Copyright

The Indian CopyrightAct,1957 governs the system of copyrights in

India. [Amended in 1982, 1984, 1992, 1994 & 1999]

Meaning : It is a right which Grants protection to the unique

expression of Ideas.
o The term original in the copyright law means that the work originated
with the author

o There is no requirement for novelty or uniqueness as there is in

patent law

o Copyright law protects the expression of an idea. Not the idea itself
 Extra slide

Member countries as of Sept 2014

Albania
Ecuador Egypt Latvia Lebanon Lesotho Russian Federation Rwanda
Algeria Andorra
El Salvador Equatorial Liberia Saint Kitts and Nevis Saint Lucia
Antigua and Barbuda
Guinea Estonia Libyan Arab Jamahiriya Saint Vincent and Grenadines
Argentina
Fiji Finland France Liechtenstein Samoa
Armenia Australia Austria
Gabon Gambia Lithuania Luxembourg Saudi Arabia Senegal
Azerbaijan Bahamas
Georgia Germany Macedonia Madagascar Serbia and Montenegro Singapore
Bahrain Bangladesh
Ghana Greece Malawi Malaysia Mali Slovakia Slovenia South Africa
Barbados Belarus Belgium
Grenada Guatemala Malta Spain
Belize Benin
Guinea Mauritania Mauritius Sri Lanka Sudan Suriname
Bhutan Bolivia
Guinea-Bissau Guyana Mexico Micronesia Swaziland Sweden Switzerland
Bosnia and Herzegovina
Haiti Holy See Moldova Monaco Syrian Arab Republic Tajikistan
Botswana
Honduras Mongolia Morocco Tanzania, United Republic of
Brazil Brunei Bulgaria
Hungary Iceland India Namibia Nepal Thailand
Burkina Faso Cameroon
Indonesia Ireland Netherlands New Zealand Theformer Yugoslav Togo
Canada Cape Verde
Israel Italy Jamaica Nicaragua Niger Tonga
Central African Republic
Japan Jordan Nigeria Norway Oman Trinidad and Tobago Tunisia
Chad
Kazakhstan Pakistan Panama Turkey Ukraine
Chile China Colombia
Kenya Korea Paraguay Peru Philippines United Arab Emirates United
Comoros Congo CostaRica
Kyrgyzstan Djibouti Poland Portugal Qatar Kingdom
Coted Ivoire Croatia
Dominica Romania United States of America Uruguay
Cuba Cyprus
Dominican Republic Uzbekistan Venezuela Vietnam
Czech Republic
Denmark Zambia Zimbabwe
 Key Features of Berne Convention
• Inclusions of ‘Literary and Artistic works’
1. Books, pamphlets, writings, lectures, addresses, sermons in scientific or artistic domain

2. Dramatic, musical, choreographic works

3. Musical compositions, with or without words

4. Works of drawing, painting, architecture, sculpture, engraving and lithography;

photographic works

5. Works of applied art: illustrations, maps, plans, sketches, 3D works of geography,

topography, architecture
Reasons For The Adoption Of The Universal Copyright Convention (UCC)

• Developments in Latin America (mid 1940’s) feel need for another multilateral treaty on
author’s rights inspite of latest revision of Berne Convention in 1948.

• Copyright in 1st half of 20th century were not universal but split between major countries.

• Berne Convention centered around Europe & most American countries were not
members of the Berne Convention because of high level of minimum standards.

• USA had additional obstacle in their national copyright system:

- US law required fulfilment of formalities for enjoyment of copyright protection
- Duration was 28 years.
Subject matter of copyright: In general
(a)Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine or device.

(1) literary works;

(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery, regardless of form in which it is described,
explained, illustrated, or embodied in such work
Literary Films Dramatic

Musical Artistic Sound Recording

 What is not covered by copyright?
Ideas
Facts
Recipes
Works lacking originality (e.g. The phone book)
Names, titles or short phrases
Copyright lasts for the-

o Author's lifetime + 60 years from the end of the calendar year in which the author dies

o 60 years for films and sound recordings

o 25 years for typographical arrangements of a published edition & Broadcast Reproduction

o Copyright protection always expires on December 31 of last calendar year of protection

 Subject matter of Copyright
Section 13 of Copyright Act 1957: subjected for following works: Original Musical work, Original Literary
Work, Original Dramatic work, Cinematography films, Original Artistic work and Sound recordings.

