MODULE ON COPYRIGHT

Copyright

It is an intellectual property which does not essentially grant an exclusive right over an idea but

the expressions of ideas which makes if different from patent law. Patent is related with

invention - technical solution to technical problems. Copyright is a field which has gone with

artistic, literary creativity- creativity in scientific works, audio-visual works, musical works,

software and others. There are neighboring rights. These are different from copyright but related

with it – performers in a theatre, dancers, actors, broadcasters, producers of sound recorders, etc.

It protects not ideas but expressions of ideas as opposed to patent.

Copyright protects original expression of ideas, the ways the works are done; the language used,

etc. It applies for all copyrightable works. Copyright lasts for a longer period of time. The

practice is life of author plus 50 years after his/her life. Administrative procedures are not

required, unlike patent laws, in most laws but in America depositing the work was necessary and

was certified thereon but now it is abolished.

History of Copyright:

- 1436 – Concept of copyright emerged after invention of Printing Machine by

Gutenberg

- 1483 – King Richard III in England allowed foreigners to import manuscripts and books

into England and print – led to development of ‘Stationers’ in England

- 1523 – King Henry VIII prohibited importation of books from outside leading to

complete ban in 1533

- 1529 – Stationers Co. was formed under the reign of Henry VIII – Every work has to be

registered prior to publication or re-publication – Co. had power to deal with

infringement by seizure and destruction of copies.

- 1662 – Enacted Licensing Act, which continued till 1695 – First Law on Copyright –

repealed in 1679

- 1709 – Statute of Anne was enacted – provided right of printing to authors for a term of

14 yrs, which could be renewed – penalty of a penny per page was devised for infringing

work.

- 1911 – the Copyright Act was enacted repealing almost 20 legislations, including those

from its colonies.

- 1790 – U.S. – American Revolution, 1776 inspired to draft their first Copyright Laws in

1790

- 1847 – India Copyright Act enacted by East India Co. and was repealed in 1911 - Further

modified in 1914 to suit the Indian environment – it was replaced by the Copyright Act,

1957.

The essential characteristics of copyright are:

- Copyright is a negative right as no one is permitted to copy or use the original work

without the permission of the owner.

- It is created under the provisions of the statute.

- It must be of original nature, i.e. intellectual skills must be involved.

- It is a bundle of rights as along with exclusive rights, the owner has the power to

transfer the rights by way of assignment and license for a purposeful use.
 - It consists of a multiple rights like reproductions, adaptations, translations,

cinematography, performance oriented and computer related works.

- In the case of Manoja Cine Products v. A. Sunderam AIR 1976 AP 545 it was held

that only those works recognised under the statute can be copyright.

- In the case of Jagdish Prasad Gupta v. Parmeshwar Prasad Singh AIR 1966 Copyright

Cases 36 it was held that it is a sine quo non for copyright that the work should be

original and the skill and labour involved should be covered under original work u/s

13 (a) and 13 (3).

- It is important to note that mere ideas are not subject matter of copyright and unless

and until it is not presented in some material works like books, films, photographs,

etc., it can’t claim protection under The Copyright Act, 1957.

Scope of Copyright:

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and

cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents,

copyright protects the expressions and not the ideas. There is no copyright protection for ideas,

procedures, methods of operation or mathematical concepts as such.

 Original Literary work: Books, Question Papers, Law Reports, Head Notes on Law

Report, Short Notes on Cases, Business Letters, Research thesis, Dissertation, Panchang,

Concept Note, Slogans, Fictional Characters, Abridgement, etc.

 Original Computer Programmes

 Original Dramatic Works: Choreographic Work, Scenic Arrangement, etc.

 Original Musical Works

  Original Artistic Work; Engraving, Painting, Sculpture, Drawing, Photograph, Graphic

Character, Architectural Work, etc.

 Cinematographic Films,

 Sound Recording,

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. Works of authorship include the following categories:

(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

the form in which it is described, explained, illustrated, or embodied in such work

Berne Convention for the Protection of Literary and Artistic Works (1886)
The Berne Convention deals with the protection of works and the rights of their authors. It is

based on three basic principles and contains a series of provisions determining the minimum

protection to be granted, as well as special provisions available to developing countries that

want to make use of them.

(1) The three basic principles are the following:

(a) Works originating in one of the Contracting States (that is, works the author of which is a

national of such a State or works first published in such a State) must be given the same

protection in each of the other Contracting States as the latter grants to the works of its own

nationals (principle of "national treatment").

(b) Protection must not be conditional upon compliance with any formality (principle of

"automatic" protection).

(c) Protection is independent of the existence of protection in the country of origin of the work

(principle of "independence" of protection). If, however, a Contracting State provides for a

longer term of protection than the minimum prescribed by the Convention and the work ceases to

be protected in the country of origin, protection may be denied once protection in the country of

origin ceases.

(2) The minimum standards of protection relate to the works and rights to be protected, and to

the duration of protection:

(a) As to works, protection must include "every production in the literary, scientific and artistic

domain, whatever the mode or form of its expression" (Article 2(1) of the Convention).

