Intellectual Property Rights: COPYRIGHT

Introduction:

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights
including, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work.

Copyright laws grant authors, artists and other creators protection for their literary and artistic
creations, generally referred to as “works”. A closely associated field is “related rights” or rights
related to copyright that encompass rights similar or identical to those of copyright, although
sometimes more limited and of shorter duration. The beneficiaries of related rights are:

 performers (such as actors and musicians) in their performances;

 producers of phonograms (for example, compact discs) in their sound recordings; and
broadcasting organizations
 in their radio and television programs.

Works covered by copyright include, but are not limited to: novels, poems, plays, reference
works, newspapers, advertisements, computer programs, databases, films, musical compositions,
choreography, paintings, drawings, photographs, sculpture, architecture, maps and technical
drawings.

Objectives: Need or necessity of granting Copyright protection:

Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity. Creativity being the keystone of progress, no
civilized society can afford to ignore the basic requirement of encouraging the same. Economic
and social development of a society is dependent on creativity. The protection provided by
copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and
producers of sound recordings, cinematograph films and computer software, creates an
atmosphere conducive to creativity, which induces them to create more and motivates others to
create.

Copyright and related rights protection is an essential component in fostering human creativity
and innovation. Giving authors, artists and creators incentives in the form of recognition and fair
economic reward increases their activity and output and can also enhance the results. By
ensuring the existence and enforceability of rights, individuals and companies can more easily
invest in the creation, development and global dissemination of their works. This, in turn, helps
to increase access to and enhance the enjoyment of culture, knowledge and entertainment the
world over, and also stimulates economic and social development.

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How have copyright and related rights kept up with advances in technology?

The field of copyright and related rights has expanded enormously during the last several
decades with the spectacular progress of technological development that has, in turn, yielded
new ways of disseminating creations by such forms of communication as satellite broadcasting,
compact discs and DVDs. Widespread dissemination of works via the Internet raises difficult
questions concerning copyright and related rights in this global medium. WIPO is fully involved
in the ongoing international debate to shape new standards for copyright protection in
cyberspace. In that regard, the Organization administers the WIPO Copyright Treaty (WCT) and
the WIPO Performances and Phonograms Treaty (WPPT), known as the “Internet Treaties”.
These treaties clarify international norms aimed at preventing unauthorized access to and use of
creative works on the Internet.

Term or Tenure of Copyright:

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic,
musical and artistic works the 60-year period is counted from the year following the death of the
author. In the case of cinematograph films, sound recordings, photographs, posthumous
publications, anonymous and pseudonymous publications, works of government and works of
international organizations, the 60-year period is counted from the date of publication.

Work:

A work means any of the following, namely, a literary, dramatic, musical or artistic work, a
cinematograph film, or a sound recording.

Work of joint Authorship:

"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.

Classes of works for which copyrights protection is available in India:

Copyright subsists throughout India in the following classes of works:

 Original literary, dramatic, musical and artistic works;

 Cinematograph films; and
 Sound recordings.

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Classes of works

Original Cinematograph Sound

literary, films recordings
dramatic,
musical and
artistic works

"Cinematograph film"
means any work of visual "Sound recording"
ARTISTIC WORK: means a recording of
recording on any
medium produced sounds from which
 a painting, a sculpture, a sounds may be
through a process from
drawing (including a diagram, produced regardless of
which a moving image
map, chart or plan), an the medium on which
may be produced by any
engraving or a photograph, such recording is made
means and includes a
whether or not any such or the method by
sound recording
work possesses artistic which the sounds are
accompanying such
quality; produced. A
visual recording and
 a work of architecture; and phonogram and a CD-
"cinematograph" shall be
 any other work of artistic ROM are sound
construed as including
craftsmanship. recordings.
any work produced by
any process analogous
to cinematography
including video films.
MUSICAL WORK:

"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. A musical work need not be written
down to enjoy copyright protection.

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Government work:

"Government work" means a work which is made or published by or under the direction or
control of the government or any department of the government any legislature in India, and any
court, tribunal or other judicial authority in India.

What is an Indian work?

"Indian work" means a literary, dramatic or musical work,

 the author of which is a citizen of India; or

 which is first published in India; or
 the author of which, in the case of an unpublished work is, at the time of the making of
the work, a citizen of India.