1. Original Musical work

• “Work consisting of music & includes any graphical notation of such work

• Song typically contains both literary & musical work (Tune and lyrics together forms song; may be 2 people)

• Lyric of a song (protected as a literary work; writer of lyrics)

• Music accompanying lyrics (Musical work; composer of work)

2. Original literary work

• Works that are in writing

• Act does not classify literary work, but work that are captured in writing

• Includes computer programmes, tables, compilations including computer databases

• Court do not decide literary merit

• Number of words not an indicator of quality

• Author: who makes work or who creates work

• Not protected:
• Phrases, names, invented words & slogans e.g. “Yeh Dill Mange more” by Pepsi not protected

• Names used in commerce or in trade protected by trademarks

• Secondary or derivative works can also be protected if:

- work involves right kind of labor that effort brings a material change in existing work

- Prior work should be different from secondary work

- Author assigns copyright to another person, new work entitled to copyright

- Adaptations & abridgment of existing works can have copyright; translations also entitled to a copyright

- Compilations & collective works can have copyrights

- A copyright can exist in individual item as well as in collection as a whole

- Computer programs: source code can be protected as a literary work.

3. Original dramatic work

• “Including any piece of 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”

• Terms literary & dramatic used together & principle applicable to literary work will be applicable to dramatic
work as well

• Author of a dramatic work is person who authors work

Cinematography films –
• Visual recording & includes a sound recording

• Author of cinematography films is the producer of films

4. Original artistic work
• Painting, a sculpture, a drawing e.g. diagram, map, chart or plan, an engraving or a photograph, & whether
or not any such work possesses artistic quality

• A work of architecture is included as an artistic work & any work of artistic craftsmanship

• Author of an artistic work is artist of artistic work other than photograph

• Photographer is regarded as author (Selfie taken by a monkey: Court held that, person has to be human being
& so far) IPR have only covered Intellectual work of humans

Sound recordings
• Recording of sound from which such sounds may be produced regardless of medium on which such
recording is made or method by which sounds are produced

• Producer of sound recording is author (Sound recording may involve musicians, it may involve singers)

• Protection: life of author & 60 yrs after death in Literary, musical, dramatic & artistic work
• Posthumous work (published after death of author): protected for 60 yrs from 1st time published

• 60 yrs protection timeline for Cinematograph films sound recording, government works, works of
international organizations

• Ownership in copyright may vest in different persons under different circumstances

• Employer owns copyright: if work is created by an employee in course of employment for same work
 Process for Registering Copyright

• Obtaining copyright certificate complex & workflow in India usually classified into 3 stages which are:
Filing
Examination
Registration Filing includes

Filling require
1. Application for registration is to be made on as prescribed in 1st schedule to Rules;

2. Separate applications should be made for registration of each work;

3. Each application should be accompanied by requisite fee prescribed in 2nd schedule to Rules

4. Applications should be signed by applicant or advocate or Power of Attorney

• After filing application you receive a diary number

• Mandatory wait period of 30 days for objections & 30 days to respond

• Both published and unpublished works can be registered

• Copyright in works published before 21st January 1958 (Before Act came in force) can be registered

• 3 copies of work may sent along with application

• If unpublished, 1 copy of manuscript sent along with application for affixing stamp

• In 2 copies of manuscript are sent, 1 copy of same duly stamped will be returned, other retained for record
• Applicant can send only extracts from unpublished work instead of whole manuscript & ask for return of
extracts after being stamped with seal of Copyright Office

• Changes: apply for changes in particulars (Once registered as unpublished & subsequently it is published)
entered in Form V with prescribed fee

• All kinds of literary (include Computer Software or program, tables, compilations, computer databases),
artistic, website

• Computer programs: ‘Source Code’ has also to be supplied along with software products

• Ensure significant rights to owner & prevents undue proliferation of products or works
How to protect your work using Copyright ?
• By registering your copyright work, you create a public record of your work & a concrete proof

• Proof of fee paid: 2 copies of work DD/ online payment (only if registering online)

• Power of attorney: filed through attorney

• If artistic work: require a search certificate from trademark office

• Computer software: need to possess source code & object code of the work are also required