(b) Subject to certain allowed reservations, limitations or exceptions, the following are among

the rights that must be recognized as exclusive rights of authorization:

 the right to translate,

  the right to make adaptations and arrangements of the work,

 the right to perform in public dramatic, dramatico-musical and musical works,

 the right to recite literary works in public,

 the right to communicate to the public the performance of such works,

 the right to broadcast (with the possibility that a Contracting State may provide for a

mere right to equitable remuneration instead of a right of authorization),

 the right to make reproductions in any manner or form (with the possibility that a

Contracting State may permit, in certain special cases, reproduction without

authorization, provided that the reproduction does not conflict with the normal

exploitation of the work and does not unreasonably prejudice the legitimate interests

of the author; and the possibility that a Contracting State may provide, in the case of

sound recordings of musical works, for a right to equitable remuneration),

 the right to use the work as a basis for an audiovisual work, and the right to

reproduce, distribute, perform in public or communicate to the public that audiovisual

work.

The Convention also provides for "moral rights", that is, the right to claim authorship of the

work and the right to object to any mutilation, deformation or other modification of, or other

derogatory action in relation to, the work that would be prejudicial to the author's honor or

reputation.

(c) As to the duration of protection, the general rule is that protection must be granted until the

expiration of the 50th year after the author's death. There are, however, exceptions to this general

rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years

after the work has been lawfully made available to the public, except if the pseudonym leaves no
doubt as to the author's identity or if the author discloses his or her identity during that period; in

the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the

minimum term of protection is 50 years after the making available of the work to the public

("release") or – failing such an event – from the creation of the work. In the case of works of

applied art and photographic works, the minimum term is 25 years from the creation of the work.

A Copyright Owner's Rights

The primary goal of copyright law is to protect the time, effort, and creativity of the work's

creator. As such, the Copyright Act gives the copyright owner certain exclusive rights, including

the right to:

 Reproduce the work

 Prepare "derivative works" (other works based on the original work)

 Distribute copies of the work by sale, lease, or other transfer of ownership

 Perform the work publicly

 Display the work publicly

Reproduction:

The reproduction right is perhaps the most important right granted by the Copyright Act. Under

this right, no one other than the copyright owner may make any reproductions or copies of the

work. Examples of unauthorized acts which are prohibited under this right include photocopying

a book, copying a computer software program, using a cartoon character on a t-shirt, and

incorporating a portion of another's song into a new song.

It is not necessary that the entire original work be copied for an infringement of the reproduction

right to occur. All that is necessary is that the copying be "substantial and material."

Derivative Works

The right to make a derivative work overlaps somewhat with the reproduction right. According

to the Copyright Act, a derivative work is

a work based upon one or more preexisting works, such as a translation, musical arrangement,

dramatization, fictionalization, motion picture version, sound recording, art reproduction,

abridgment, condensation, or any other form in which a work may be recast, transformed, or

adapted.

A derivative work usually involves a type of transformation, such as the transformation of a

novel into a motion picture. In the computer industry, a second version of a software program is

generally considered a derivative work based upon the earlier version.

Distribution

The distribution right grants to the copyright holder the exclusive right to make a work available

to the public by sale, rental, lease, or lending. This right allows the copyright holder to prevent

the distribution of unauthorized copies of a work. In addition, the right allows the copyright

holder to control the first distribution of a particular authorized copy. However, the distribution

right is limited by the "first sale doctrine", which states that after the first sale or distribution of a

copy, the copyright holder can no longer control what happens to that copy. Thus, after a book

has been purchased at a book store (the first sale of a copy), the copyright holder has no say over

how that copy is further distributed. Thus, the book could be rented or resold without the

permission of the copyright holder.

 Congress has enacted several limitations to the first sale doctrine, including a prohibition on the

rental of software and phonorecords.

Public Performance

The public performance right allows the copyright holder to control the public performance of

certain copyrighted works. The scope of the performance right is limited to the following types

of works:

 literary works,

 musical works,

 dramatic works,

 choreographic works,

 pantomimes,

 motion pictures, and

 audio visual works.

Under the public performance right, a copyright holder is allowed to control when the work is

performed "publicly." A performance is considered "public" when the work is performed in a

"place open to the public or at a place where a substantial number of persons outside of a normal

circle of a family and its social acquaintances are gathered." A performance is also considered to

be public if it is transmitted to multiple locations, such as through television and radio. Thus, it

would be a violation of the public performance right in a motion picture to rent a video and to

show it in a public park or theater without obtaining a license from the copyright holder. In

contrast, the performance of the video on a home TV where friends and family are gathered

would not be considered a "public" performance and would not be prohibited under the

Copyright Act.
 The public performance right is generally held to cover computer software, since software is

considered a literary work under the Copyright Act. In addition, many software programs fall

under the definition of an audio visual work. The application of the public performance right to

software has not be fully developed, except that it is clear that a publicly available video game is

controlled by this right.

Public Display

The public display right is similar to the public performance right, except that this right controls

the public "display" of a work. This right is limited to the following types of works:

 literary works;

 musical works;

 dramatic works;

 choreographic works;

 pantomimes;

 pictorial works;

 graphical works;

 sculptural works; and

 stills (individual images) from motion pictures and other audio visual works.

The definition of when a work is displayed "publicly" is the same as that described above in

connection with the right of public performance.

Limitations:

Copyright is not an absolute right.