Foreign Works:

 Copyrights of works of the countries mentioned in the International Copyright Order are
protected in India, as if such works are Indian works.
 Copyright as provided by the Indian Copyright Act is valid only within the borders of the
country. To secure protection to Indian works in foreign countries, India has become a
member of the following international conventions on copyright and neighboring
(related) rights:
a) Berne Convention for the Protection of Literary and Artistic works.
b) Universal Copyright Convention.
c) Convention for the Protection of Producers of Phonograms against Unauthorized
Duplication of their Phonograms.
d) Multilateral Convention for the Avoidance of Double Taxation of Copyright
Royalties.
e) Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

Rights:

Copyright grants its owner a set of rights protected by law. These rights are exclusive in nature
i.e. except the owner of the “original work” no one else can enjoy these rights, without the
permission of the owner. These rights vary according to the class of work.

Computer programs are protected under the Copyright Act. They are treated as literary works. In
addition to all the rights applicable to a literary work, owner of the copyright in a computer
program enjoys the rights to sell or give on hire or offer for sale or hire, regardless of whether
such a copy has been sold or given on hire on earlier occasion.

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Exclusive rights in the case of a literary work:

In the case of a literary work (except computer programs):

 To reproduce the work

 To issue copies of the work to the public
 To perform the work in public
 To communicate the work to the public.
 To make cinematograph film or sound recording in respect of the work
 To make any translation of the work
 To make any adaptation of the work.

Exclusive rights in a dramatic work:

In the case of a dramatic work:

 To reproduce the work

 To communicate the work to the public or perform the work in public
 To issue copies of the work to the public
 To include the work in any cinematograph film
 To make any adaptation of the work
 To make translation of the work.

Rights in an artistic work:

In the case of an artistic work,

 To reproduce the work

 To communicate the work to the public
 To issue copies of the work to the public
 To include the work in any cinematograph film
 To make any adaptation of the work.

Rights in a musical work:

In the case of a musical work:

 To reproduce the work

 To issue copies of the work to the public
 To perform the work in public
 To communicate the work to the public
 To make cinematograph film or sound recording in respect of the work

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 To make any translation of the work

 To make any adaptation of the work.

Rights in a cinematograph film:

In the case of a cinematograph film:

 To make a copy of the film including a photograph of any image forming part thereof
 To sell or give on hire or offer for sale or hire a copy of the film
 To communicate the cinematograph film to the public.

Rights in a sound recording:

 To make any other sound recording embodying it

 To sell or give on hire, or offer for sale or hire, any copy of the sound recording
 To communicate the sound recording to the public.

Right of reproduction:

The right of reproduction commonly means that no person shall make one or more copies of a
work or of a substantial part of it in any material form including sound and film recording
without the permission of the copyright owner. The most common kind of reproduction is
printing an edition of a work. Reproduction occurs in storing of a work in the computer memory.

Right of communication to the public:

Communication to the public means making any work available for being seen or heard or
otherwise enjoyed by the public directly or by any means of display or diffusion. It is not
necessary that any member of the public actually sees, hears or otherwise enjoys the work so
made available. For example, a cable operator may transmit a cinematograph film, which no
member of the public may see. Still it is a communication to the public. The fact that the work in
question is accessible to the public is enough to say that the work is communicated to the public.

Adaptation:

Adaptation involves the preparation of a new work in the same or different form based upon an
already existing work. The Copyright Act defines the following acts as adaptations:

 Conversion of a dramatic work into a non dramatic work

 Conversion of a literary or artistic work into a dramatic work
 Re-arrangement of a literary or dramatic work
 Depiction in a comic form or through pictures of a literary or dramatic work

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 Transcription of a musical work or any act involving re-arrangement or alteration of an

existing work.
 The making of a cinematograph film of a literary or dramatic or musical work is also an
adaptation.

Copyright over news:

There is no copyright over news. However, there is copyright over the way in which a news item
is reported.

Copyright protection for Computer Programs:

Computer programs are protected under the Copyright Act. They are treated as literary works.
They provide the owner of the copyright with the following exclusive rights:

 To reproduce the work

 To issue copies of the work to the public
 To perform the work in public
 To communicate the work to the public.
 To make cinematograph film or sound recording in respect of the work
 To make any translation of the work
 To make any adaptation of the work.
 To sell or give on hire or offer for sale or hire, regardless of whether such a copy has
been sold or given on hire on earlier occasion.

Related Rights:

Performer’s Rights:

Performer:

As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who
makes a performance.