• NOC from legal heirs (author deceased: or publisher (work published by publisher) or author
 Assignment of Copyright (Section 18)
• Owner of copyright has right to assign his copyright to any other person

• Assignee becomes entitled to all the rights related to the copyright to the assigned work

• Mere grant of right to publish & sell copyrighted work amounts to publishing right & not assignment of
copyright

• Assignor shall treated as owner of copyright with respect to unassigned rights

• Legal representatives of assignee entitled to benefits of assignment, if assignee dies before work comes into
existence

• Case study
• In Video Master v. Nishi Production, the Bombay High Court: there were different modes of
communication to public e.g. terrestrial television (Doordarshan), satellite & video TV

• Owner of film had separate copyright in all those modes, & he could assign it to different persons
• monitoring activities of habitual infringers

• making independent contractors & employees subject to confidentiality

• having proper licensing agreements incorporating a proper control mechanism

• publicizing a successful infringement trial (if resources allow)

 License types
1. Voluntary license (Section 30 Indian Copyright Act)

• By owner of existing copyright in in writing

• By owner of future work in writing (Come in force only when work comes into existence)

2. Compulsory license (Section 31) (Exclusive right without prior permission of owner of copyright):
• Licensing of copyrighted work which is withheld from public

• In case a copyright owner has refused to:

- Republish or allow for republication of work or refuse to allow performance of work
- Allow communication of work to public by way of a broadcast of such work, or sound recording work
recorded on terms which complainant considers reasonable
 Licenses can be exclusive and non-exclusive
• Exclusive license: confers on licensee or licensee & person authorized by him to exclusion of all other
persons (including the owner of copyright), any right comprised in copyright in work [Sec 2(j)].

• Non-exclusive license: owner of copyright not deprived of his right to grant a license to persons other than
licensee. May use the copyright himself as well.

• Time period: indefinite or limited to a definite (Literary or some other work publisher cannot be restrained
from selling unsold copies published in license period after expiry of that period (Subject to any agreement to
the contrary)

• Implied license: circumstances or by a course of conduct e.g. person sends a letter to editor of newspaper or
magazine, then it is implied that the editor has the right to publish it as well. This might be subject to any
royalty payment
 Validity of a license
• If licensee does not exercise right granted to him in license deed within 1 year, then license with respect to
such right will be deemed to be lapsed after expiry of 1 year unless specified in license deed

• If period of license not mentioned in deed, then it will be deemed to be for 5 years.

• In case of any dispute between licensor & licensee, aggrieved party can file a complaint with Copyright
Board, which will hold an inquiry and pass suitable orders which may include an order for any royalty
payable

• Revocation of license: not before 5 years unless terms of agreement too harsh for licensor & where
licensor is also author

• May have more than 1 owner: if issued license without consent of other owners/co-owners then co-owner
can sue that joint owner & licensee

• Consideration forms an important part of granting a license for copyright

• If there is not a consideration, then license is revocable, however, if there is some consideration then it is
irrevocable as interest is created in copyright
 Fair Use
Gives permission to use copyrighted materials if certain criteria are met

Protects freedom of speech

Promotes public benefits like education.

 Beware the “Fair use excuse”
• Never assume that your use falls
under the fair-use exception!

• “Saving money” is not a sufficient

excuse

• Laziness can be a trap!

 How much can I use ?
Photos and images - up to 5 works from one author; up to 10%
or 15 works, whichever is less, from a collection

Database information - up to 10% or 2500 fields or cell entries,

whichever is less
Factors Determining Infringement
Copying
Causal Connection
Subconscious Copying
Indirect Copying

Substantial Taking
Unaltered copying
Extent of defendant’s alteration
Character of Plaintiff’s and Defendant’s works
Nature and Extent of Plaintiff’s Effort
 General Principles
1. No copyright in an idea: Violation of copyright confined to
expression of idea by the author

2. Where same idea developed in different manner, similarities

happen. Court to rule on whether similarities merely
substantial or fundamental
 General Principles (2)
• Safest Test: Does reader/ spectator/viewer have opinion/get unshakeable
impression that 2nd work is a copy of original? (“the viewer test”)

• Same theme, different presentation →Completely new work, no infringement

 General Principles (3)
• Where there are only incidental similarities: no copyright
infringement