 It is given to the owner for their limited use subject to certain conditions

prescribed u/s 31 and 52 of the Act.

Sec. 31 of the Act talks about compulsory licensing, whereas Sec. 52

enumerates the use of copyright without infringement.

However, two important conditions that needs to be fulfilled are:

Copyright must be for the benefit of the society.

Copyright cannot be against the public policy.

Compulsory licensing basically means that when the owner of the copyright doesn’t exercise

their exclusive right for public welfare purposes or directly or indirectly monopoly practices in

their fields.

In such conditions, the copyright registrar ad the Copyright Board are

authorized to give compulsory license to any person for public welfare

purposes.

On the contrary, using copyright without any infringement means the power of the central

government to acquire the copyright from its owner in case of misuse, excessive use and

restrictive use under unfair labour practices.

Doctrine of Sweat of the Brow:

Sweat of the brow is an intellectual property law doctrine, chiefly related to copyright law.

According to this doctrine, an author gains rights through simple diligence during the creation of

a work, such as a database, or a directory. Substantial creativity or "originality" is not required.

Under a "sweat of the brow" doctrine, the creator of a copyrighted work, even if it is completely

unoriginal, is entitled to have his effort and expense protected, and no one else may use such a
work without permission, but must instead recreate the work by independent research or effort.

The classic example is a telephone directory. In a "sweat of the brow" jurisdiction, such a

directory may not be copied, but instead a competitor must independently collect the information

to issue a competing directory. The same rule generally applies to databases and lists of facts.

The concept of “originality” has undergone a paradigm shift from the “sweat of the brow”

doctrine to the “modicum of creativity” standard put forth in Feist Publication Inc. v. Rural

Telephone Service by the United States Supreme Court. The doctrine of “sweat of the brow”

provides copyright protection on basis of the labour, skill and investment of capital put in by the

creator instead of the originality. InFeist’s case, the US Supreme Court totally negated this

doctrine and held that in order to be original a work must not only have been the product of

independent creation, but it must also exhibit a “modicum of creativity”. The Supreme Court

prompted ‘creative originality’ and laid down the new test to protect the creation on basis of the

minimal creativity. This doctrine stipulates that originality subsists in a work where a sufficient

amount of intellectual creativity and judgment has gone into the creation of that work. The

standard of creativity need not be high but a minimum level of creativity should be there for

copyright protection.

India strongly followed the doctrine of ‘sweat of the brow’ for a considerably long time. The

Supreme Court of India, following the approach of English Courts, observed that copyright law

does not prevent a person from taking what is useful from an original work with additions and

improvements. The Court has held neither original thought nor original research are necessary

for claiming copyright and even compilations such as dictionaries, gazettes, maps, arithmetic,

almanacs, encyclopaedias etc. are capable of having copyright. In the case of Burlington Home
Shopping v. Rajnish Chibber were the facts were similar to that of Feist’s case, the court

following the doctrine held that a compilation is copyrightable.

However, the standard of ‘originality’ followed in India is not as low as the standard followed in

England. The Bombay High Court in its judgement regarding copyright of a news article stated

that there is no copyright for happenings and events which could be news stories and a reporter

cannot claim any copyright over such events because he/she reported it first. The ideas,

information, natural phenomena and events on which an author spends his/her skill, labour,

capital, judgment and literary talents are common property and are not the subject of copyright.

Hence, there is no copyright in news or information per se. However, copyright may be obtained

for the form in which these are expressed because of the skill and labour that goes into the

writing of stories or features and in the selection and arrangement of the material.

The most important Indian Case on this subject is Eastern Book Company v. D.B. Modak,

where the Supreme Court discarded the ‘Sweat of the Brow’ doctrine and shifted to a ‘Modicum

of creativity’ approach as followed in the US. The dispute is relating to copyrightability of

judgments. The facts of the case is that SCC, the Supreme Court Case reporter, was aggrieved by

other parties infringing their copyright and launching software containing the judgments edited

by SCC along with other additions made by the editors of SCC like cross references, head notes,

the short notes comprising of lead words and the long note which comprises of a brief

description of the facts and relevant extract from the judgments of the court and standardisation

and formatting of text, etc. The notion of “flavour of minimum requirement of creativity” was

introduced in this case. It was held that to establish copyright, the creativity standard applied is

not that something must be novel or non-obvious, but some amount of creativity in the work to

claim a copyright is required. The Court held that these inputs made by the editors of SCC can be
given copyright protection because such tasks require the use of legal knowledge, skill and

judgment of the editor. Thus, this exercise and creation thereof has a flavour of minimum

amount of creativity and enjoy the copyright protection.

Accordingly, the Court granted copyright protection to the additions and contributions made by

the editors of SCC. At the same the Court also held that the orders and judgments of the Courts

are in public domain and everybody has a right to use and publish them and therefore no

copyright can be claimed on the same.

In subsequent cases, the Indian courts followed this approach and completely rejected the plea to

protect mere works of compilation under copyright. Copyright is conferred on those works which

has originated from author and which is not merely a copy of the original work. This does not

push the standard of originality expected to a considerably high level, but brings in a subtle

balance between ensuring reward for the efforts of an author while also maintaining a reasonable

standard in the materials protected under law.