Performance:

"Performance" in relation to performer’s right, means any visual or acoustic presentation made
live by one or more performers.

Rights of a performer:

A performer has the following rights in his/her performance:

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 Right to make a sound recording or visual recording of the performance;

 Right to reproduce the sound recording or visual recording of the performance;
 Right to broadcast the performance;
 Right to communicate the performance to the public otherwise than by broadcast.

Term of protection of performer’s rights:

Performer’s rights subsist for 25 years.

Rights of a performer in a cinematograph film:

Once a performer has consented for incorporation of his performance in a cinematograph film,
he shall have no more performer’s rights to that performance.

Broadcaster’s right:

Broadcast:

"Broadcast" means communication to the public:

 by any means of wireless diffusion, whether in any one or more of the forms of signs,
sounds or visual images; or
 by wire.

Broadcasting organization rights:

The rights of a broadcasting organization with reference to a broadcast are :

 right to re-broadcast the broadcast;

 right to cause the broadcast to be heard or seen by the public on payment of any
charges;
 right to make any sound recording or visual recording of the broadcast;
 right to make any reproduction of such sound recording or visual recording where such
initial recording was done without licence or, where it was licensed, for any purpose not
envisaged by such licence; and
 right to sell or hire to the public, or offer for such sale or hire, any sound recording or
visual recording of the broadcast.

Term of protection of broadcaster’s rights:

The term of protection for broadcaster’s rights is 25 years.

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Moral rights:

Moral rights of an author:

The author of a work has the right to claim authorship of the work and to restrain or claim
damages in respect of any distortion, mutilation, modification or other acts in relation to the said
work which is done before the expiration of the term of copyright if such distortion, mutilation,
modification or other act would be prejudicial to his honor or reputation. Moral rights are
available to the authors even after the economic rights are assigned.

The moral rights are independent of the author’s copyright and remains with him even after
assignment of the copyright.

Failure to display a work or to display it to the satisfaction of the author shall not be deemed to
be an infringement of the moral rights of the author.

Copyright Infringement:

The following are some of the commonly known acts involving infringement of copyright:

Primary Infringement:

 Making infringing copies for sale or hire or selling or letting them for hire;
 Permitting any place for the performance of works in public where such performance
constitutes infringement of copyright;
 Distributing infringing copies for the purpose of trade or to such an extent so as to affect
prejudicially the interest of the owner of copyright ;
 Public exhibition of infringing copies by way of trade; and
 Importation of infringing copies into India.

Secondary Infringement:

If a person permits for profit any place to be used for the communication of a 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, he will be deemed
to have committed an offence under the Copyright Act.

Defenses against an Infringement Case/Suit:

An exhaustive list of defenses to copyright infringement is provided ( section 52, Copyright Act
). This provision is referred to as "fair dealing" and is similar to the fair use principles of

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copyright. However, one major point of distinction between the two is that while fair dealing
comprises an exhaustive set of activities, fair use is purely subjective.

The following activities are immune from an infringement action:

 Private use, including research.

 Criticism or review.
 Reporting current events in print media or by broadcast or in a cinematographic film or
using photographs.
 Reproduction for the purpose of a judicial proceeding or of a report of a judicial
proceeding.
 Reproduction for the purpose of preparation of work prepared by the secretariat or the
legislature.
 Reproduction of a work in a legally authorized, certified copy of it.
 Reading or recitation of reasonable extracts from a published literary or dramatic work.
 Publication of a work as part of a collection of works that mainly consist of non-
copyright works, provided it is intended for educational use.
 Reproduction of a work in furtherance of educational activities, that is, by a teacher
during the course of instructions, or as part of questions or their answers in examinations.
 Section 52 contains a host of other exceptions that amount to infringement. Over a period
of time, the Indian courts have developed several tests to determine fair dealing
including:
 Amount and substantiality of dealing or reproduction.
 Purpose and character of the dealing or reproduction.
 Intention to derive profits from unfair competition.

