of Religious Technology Center on the bulletin board
without its permission. The Religious Technology Center filed a suit against the Netcom, an Internet Service
Provider (ISP), BBS Operator and the Netcom subscriber for the alleged infringement of its copyright. The
Court did not held the Netcom and the BBS Operator liable for the infringement of copyright as neither of
them had performed any affirmative conduct except for providing access to the Internet and thereby to the
newsgroups on the BBS. The Court also observed that direct copyright infringement needed the presence of
some element of volition or causation and that condition did not exist in that case as Netcom was merely
creating, storing and transmitting copies of materials posted by third parties. The Netcom was not held liable
even for its subscriber’s conduct as it was receiving only a fixed fee and not a share of subscriber’s profits.
(ii) Linking
Linking allows the users to move from site to site. Linking provides the user, access to a page or site through
the original site, without typing Universal Resource Locator (URL) in another browser. There may be two
types of linking:
(a) Surface linking, where the user may access the home page of another site through a link of that site
provided in the original site which has been visited by the user.
(b) Deep linking, where the user may access the inner pages of another site through links provided on
original site which has been visited by the user, without accessing the home page of another site.
(iii) Framing
Framing allows one website to incorporate the contents from another website into a window or frame on its
own in a manner wherein the framing site appears as the original website.
(iv) Caching
Cache is a place where something is stored temporarily. Computers include caches at several levels of
operation, including cache memory and a disk cache. Caching is an activity in which a copy of the material
from an original source is stored in cache for later use, when the same material is requested again. There are
three types of caching:
(a) The first type of caching involves the copying of document that is currently displayed on the screen
of the personal computer while the user is browsing the web.
(b) The second type is where a personal computer not only makes a copy of the documents that are
currently being displayed, but also temporarily retains copies of documents which are reviewed by the
 user in the past. When the computer receives a request for the documents, which were previously
viewed, it will bring up the cached copy rather than retrieve the documents from the Internet.
(c) In the third type of caching, instead of storing the materials on the personal computer, the documents
are stored by an ISP or by the operator on the website.
(v) Archiving
Archiving is the process of downloading and storing the materials of one website in another so that the
second website can provide its users with the materials of the first website without having to hyperlink to the
former to retrieve the materials. When the user clicks on the hyperlinks, instead of going to that website, the
user will be taken to another area of the same website, where the materials are stored. This may result into
copyright infringement as the copyright material of one website is stored by the owner of another website in
his website without the prior permission of the owner of the former website.
(vi) File sharing
The peer-to-peer (P2P) software allows computers connected to a network to communicate both ways with
other computers on the network without those communications necessarily being routed through a central
server.

The defence of fair use is available to the user while making use of the copyright material available in the
traditional form. However, whether fair use defence should be available on the Internet has widely been
debated. It has been argued that a user, perhaps mistakenly relying on fair use, has a potential to distribute a
work to thousands of other users in cyberspace without diminishing the quality of the copy.

In Seven Network Ltd. vs. News Interactive Pty. Ltd., Fox News displayed on its website the Olympic
Medal Tally along with the latest developments of the Olympics held in Sydney. The plaintiff sued Fox
News alleging that since they were the official sponsors of the Olympics, Fox News did not have the right to
launch this. The Court observed that there was no misrepresentation that Fox News had any connection with
the Olympic. It merely amounted to a news item which was completely protected by the fair use defence.

ADDITIONAL QUESTIONS

I) PERFORMER’S RIGHTS (12.5)

The rights of performers, record producers and broadcasting organisations are referred to as neighbouring
rights because they have developed in parallel with copyright, and the exercise of these rights is very often
linked with the exercise of copyright.

Section 38 specifically provides that where any performer appears or engages in any performance, he shall
have a special right to be known as the “performer’s right” in relation to such performance. The performer’s
right shall subsist until fifty years from the beginning of the calendar year next following the year in which
the performance is made.

Section 38A was inserted by the 2012 Amendment Act and provides exclusive rights to performers. These
rights are similar to the economic rights of the author as are available to them under Section 14 of the Act.
Without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right
subject to the provisions of this Act to do or authorise for doing any of the following acts in respect of the
performance or any substantial part thereof, namely:
(a) to make a sound recording or a visual recording of the performance, including:
(i) reproduction of it in any material form including the storing of it in any medium by electronic or any
other means,
(ii) issuance of copies of it to the public not being copies already in circulation,
(iii) communication of it to the public,
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the
recording.
(b) to broadcast or communicate the performance to the public except where the performance is already
broadcast.
Once a performer has, by written agreement, consented to the incorporation of his performance in a
cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by
the producer of the film of the performer’s right in the same film.
Provided that the performer shall be entitled for royalties in case of making of the performances for
commercial use.

Section 38B provides two moral rights to the performer of a performance. The performer of a performance
shall, independently of his right after assignment, either wholly or partially of his right, have the right (a) to
claim to be identified as the performer of his performance except where omission is dictated by the manner
of the use of the performance and (b) to restrain or claim damage in respect of any distortion, mutilation or
other modification of his performance that would be prejudicial to his reputation.

There are certain exceptions under Section 39 to these rights available to the performers. No performer's
right shall be deemed to be infringed by:
(a) the making of any sound recording or visual recording for the private use of the person making such
recording, or solely for purposes of bona fide teaching or research; or
(b) the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of
current events or for bona fide review, teaching or research; or
(c) such other acts, with any necessary adaptations and modifications, which do not constitute infringement
of copyright under section 52.

Section 39A makes certain provisions applicable to the performer’s rights. The text of the section provides
that sections 18, 19, 30, 30A, 33, 33A, 34, 35, 36, 53, 55, 58, 63, 64, 65, 65A, 65B and 66 shall, with
necessary adaptations and modifications, apply in relation to the performer's right in any performance as
they apply in relation to copyright in a work. However, where copyright or performer’s right subsists in
respect of any work or performance that has been broadcast, no licence to reproduce such broadcast, shall be
given without the consent of the owner of right or performer, as the case may be, or both of them. The
performer’s right shall not subsist in any performance if that performance is an infringement of the copyright
in any work. The performer’s right shall not affect the separate copyright in any work in respect of which,
the broadcast or the performance, as the case may be, is made.

The Delhi High Court in Star India Pvt. Ltd. vs. Piyush Agarwal, stated that when a cricket match was
played, there were various dramatic personae in the performance. So far as the visual recording was
concerned, the cricket players were the performers who played out the match. The umpires were also an
integral part of the live performance, and they could also be said to be performers in the match. Apart from
the players and umpires, the commentators who gave commentary, whether for the television or radio or any
other medium of broadcast were also performers. Thus, a cricket match very well fell within the definition
of “performance”.