Assignment:

A copyright assignment is when the copyright holder transfers ownership of the copyright to

another person or organization. It is dealt in by Sec. 18, 19 and 19A. Assignment may be either –

 General – without any limitations on the assignee,

 On Territorial limit

 For Full term or for a limited time

Essentials of Assignment:

The essentials for assignment of copyright under Sec. 19 are:

 Assignment must be in writing and signed by bot the parties. [Sec. 19 (1)]

 There must be an identification of the work assigned. [Sec. 19 (2)]

  There must be identification of the specification of the assigned rights. [Sec.19 (2)]

 The duration of assignment and its territorial extent must be specified. [Sec.19 (2)]

 The amount of royalty and the mode of payment must be specified. [Sec. 19 (3)]

 The conditions related to the revision, term and extension of assignment must be

specified. [Sec. 19 (3)]

In case, the assigned right is not exercised by the assignee upto 1 year from the date of

assignment, the assignment would be considered lost.

In case, where the term of assignment is not specified, the maximum period of assignment is 5

years from the date of assignment.

Sec. 19 deals with Mode of Assignment and Sec. 19A deals with Revocation of Assignment.

Term of Copyright

Literary Lifetime of the author + 60 years from the beginning of

dramatic, the calendar year next following the year in which the

musical and author dies.

artistic works

Anonymous and pseudonymous Until sixty years from the beginning of the calendar

works years next following the year in which the work is first

Posthumous work published

Cinematograph films

Sound records
 Government work

Public undertakings

International Agencies

Photographs

Difference between Assignment & Licence:

The main difference between the two is that in an assignment the assignor transfers his rights in

the property being assigned whereas in a license the person granting permission (Licensor)

retains an interest in the property being licensed.

In an assignment of copyright rights, the owner sells his or her ownership rights to another party

and has no control over how the third party uses those rights. A copyright assignment is

sometimes referred to as a sales agreement for copyright. The buyer (assignee) can then use the

copyrighted work or do whatever he or she wants with it. He or she all of the assigned rights that

the original owner had.

In a license of copyright rights, the owner maintains his or her copyright ownership rights, but

allows another party (the licensee) to exercise some of those rights without the licensee’s actions

being considered copyright infringement. A license is often preferred over an assignment when

the copyright holder wishes to maintain and exercise some ownership control over the rights and

how the licensee uses the copyright holder’s rights.

Types of Licenses under the Copyright Act, 1957

Essentials of Licensing:

a. Licensing must be in writing and signed by both parties.

b. There must be an identification of the licensed work.

c. There must be specification of the licensed rights.

d. The fee for license and registration must be done.

e.The process for revision, termination or extension of license must be specified.

Chapter IV of the Copyright Act discusses licensing of copyrighted works. This chapter

discusses seven different types of licenses issued by the Copyright Board:

Compulsory Licenses

Section 31 deals with compulsory licenses of works withheld from public. The amendment

amplifies the applicability of this section from ‘Indian work’ to ‘any work’. The word

‘complainant’ is also replaced with the words ‘such person or persons who, in the opinion of the

Copyright Board is or are qualified to do so’.

a) Compulsory licenses for works withheld from the public: According to this provision, any

person may approach the copyright board, for issuance of a compulsory license to publish a work

that is withheld from the public by the copyright owner. However, before approaching the

Copyright Board, the complainant should have approached the copyright owner first for a license

to republish or perform the work and the copyright owner should have unreasonably rejected the

request of the complainant.(Sec. 31)

b) Compulsory licenses for unpublished works of unknown authors: In case of unpublished

works of unknown or dead authors, any person may apply to the Copyright Board for a license to

publish or communicate to the public such works or translations thereof. However, before
making such an application, the applicant is required by law, to publish his proposal to do so in a

national newspaper.(Sec. 31A)

c) Compulsory licenses for the benefit of the disabled: Any person or non-profit organization

working for the benefit of the disabled may apply to the Copyright Board for a compulsory

license to publish any work in a format suitable for their accessibility.(Sec. 31B)

d) Statutory licenses for Cover Version: Section 31C of the Copyright Act provides for the

grant of statutory licenses for making cover versions of any sound recordings. This section

specifically requires the Copyright Board to fix the minimum amount of royalty to be paid for

the creation of such a version.

e) Statutory licenses for Broadcasting literary, musical works and sound recordings: This

license is issued by the Copyright Board in favour of any broadcasting organization desirous of

broadcasting to the public any literary, musical work or sound recording which is already

published by the copyright holder. Although the Copyright Board is authorized to determine the

royalties payable under this license, the Board is yet to convene and determine these

royalties.(Sec 31D)

f) License to produce and publish translations: This license issued by the Copyright Board

permits the applicant, after the applicant pays a determined royalty to produce and publish a

translation of literary or dramatic work, after seven years of publication of said work. It is

pertinent to note here, that this licensing is not applicable to cinematographic films and sound

recordings.(Sec. 32)

g) License to reproduce and publish works for limited purposes: The Copyright Board may

issue licenses to publish a work in India if the editions of such literary, scientific or artistic works
are not made available in India. The Copyright Board, in case of such applications, may issue the

license after determining the royalty to be paid to the copyright holder. (sec. 32A)

Licenses can be exclusive and non-exclusive

An exclusive license means a license which confers on the licensee or the licensee and the person

authorized by him to the exclusion of all other persons (including the owner of the copyright),

any right comprised in the copyright in work. An exclusive licensee is one who has got such a

right [Sec 2(j)].