Section 52 of Copyright act 1952: (only for reference, not part of syllabus)

52.Certain acts not to be infringement of copyright: –

The following acts shall not constitute an infringement of copyright, namely:

(a) a fair dealing with a literary, dramatic, musical or artistic work 104[not being a
computer program] for the purposes of-
(i) private use, including research;

(ii) criticism or review, whether of that work or of any other work; "

(aa)The making of copies or adaptation of a computer program by the lawful possessor

of a copy of such computer program, from such copy-

(i) in order to utilize the computer program for the purposes for which it was supplied; or

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(ii) to make back-up copies purely as a temporary protection against loss, destruction or
damage in order only to utilize the computer program for the purpose for which it was
supplied;"
"(ab) the doing of any act necessary to obtain information essential for operating inter-
operability of an independently created computer program with other programs by a lawful
possessor of a computer programs provided that such information is not otherwise readily
available;
(ac) the observation, study or test of functioning of the computer program in order to
determine the ideas and principles which underline any elements of the program while
performing such acts necessary for the functions for which the computer program was
supplied;
(ad) the making of copies or adaptation of the computer program from a personally
legally obtained copy for non-commercial personal use; ;

(b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of
reporting current events-

(i) in a newspaper, magazine or similar periodical, or

(ii) by [broadcast] or in a cinematograph film or by means of photographs.

[Explanation.- The publication of a compilation of addresses or speeches delivered in public

is not a fair dealing of such work within the meaning of this clause;]

(c) the reproduction of a literary, dramatic, musical or artistic work for the purpose of a
judicial proceeding or for the purpose of a report of a judicial proceeding;

(d) the 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;

(e) 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;

(f) the reading or recitation in public of any reasonable extract from a published literary or
dramatic work;

(g) the publication in a collection, mainly composed of non-copyright matter, bona fide
intended for the use of educational institutions, 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 the use of educational institutions, in
which copyright subsists :

Provided that not more than two such passages from works by the same author are published

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by the same publisher during any period of five years.

Explanation.- 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;

(h) the reproduction of a literary, dramatic, musical or artistic work-

(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the questions to be answered in an examination; or

(iii) in answers to such questions;

(i) 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 recordings] if the audience is limited to such staff and students, the parents
and guardians of the students and persons directly connected with the activities of the
institution [or the communication to such an audience of a cinematograph film or sound
recording].
(j) the making of sound recordings in respect of any literary, dramatic or musical work, if-

(i) sound recordings of that work have been made by or with the license or consent of the
owner of the right in the work;

(ii) the person making the sound recordings has given a notice of his intention to make the
sound recordings, has provided copies of all covers or labels with which the sound
recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the
work royalties in respect of all such sound recordings to be made by him, at the rate fixed by
the Copyright Board in this behalf:

Provided that-
(i) no alterations shall be made which have not been made previously by or with the consent
of the owner of rights, or which are not reasonably necessary for the adaptation of the work
for the purpose of making the sound recordings;

(ii) the sound recordings shall not be issued in any form of packaging or with any label which
is likely to mislead or confuse the public as to their identity;

(iii) no such sound recording shall be made until the expiration of two calendar years after the
end of the year in which the first sound recording of the work was made; and

(iv) the person making such sound recordings shall allow the owner of rights or his duly
authorized agent or representative to inspect all records and books of account relating to such

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sound recording:

Provided further that if on a complaint brought before the Copyright Board to the effect that
the owner of rights has not been paid in full for any sound recordings purporting to be made in
pursuance of this clause, the Copyright Board is, prima facie, satisfied that the complaint is
genuine, it may pass an order ex parte directing the person making the sound recording to
cease from making further copies and, after holding such inquiry as it considers necessary,
make such further order as it may deem fit, including an order for payment of royalty;
(k) the causing of a recording to be heard in public by utilizing it,-

(i) 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

(ii) as part of the activities of a club or similar organization which is not established or
conducted for profit;

(iii) as part of the activities of a club, society or other organization which is not
established or conducted for profit;

(l) 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;

(m) 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;

(n) the publication in a newspaper, magazine or other periodical of a report of a lecture

delivered in public;

(o) 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 public
library for the use of the library if such book is not available for sale in India;
(p) 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;

(q) the reproduction or publication of-

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(i) any matter which has been published in any Official Gazette except an Act of a Legislature;

(ii) 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;

(iii) 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;

(iv) 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;

(r) the production or publication of a translation in any Indian language of an Act of a

Legislature and of any rules or orders made there under-

(i) if no translation of such Act or rules or orders in that language has previously been
produced or published by the Government; or

(ii) 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 authorized or accepted as authentic by the
Government;
(s) the making or publishing of a painting, drawing, engraving or photograph of a
work of architecture or the display of a work of architecture;