• Copyright infringement = piracy (must be clearly proven)

• Very difficult to prove violation of copyright of stage play by a

film producer: the “viewer test” is applicab
 INFRINGEMENT OF COPYRIGHT

When copyright infringed:

(a) when any person, without a license granted by owner of copyright or the Registrar of Copyrights under
this Act or in contravention of conditions of a license so granted or of any condition imposed by a
competent authority under this Act—

(i) does anything, exclusive right of owner breached

(ii) permits for profit any place to be used for communication of work to public leading to infringement

(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 for trade or extensively affect owner of the copyright
iii. by way of trade exhibits in public, or
iv. imports into India
Any infringing copies of the work:
• Nothing in sub-clause (iv) shall apply to import of 1 copy of any work for the private & domestic use of
importer

• Reproduction of a literary, dramatic, musical or artistic work in form of a cinematograph film shall be deemed
to be an “infringing copy”

• If creator sold entire copyright, purchasing business or person becomes copyright owner

• If work is created by an independent contractor & independent contractor signs a written agreement stating
that the work shall be “made for hire,” commission person
• Organization owns copyright as work for hire if work is a part of larger literary work:
i. an article in a magazine or a poem or story in anthology;
ii. Part of a motion picture or other audiovisual work, such as screenplay
iii. Translation
iv. Supplementary work (afterword, introduction, chart, editorial note, bibliography, appendix or index)
v. a compilation;
vi. an instructional text;
vii. a test or answer material for a test;
viii. or an atlas.

• Works that do not fall within one of these 8 classifications constitute works made for hire only if created by
an employee within scope of his or her employment

Case study: Godrej Soaps (P) Ltd v/s Dora Cosmetics Co.[4]
• Delhi High Court held that where the carton was designed for valuable consideration by a person in the
course of his employment for & on behalf of the plaintiff (assignee & legal owner of copyright in carton
including logo) & defendant had led no evidence in his favor
 Attorneys’ fees and costs
Can attorneys’ fees & costs be claimed in an action for copyright infringement?

• Yes. Litigation costs are standard request in infringement suits, but decision at discretion of court

• Costs awarded seldom cover actual legal expenses

• Commercial Courts Act 2015

- 4th amendments in Code of Civil Procedure & specifically provides for payments of cost
- Lays down guidelines when costs to be paid & method of calculation of costs
Limitation period for filing suit for damages: 3 years from infringement

Remedies for
Copyright
Infringement

Civil Criminal Administrative

•More rigorous scrutiny

•A temporary or permanent bans on
engaging in commercial activities
 Civil Remedies

Injunction Damages Accounts Costs

 Civil Remedies (2)
Injunction
• Only effective remedy

• Court has to weigh damage to the plaintiff if injunction is not granted, as opposed to
the damage to the defendant if it is

• prevent the infringer from any further use

• Award damages to the owner

• Royalties for further use

Pros and Cons of Civil Remedies
PROS
• Judicial determination of rights
• Likelihood of damages award
• Less vulnerable to a challenge
• Commissioner’s seizure orders more effective

CONS
• Delays – Trial, Appeal Stages
• Damages not usually awarded

• No severe punishment for violation of rights

Criminal Remedies

Criminal
Remedies

Cognizable Imprisonment Fine up to

Offences up to 3 years 200,000 INR
 Criminal Remedies

• Copyright Act 1957, s.64 empowers the Police (any officer not below the
rank of sub-inspector) to seize infringing copies without warrant

• Police Raids (Power of search, seizure & arrest without a warrant)

• Fines (min. 50,000-200,000 INR)

• Imprisonment (6 months to 3 years)

Criminal enforcement Extra slides

• A series of penal provisions under Chapter 13 of the Act.

The following are the principal penal provisions under the Act:
1. Under section 63, if any person knowingly infringes or abets infringement of copyright in a work & any other right as
covered by the Copyright Act, 1957 (broadcast reproduction rights, performers’ rights, moral rights, etc); punished with
imprisonment of 6 months & maximum term of 3 years, & fine of between Rs 50,000 & 200,000 rupees.

1. Section 65A (inserted by Copyright (Amendment) Act, 2012) penalises circumvention of effective technological
measures that may be applied to copies of a work with purpose of protecting any of the rights conferred under the Act
(ie, copyright, performance rights). Punishment is imprisonment that may extend to 2 years and payment of a fine.