In the non-exclusive license, the owner of the copyright is not deprived of his right to grant a

license to persons other than the licensee. He may use the copyright himself as well.

The license can be for an indefinite period or limited to a definite period. In case the license is to

publish a literary or some other work, then the publisher cannot be restrained from selling the

unsold copies published in the license period after the expiry of that period. This is subject to any

agreement to the contrary.

There can be an implied license, i.e., licenses can be implied by the circumstances or by a course

of conduct. If a person sends a letter to the 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.

Rights conferred by the Copyright:

The Right of Reproduction - A copyright holder has the right to reproduce or copy the

protected work. This right is exclusive, meaning only the copyright holder has it. This right is

also one of the most important rights granted by the Copyright Act.

The Right of Distribution - A copyright holder has the right to sell the protected work to the

public or distribute it in other ways including renting, leasing, or lending.

The Right to Create Adaptations - The Copyright Act entitles a copyright holder to create

"derivative works". "Derivative works" are new works that are based on the protected one.

Right to Publicly Perform - The owner of the copyright has the right to publicly perform his

works. Example, he may perform dramas based on his work or may perform at concerts, etc.

This also includes the right of the owner to broadcast his work. This includes the right of the

owner to make his work accessible to the public on the internet.

Negative right – exclude others from exploiting author’s work without permission.

Moral rights – relate to protection of personality of author and integrity of his work

(Sec. 57) and According to Article 6 (b) of the Berne Convention, 1886;

copyright gives two exclusive rights to the owner:

(a) Paternity Rights: One can claim his ownership in case of the infringement

of copyright by virtue of this right.

(b) Integrity Rights: In case of degradation in reputation or image, the person is

entitled to appropriate damages by virtue of this right; which has been

incorporated u/s 57 (1) of the Act as the owner’s right to claim damages.

Economic rights – the author is the only who can commercially reap the benefit of his

work (Sec. 14)

Copyright Office:

Section 9 of the Copyright Act requires for establishment of an office to be called the

Copyright Office for the purpose of the Act. The Copyright Office is to be under the

immediate control of a Registrar of Copyrights to be appointed by the Central

Government, who would act under the superintendence and directions of the Central

Government.
Copyright Board:

The copyright board is a body constituted by the central govt. to discharge certain

judicial function under the Act. The Board is entrusted with the task of adjudication of

disputes pertaining to copyright registration, assignment of copyright, grant of

Licenses in respect of works withheld from public, unpublished Indian works,

production and publication of translations and works for certain specified purposes. It

also hears cases in other miscellaneous matters instituted before it under the Copyright

Act, 1957

It consists of a chairman and not more than fourteen other members. The Chairman and

the members shall hold their office for five years. They may be reappointed on the

expiry of the tenure. The chairman of the copyright board must be a person who is or

has been judge of a High Court or is qualified for appointment as a judge of a High

Court. There is no qualification mentioned about the members of the Board.

The Registrar of Copyright also plays a very important role. The Registrar of the

copyright board will perform all secretarial functions of the copyright board. The

Registrar of the Copyright is the authority under Section 9 of the Act who is the officer

of the Copyright Office. The Registrar of Copyright has powers of the civil court. And

every order made by the registrar of payment of money is deemed as a decree of a civil

court and is executed as decree of such court.

Powers of Registrar & Copyright Board:

The Registrar of Copyright and the Copyright Board have the powers of a civil court in

respect of the following matters:

(a) Summoning & enforcing the attendance of any person and examining him on oath

(this jurisdiction extends to the whole of India);

(b) Requiring the discovery and production of any document;

(c) Receiving evidence on affidavit;

(d) Issuing commission for the examination of witnesses and document;

(e) Requisit ioning any public record or copy thereof from any court or office;

(f) Any other matter which may be prescribed.

Functions of Copyright Board

The first and foremost function of the copyright board is to look after whether the

provisions of the Act are followed without any violation or infringement and to

adjudicate certain cases pertaining to copyrights. Besides, the copyright board has been

provided direct jurisdiction in relation to matters:

(1) To decide the issue of publication and its date in order to determine the term of

copyright

(2) To decide the term of copyright

(3) To settle disputes related to assignment of copyright

(4) To grant compulsory licenses for Indian work

(5) To grant compulsory licenses to publish the unpublished work

(6) To grant compulsory licenses to produce and publis h translation of literary and

dramatic works

(7) To grant compulsory licenses to reproduce and publish certain categories of

literary, scientific or artistic works for certain purposes

(8) To rectify the Register of copyrights on the application of r egistrar of copyrights

or any aggrieved persons

Copyright Societies:

Collective administration of copyright by societies is a concept where management and

protection of copyright in works are undertaken by a society of authors and other

owners of such works. Sec. 33 – 36A deals with it. The minimum membership required

for registration of a society is seven. A copyright society can issue or grant licences in

respect of any work in which copyright subsists or in respect of any other right given

by the Copyright Act. The registration granted to a copyright society shall be for a

period of five years and may be renewed from time to time before the end of every five

years on a request in the prescribed form and the Central Government may renew the

registration after considering the report of Registrar of Copyrights on the working of

the copyright society under Section 36.