(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or

other artistic work failing 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;

(u) the inclusion in a cinematograph film of-

(v)any artistic work permanently situate in a public place or any premises to which the
public has access; or

(ii) 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;

(v) 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 :

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Provided that he does not thereby repeat or imitate the main design of the work;
(x) 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 license of the owner of the
copyright in such drawings and plans;

(y) in relation to a literary, dramatic 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 (a) 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-

(i) identifying the work by its title or other description; and

(ii) unless the work is anonymous or the author of the work has previously agreed or required
that no acknowledgement of his name should be made, also identifying the author.
(z) the making of an ephemeral recording, by a broadcasting organization using its own
facilities for its own broadcast by a broadcasting organization 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;

(za)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.

Explanation.- For the purpose of this clause, religious ceremony including a marriage
procession and other social festivities associated with a marriage.

(2) The provisions of sub-section (1) 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.

Remedies: Protection against Copyright Infringement

Civil remedies:

A copyright owner can take legal action against any person who infringes the copyright in the
work. The copyright owner is entitled to remedies by way of:

 Injunctions

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 Damages
 Accounts.

Permanent injunction
 A claimant can seek a permanent injunction.

Monetary remedies
 The court can either award damages or direct the defendant to submit an account of
profits so damages can be assessed at a later date (but not both).

Delivery up or destruction of infringing goods

 The court can pass an order directing the seizure, forfeiture or destruction of the
infringing goods and of materials used to create them.

Assessing Monetary remedies:

Monetary remedies are assessed and awarded to a claimant using various criteria.
Broadly speaking, there are three forms of damages, including:

 Actual/compensatory damages . These relate to the loss caused to the claimant as a

result of the defendant's infringement. The claimant must provide evidence to prove the
loss it claims to have suffered.
 Punitive damages . This compensation is granted where the defendant's conduct has
been so bad faith that the court believes that compensatory damages are not proportionate
to the extent of the misconduct. The court can award damages over and above the
finalized compensatory damages.
 Token/nominal damages . These are awarded for early resolution of a particular dispute.
Alternatively, where the defendant has been proceeded against ex parte and the claimant
is not in a position to prove the exact quantum of loss, the court can award a fixed
amount that it believes reasonable to compensate the claimant for infringement.

Criminal remedy:

Any person who knowingly infringes or abets the infringement of the copyright in any work
commits criminal offence under Section 63 of the Copyright Act.

The minimum punishment for infringement of copyright is imprisonment for six months with the
minimum fine of Rs. 50,000/-.

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In the case of a second and subsequent conviction the minimum punishment is imprisonment for
one year and fine of Rs. one lakh.

Copyright infringement is a cognizable offence: Any police officer, not below the rank of a sub
inspector, may, if he is satisfied that an offence 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 purpose 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.

Border measures:

The Indian Government can prohibit the import and export of specified goods if it deems it
necessary to do so. Under section 11 of the Indian Customs Act 1962, the government can
prohibit the import or export of goods for the protection of patents, trade marks and copyright.
India has also ratified the Intellectual Property Rights (Imported Goods) Enforcement Rules
2007. The rules comply with the border measures set out in TRIPS, empowering customs
officers to enforce intellectual property rights over imported goods.

Remedies in the case of groundless threat to legal proceedings:

Where any person claiming to be the owner of copyright in any work, by circulars,
advertisements or otherwise, threatens any other person with any legal proceedings or liability in
respect of an alleged infringement of copyright, any person aggrieved thereby may institute a
declaratory suit that the alleged infringement to which the threats related was not in fact an
infringement of any legal rights of the person making such threats and may in any such suit –

 obtain an injunction against the continuance of such threats; and

 recover such damages, if any, as he has sustained by reason of such threats.

*(Responsibility for copyright offence committed by a company:

Every person who at the time the offence was committed was in charge of, and was responsible
to the company for, the conduct of the business of the company, as well as the company shall be
deemed to be guilty of such offence and shall be liable to be proceeded against.

Rights of owner over infringing copies and equipments used for making infringing copies:

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.)

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Enforcement:

No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try any offence under the Copyright Act. Infringement of copyright proceedings can be
instituted before a district court, within whose jurisdiction, the claimant either:
 Resides.
 Carries on business.
 Personally works for gain.

A police officer not below the rank of sub inspector can seize without warrant all infringing
copies of the work.

The District Court concerned has the jurisdiction in civil suits regarding copyright infringement.