2. Section 65B: makes unauthorised removal or alteration of ‘rights management information’ punishable with
imprisonment of up to 2 years & payment of a fine (unauthorised distribution, broadcast or communication to public of
copies of the work punishable in the same manner if person is aware that electronic rights management information in
the copy has been removed or altered.

3. Section 63A provides for enhanced penalty on 2nd or subsequent convictions under section 63 (see point (i)).

4. Penalties for offences such as using infringing copies of a computer program, making or possessing plates for the
purpose of making infringing copies of works, and making false entries in the Register of Copyrights
 Pros and Cons of Criminal Remedies

PROS
• Quick remedy
• Greater opportunity to quickly counteract violation, with arrest acting as a
deterrent

CONS
• Chances of seizure of goods low
• Difficulty in coordinating with police
▪ 3 suits filed by Adidas Saloman AG in the Delhi High Court
against counterfeiters

▪ At initial stage, infringing goods were seized by Local

Commissioner

▪ Damages of Rs. 15 lakhs was awarded to Adidas

Copyrightable works of art
Map data copyright by
Google
 Features
contd.
• Translations, adaptations, arrangements of
music and other alterations of a literary or
artistic work shall be protected as original
works without prejudice to the copyright in
the orig inal w ork.

www.scoopwhoop.com
 Features
contd.
• Collections of literary or artistic w orks such
as encyclopedias and anthologies which, by
reason of the selection and arrangement of
their contents, constitute intellectual
creations shall be protected as such, without prejudice
to the copyright in each of the works forming part of
such collections.

• The works shall enjoy protection in all countries of the

Union. This protection shall operate for the benefit of
the author and his successors in title.
 Features
• The term of contd.
protection granted
by this
Convention shall be the life of the author
and fifty years after his death.

• Authors of dramatic, dramatico- musical and

musical works shall enjoy the exclusive right
of authorizing:
1.Public performance of their works, by
any means or process
2.Public communication by loudspeaker signs, sounds
or images or any means of broadcasting the work
3.Cinematographic adaptation and reproduction of
these works, and their distribution
 "My film is loosely based upon a sh ort story that I read. I’ve
credited this in the film but I haven't pu rch ased any adaptation
rights. Do Ineed to?"

• If the author has been dead for over 70 years, copyright has probably expired though this varies from
one country's laws to another. If the copyright has not expired, it is likely that the owner of rights will try
and assert their rights over your adaptation even if it is only 'loosely based' upon the short story.

• Find out who owns copyright & then take steps to purchase adaptation rights.
• It may not be considered infringement if 'substantial part' of the original work
hasn’t been copied. Sometimes, a part may be “substantial” even if only a little
material is used. You should consider similarities between short story & your film.

• If you do not purchase the adaptation rights, you run the risk of being sued for
infringement. You may incur legal fees, a severe financial penalty and/or criminal
penalties if you lose.
 The Hindi version
of 24,
starring Anil Kapoor, is the
first adaptation of the
show US - 24 and its India
rights were acquired from
Fox and producer Howard
Gordon by Anil Kapoor
Films

www.firstpost.com
 Features contd.
• The Governments of the countries of the Union
reserve the right to enter into special
agreements among themselves, to grant to
authors more extensive rights than those
granted by the Convention, or contain other
provisions not contrary to this Convention

• The Union shall have an Assembly consisting

of all countries of the Union. The Government
of each country shall be represented by one delegate,
who may be assisted by alternate delegates, advisers,
and experts
• Paper publication is a copyright material

Open access Subscription type

• Biotechnology manuals

• Sequence of DNA yet to be widely recognized as copyright protection

 Process of DNA sequencing DNA sequence could be
does not involve any literary an original work since it
w ork. w ould not have existed
All sequences of DNA are vs but for the toil and effort
composed of existing of its creators w ho had
nucleotides, each of put in their skill and
which is individually not labor into process of
new. There is decoding & recoding
originality mere sequence.
copying or compiling no
gene or similar hybrid
sequences.
Ritika Limited v. Ashwani Kumar Ritika Limited v. Nina Talukdar

Ritika Limited v. Sajid Mobin