Registration of Copyright Societies is provided in Sec. 33

Functions of a copyright society:

(1) A copyright society may issue licences and collect fees in accordance with its

Scheme of Tariff in relation to only such works as it has been authorised to administer

in writing by the authors and other owners of rights and for the period for which it has

been so authorised.

(2) The distribut ion of fees collected shall be subject to a deduction not exceeding

fifteen per cent of the collection on account of administrative expenses incurred by the

copyright society.
Performer’s Rights:

Under Section 2(qq) of the Act “performer” includes an acro bat, musician, singer,

actor, juggler, snake charmer, a person delivering lecture, or any other person who

makes a performance. The section 38 of the Act confers right to performers’ like

actors, dancers, jugglers, acrobats etc. The section 38A of the Act which provides legal

provision for performers’ right which gives exclusive right or authorizes for doing any

act in respect of the performance without prejudice to the rights conferred on authors.

The Copyright Act divides the performers into three categor ies:

1) Performers giving live performances.

The performer when he performers in front of the audience (live) or engages in any

performance he has right over that performance.

2) Performers in a cinematograph film with credits in the film.

The performer when he gives his rights to the person with any written agreement to

make it a part of any commercial use, the performer shall be entitle to have royalt ies or

some monetary benefit.

3) Performers in a cinematograph film without credits in t he film.

There are many performers in supporting cast which are commonly termed as “extras”

in any play, film etc. The Copyright Act till now doesn’t give any protection to such

people except moral rights which might be prejudicial to their reputation.

Section 39A confers the moral rights upon the performers to claim the authorship of

the work, and the right of the integrity of the work.

Acts amounting to Infringement:

  U/s 14 of the Act, exclusive rights exercised by the unauthorized owner or

 without license.

 Permitting for profit, a place to be used for communication of work to public.

 Making for sale or hire, or selling or hiring any infringing copies of work.

 Distributing either for trade or to such extent work which is prejudicially

 affecting the copyright.

 Exhibiting by way of trade, infringed copies of work.

 Import of infringing copies for domestic or private use.

Infringement of Copyright:

Copyright law confers upon the owner of the work a bundle of exclusive rights in

respect of the reproductio n of the work and other acts which enables the owner to get

financial benefits by exercising such rights. If any of these acts relating to the work is

carried out by a person other than the owner without a licence from the owner or a

competent authority under the Act, it constitutes infringement of copyright in the work.

Since copyright is granted only for a limited period, there will be no infringement if

the reproduction of the work or other acts concerned, are carried out after the term of

the copyright has expired.

Essentials of Infringement:

The infringement of copyright is generally based on the reproduction of the work, and it consists

of:

- Reproduction of material work,

- Reproduction of material theme,

 - Reproduction by way of transformation

Section 51 defines infringement of copyright generally. Section 52 gives a long list of

acts which do not constitute infringement of copyright. These are in the nature of

exceptions to the exclusive rights conferred upon the copyright owner. They also serve

as defence in an action for infringement of copyright.

Sec. 51: Copyright in a work is deemed to be infringed -

(a) when any person without a license from the owner of the copyright, or the Registrar

of Copyright, or in contravention of the conditions of a licence g ranted or any

conditions imposed by a competent authority under the Act:

(i) does anything, the exclusive right to do which is conferred upon the owner of the

copyright, or

(ii) permits for profit any piece to be used for the communication of the work to t he

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 any infringing copies of the work, or

(ii) distributes, either for the purpose of trade or to such an extent as to affect

prejudicially the owner of the copyright, any infringing copies of the work, or

(iii) exhibits in public by way of trade any infringing copies of thework, or

(iv) imports into India any infringing copies of the work except one copy of any work,

for the private and domestic use of the importer.

Sec. 52: Certain acts not to be infringement of copyright —

In India the provisions of Section 52 of the Copyright Act, 1957 provide for certain

acts, which would not constitute an infringement of copyright namely fair dealing

with a literary, dramatic, musical or artistic work not being a computer program for the

purposes of-

- private use, including research;

- criticism or review ,

- reporting current events in any print media or

- by broadcast or in a cinematographic film or by means of photographs,

- reproduction for the purpose of a judicial proceeding or of a report of a judicial

proceeding;

- reproduction or publication of a literary, dramatic, musical or artistic work in

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;

- the reproduction of any literary, dramatic or musical work in a certified copy

made or supplied in accordance with any law for the time being in force;

- the reading or recitation in public of any reasonable extract from a published

literary or dramatic work;

- the publication in a collection, mainly composed of non-copyright matter, bona

fide intended for the use of educational institutions,

 - the making of sound if made by or with the license or consent of the owner of

the right in the work

The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which

allows a person to make limited use of copyrighted work without the permission of the

owner.

Whether a person’s use of copyright material is “fair” would depend entirel y upon the

facts and circumstances of a given case. The line between “fair dealing” and

infringement is a thin one. In India, there are no set guidelines that define the number

of words or passages that can be used without permission from the author. Only the

Court applying basic common sense can determine this. It may however be said that

the extracted portion should be such that it does not affect the substantial interest of

the Author. Fair dealing is a significant limitation on the exclusive right of th e

copyright owner. It has been interpreted by the courts on a number of occasions by

judging the economic impact it has on the copyright owner. Where the economic

impact is not significant, the use may constitute fair dealing.