Enforcement options:

Civil proceedings
Civil remedies can be enforced by filing a suit for either infringement and/or passing off in the
relevant district court.
Civil proceedings include the following remedies:
 Injunctions: Injunctions can either be interlocutory, temporary or permanent. They are a
prohibitory court order restraining a party from acting adversely until disposal of the
lawsuit. A permanent injunction is the final order of the court that confirms and causes
temporary injunctions to become permanent.
 Anton Piller orders: This grants an ex parte search and seizure option to the claimant
permitting access to the defendant's premises to inspect relevant documents and articles,
take copies of them and/or remove them to safe custody where there is danger that they
will be destroyed.
 John Doe orders: These are issued by a court against unknown/anonymous defendants
to restrain them from continuing any infringing actions.
 Quia Timet actions: A quia timet action can be filed by a claimant who anticipates
infringing activities by the defendant. The claimant requests the court to grant an
injunction on the basis of reasonable anticipation.
 Damages/account of profit: In an infringement action, a claimant can only seek one
kind of relief. It must elect either a remedy for damages or an account of profit. Damages
are compensatory in nature and make good the loss caused to the claimant. An account of
profit is an equitable remedy requiring the defendant to hand over to the claimant actual
amounts of profit made from the infringing activities.
 Destruction and delivery up: The infringer is directed to deliver the infringing material
to the claimant or destroy it in the presence of a local commissioner (appointed by the
court) or the claimant himself.

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Criminal proceedings
Section 63 of the Copyright Act deals with offences of infringement of copyright or other rights
under the Act. It provides for a term of imprisonment of not less than six months, extendable to
three years. It also provides for payment of a fine between INR50,000 and INR200,000.
The term of imprisonment and the fine can be increased under the provisions of section 63A of
the Copyright Act.

Border measures
The Indian Government can prohibit the import and export of specified goods if it deems it
necessary to do so. Under section 11 of the Indian Customs Act 1962, the government can
prohibit the import or export of goods for the protection of patents, trade marks and copyright.
India has also ratified the Intellectual Property Rights (Imported Goods) Enforcement Rules
2007. The rules comply with the border measures set out in TRIPS, empowering customs
officers to enforce intellectual property rights over imported goods.

Copyright: Ownership, Assignment and Licensing-

The owner of the copyright means person who possess and enjoys the legal right. Ordinarily the
author is the first owner of copyright in a work. Copyright protects the rights of authors, i.e.,
creators of intellectual property in the form of literary, musical, dramatic and artistic works and
cinematograph films and sound recordings. The definition given to the author in the context of
copyright protection depends on the nature of the work;

 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 a cinematograph film, the producer.
 In the case of a sound recording, the producer.
 In the case of a photograph, the photographer.
 In the case of a computer generated work, the person who causes the work to be created.
 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.
 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.

The rights can be transferred in following manner

1) Licensing of Copyright

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The licensing of copyright involves the transfer of some or all of the rights to a licensee to
utilize his work for financial benefits by the copyright owner or licencor. However, there is a
distinction between the licensing and assignment of copyright. In licensing, the ownership rights
do not vest with the licensee whereas in the case of assignment, the ownership do not vest with
the assignor anymore.

Types of Copyright Licenses

a) Voluntary license:

A copyright license agreement should have the following features:

1) Time period for which the license is granted.
2) Rights licensed and nature of the work.
3) Geographical extent of the license.
4) Terms and conditions relating to the termination, revision and extension of the license.
5) Total amount of royalty.

b) Compulsory License
Compulsory license is granted by the copyright board in some special circumstances which are:
i) If a copyright owner for an Indian work, which has already been published, has refused to
republish the work and is not giving allowance for the same.
ii) If a copyright owner for an Indian work has refused to allow the performance of the work in
public, which has already been worked in public, and as a result the work is withdrawn from the
public.
iii) If a copyright owner for an Indian work has refused the communication of the work to the
public by broadcast.
The “Indian work” includes:

 A cinematographic film or a sound recording made in India.

 An artistic work created by a citizen of India.

2. Assignment of Copyright

 The rights of a copyright owner can be assigned by him to any other person by way of an
assignment. As soon as a work is created or comes into existence, a copyright owner
naturally gets entitled to assign his rights. Further, a copyright owner is entitled to
multiple rights i.e both economic rights and moral rights.