The fair nature of the dealing depends on the following four factors:

- the purpose of use

- the nature of the work

- the amount of the work used, and

- the effect of use of the work on the original

In the case of Kartar Singh Giani v. Ladha Singh, the High court held that:

“two points have been urged in connection with the meaning of the expression fair, in

fair dealing (1) that in order to constitute unfairness there must be an intention to
compete and to derive profit from such competition and (2) that unless the motive of

the infringer were unfair in the sense of being improper the dealing would be fair.”

Remedies for Infringement:

Copyright is a proprietary right and accordingly its infringement is actionable without

proof of damage or likelihood of damage. If infringement is established there is no

need to consider whether the defendant's work is likely to compete with the plaintiffs'

work. Delay or Laches on the part of plaintiff may render him in -eligible for the

remedy.

Civil Remedies for Copyright Infringement

The civil remedies for copyright infringement are covered under Section 55 of the

Copyright Act of 1957. The different civil remedies available are:

1) Interlocutory Injunctions

The most important remedy is the grant of an interlocutory injunction. In most case

the application filled is for interlocutory relief and the matter rarely goes beyond the

interlocutory stage. There are three requirements for there to be a grant of interlocutory

injunction –

- a prima facie case.

- a balance of convenience.

- an irreparable injury.

2) Pecuniary Remedies

Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of

the Copyright Act of 1957.

 - Account of profits which lets the owner seek the sum of money made equal to

the profit made through unlawful conduct.

- Compensatory damages which let the copyright owner seek the damages he

suffered due to the infringement.

- Conversion damages which are assessed according to the value of the article.

3) Anton Pillar Orders

The Anton pillar order gets its name from the hold ing in Anton Pillar AG V.

Manufacturing Processes. The following elements are present in an Anton Pillar Order

- First, an injunction restraining the defendant from destroying or infringing

goods.

- Second, an order permitting the plaintiff’s lawyer to search the defendant’s

premises and take goods in their safe custody.

- Third, an order that the defendant be directed to disclose the names and

addresses of suppliers and consumers.

4) Mareva Injunction

The Mareva injunction comes into play when the court believes that the defendant is

trying to delay or obstruct the execution of any decree being passed against him. The

court has the power to direct him to place whole or any part of his property under the

court’s disposal as may be sufficient to satisfy the decree. This is provided in Order

XXXVIII, Rule 5 of The Civil Procedure Code, 1908.

Criminal Remedies

Dealt in by Sec. 63 - 70
Under the Copyright Act, 1957 the following remedies are provided for infringement:

i) Punishment through imprisonment which, under Indian law, may not be less than six months

but which may extend to three years;

ii) Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to

Rs.200,000.

iii) Search and seizure of the infringing goods including plates which are defined as including

blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended

to be used for printing or reproducing copies of the work.

iv) Delivery up of infringing copies or plates to the owner of the copyright.

Administrative Remedies

Dealt in by Sec. 53

It moves the registrar to ban the importation of infringing copies into India and deliver

the confiscated goods to the owner. This comprises of moving the Registrar of

Copyrights to boycott the import of infringing duplicates into India when the

infringement is by a method for such importation and conveyance of the reallocated

infringing duplicates of the proprietor of the copyright and looking for the conveyance.

A compelling and speedy cure is made accessible by the Act to avoid importation into

India the duplicates of a marketing specialist work made outside India, which is made

in India, would encroach on copyright in the work.

MCQ’S

1. Which of following would not gain copyright protection?

a) A DVD

b) An unrecorded speech

c) Written lyrics of a song

d) A hand knitted jumper

2. What is the duration of copyright protection for a novel?

a) A novel will not gain copyright protection.

b) The day the author dies

c) The end of the calendar year in which the author died.

d) 70 years from the end of the calendar year in which the author died.

3. Copyright protection is available for

(a) Literary work

(b) Musical work

(c) Artistic work

(d) All the above

4. Plan of a building can be protected by

(a) Copyright

(b) Patent

(c) Trade secret

(d) Industrial Design

5. the copyright act came into effect from

(a.) January 1957

(b.) April 1957

(c.) January 1958

(d.) April 1958

6. In terms of works of copyright, which one of the following statements is not correct?

(a.) Copyright does not subsist in a literary, dramatic or musical work unless and until it is
recorded in writing or otherwise

(b.) A dramatic or musical work cannot also be a literary work

(c.) Copyright is a property right

(d.) Copyright does not subsist in a literary, dramatic, musical or artistic work unless and until it
is recorded in writing or otherwise

7. Roger is a computer programmer and is employed by a software development company

known as Programmers R Us Ltd. A retail organisation known as Acme Trading Ltd asked
Programmers R Us to write some computer software to handle Acme's accounts and paid
Programmers R Us a fee of £87,500 for the work. All the work was carried out by Roger at
Acme's premises and on Acme's computer during a period of 10 months. Roger was paid an
hourly rate (£17.25 per hour) by Programmers R Us for his work on the project. There is nothing
in writing to say who owns the copyright subsisting in the computer software and there is no
written assignment of copyright. There is no express or implied agreement as between Roger and
Programmers R Us as to copyright ownership. Which one of the following most accurately
describes the position as regards ownership of copyright in the computer program?

(a.) Acme Trading Ltd owns the legal and beneficial copyright in the software because it paid
for it to be written, there was no agreement to the contrary and Programmers R Us owes a
fiduciary duty to Acme

(b.) As there was no formal assignment of copyright complying with the Copyright, Designs and
Patents Act 1988, Programmers R Us is the first owner of the legal title to the copyright as Roger
created the software as an employee in the course of his employment. However, a court is likely
to hold that Acme is the beneficial owner of the copyright or at least has an implied licence to
continue to use it

(c.) Acme Trading and Programmers R Us are joint owners of the legal and beneficial
copyright. This will enable Acme to continue to use the software and both Acme and
Programmers R Us to licence the software to third parties

(d.) Roger owns the copyright at law and at equity as he created the software. Any presumption
that his employer, Programmers R Us owns it is displaced because he created the software at
Acme's premises and using Acme's equipment

8. In relation to infringement of an original work of copyright, which one of the following

statements is not correct?
 (a.) The part taken from the claimant's work must be a substantial part of that work but need not
be a substantial part of the defendant's work

(b.) Substantiality is more concerned with quality rather than quantity, in other words, it is the
importance of the part taken to the work that has been copied which is the predominant question

(c.) Where an artistic work is copied by converting it from three-dimensions to two-dimensions,

or vice versa, the copy must, in the eyes of a non-expert, look like the work copied

(d.) Copyright infringement requires, essentially, three things to be shown (i) that copyright

subsists in the claimant's work, (ii) that the defendant has copied from the claimant's work

(directly or indirectly), and (iii) that the part copied by the defendant is a substantial part of the

claimant's work

9. Which one of the following is the correct test for subsistence of copyright in a database?

(a.) The database must be the result of skill and judgment and be new even if the constituent
elements in the database are themselves not new or original

(b.) By reason of the selection or arrangement of the contents, the database constitutes the
author's own intellectual creation

(c.) The database must be original, meaning that it originated from the author and was not
copied from another work

(d.) The making of the database must have resulted from a substantial investment in terms of

human, technical or financial resources.

10. A singer wishes to assign the rights to reproduce a video she has

made of her concert.

(a). Copyrights

(b). Trademark

(c). Patent

(a). Industrial designs

(b). Geographical indications

11. Copyright law applies to forms of expression contained in-

(a). Song lyrics and musical compositions

(b). Sculptures and paintings

(c). Dramatic and literary works

(d). All of the above

12. The rights provided by copyrights are

(a). Reproduction of the work in various forms

(b). Public performance and translate into other languages

(c). Broadcasting by radio or cable

(d). All of the above

13.In relation to copyright, time-shifting refers to which of the following?

a) Altering the time of registering copyright of a product

b) Removing the time of the copyright protection

c) A protection for persons with disabilities to circumvent copyright laws relating to recordings

d) To enable individuals to record a broadcast and view/listen to it at a later time

14. Which section of the Copyright Act defines the assignment of copyright

a) 17

b)19 A

c)19

d) 18

15. Copyright protection begins when?

(a) When the original work is fixed in a tangible medium of expression

(b) Immediately when the author or creator comes up with the idea

(c) When it is published

(d) When it is registered

16. Fair use is

(a) anything amount of length as long as the whole work is not copied

(b) generally a short excerpt and attributes to the author

(c) anything under 300 words

(d) when you are using it for purely educational instruction purposes

17. If a work is a commission by a company or individual the original creator

a.) Has rights to the work under any circumstance.

b.) Retains ownership of the work unless another agreement has been made.

c.) Once sold had no rights to the work.

d.) Retains ownership of the preliminary work (ie. rough draft, sketches, etc.) but not the final

finished work.

18. Copyright protection begins when?

a.) When the original work is fixed in a tangible medium of expression

b.) Immediately when the author or creator comes up with the idea

c.) When it is published

d.) When it is registered

19. Guidelines are established to help educators to understand what, under most circumstances

they are allowed to copy. According to those guidelines what generally acceptable to copy

a.) single chapter from a book

b.)sheet music for musical performance

c.) any work without attributing it to the author

d.)a television broadcast that can only be shown after 45 day from its original air date.

20. Copyright protects

(a.) Idea

(b.) Expression

(c.) Both (a) and (b)

(d.) None of the above

Long Answer Type Question

Ques 1 What is copyright? What does copyright protect? How long does a copyright last?

Ques 2 Does the work have to be published to be protected under the copyright act?

Ques 3 How do someone can get permission to use somebody else's work?

Ques 4 Copyright vs. trademark vs. patent - What's the difference?

Ques 5 Is it possible to get the copyright to multiple things in one application?

Ques 6 When is a work considered published?

Ques 7 Can copyright be renewed? If yes, then what is the process of it?

Ques 8 What can you do if someone else is using your work without your permission?

Ques 9 You’ve been caught using someone else’s copyrighted work without permission, what
can you do?

Ques 10 What are different types of licensing provided under the Copyright Act?