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 According to the Indian Copyright Act, 1957 a prospective owner of copyright of the
future work may also assign his rights partially or wholly. The assignment will have the
effect only when the work would come in existence.
 The assignment should have the following features:
1) The terms and conditions regarding the revision and termination of the assignment
should be explicit.
2) The total amount of royalty should be mentioned.
3) The assignment should be in writing duly executed by the copyright owner (Assignor).
4) The copyright work and the rights assigned should be mentioned clearly.
5) If the term of assignment is not mentioned, then the term shall be taken as 5 years from
the date of assignment by default. If the geographical limit is not stated, then it is
assumed to extent within India.

3. Transmission of copyright
If the owner of the copyright dies, who was working on a manuscript of dramatic,
literary, artistic or musical work and was unable to publish the manuscript before dying,
then, in that case, the copyright ownership is transmitted to the person stated in the will.

4. Relinquishment of Copyright
All or any of the right vested in the copyright of a work, can be relinquished by an author
of a work, by giving a notice to the Registrar of Copyrights in a prescribed form. The
rights shall cease to exist from the date of the notice. The registrar shall cause the notice
to be published in the Official Gazette, once he receives such notice, or he may cause the
notice to be published in such a manner as he deem to be fit.

Difference Between Assignment and License

Assignment of copy right and copyright license are two forms of contract involved in the
exploitation of copyright work by a third party. Each has its own distinct characteristics.

1. A license is an authorization of an act without which authorization would be an

infringement. Licensing usually involves licensing of some of the rights and not the
whole. Licenses can be exclusive or non exclusive. An assignment involves the disposal
of the copyright: the author (assigner) assigns the copyright to another person (assignee)
or transfer of ownership of the copyright.
2. In the case of license only specified interest in IP is transferred not the ownership is
transferred to the licensee. A license normally does not confer any right to licensee
against licensor or third party but exclusive licensee has substantial rights against the

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licensor, even to sue the licensor. And by if the licensee in the case of future work dies
before the work comes in to existence his legal representatives shall be entitled to such
works, in the absence of any provision to the contrary.

Unless he joins the owner of copyrights as a party to the infringement action, he can not take an
action for infringement against third party but a purchaser in good faith and for value of the
proprietors interest without notice of previous licensee is unaffected by it. The licensee can
however, sue the assignor for damages for breach of contract if the latter does not protect his
interest. A licensee has a right to make alterations except in so far as his license expressly or
impliedly restricts the right. A failure to pay royalties enables the licensor to revoke the license.
But in the case of assignment it is not possible. But if there is any harsh terms which affect the
author can lead to revocation if a complaint is made to the copyright Board. Where the assignee
of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects
to 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. The owner of the copyright has the power to assign his entire rights or
assign only some of the rights. In case the rights are split up there is only partial assignment.
Assignee will be the owner of the copyright as regard rights so assigned, the owner will be the
owner of the copyright of remaining rights. The assignment could be for whole duration of the
copyright or for a short duration.

Mode of assignment

No assignment of the copyright in any work shall be valid unless it is in writing signed by the
assignor or by his duly authorized agent. It shall identify such work, specify the rights assigned,
duration, territorial extent of such assignment, amount of royalty payable to the author. If the
period is not stated it shall be deemed to be five years and territorial extend shall be presumed to
extend within India. If the assignee does not exercise such rights within one year from the date of
such assignment it shall be deemed to have lapsed unless otherwise specified in the assignment.
The assignor can file a complaint to the copyright board if the assignee fails to make sufficient
exercise of the rights assigned, failure not attributable to the act or omission, then copyright.
board after such enquiry as it deem necessary may revoke the assignment, this provision may be
used for u/s 31 as a ground for compulsory licensing. Also regarding any dispute to assignment it
follows the same procedure including an order for recovery of any royalty payable. Provided that
if the terms of the assignment is harsh to the assignor(author) it shall revoke the assignment, but
after five years from the date of assignment. This proviso seems to be irrational; it may not help
the author to revoke within five years which means he has to suffer. s.19 & 19A are applicable in
the of licensing too. . In the case of unpublished work the author must be a citizen of India or

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domiciled in India at the time of the creation of the work. Copyright in an architectural work will
subsist only if the work is located in India irrespective of the nationality of the author.

Assignment of Future Rights

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. when new rights are granted by the
legislature on existing works due to the technological development, problem arises as to the
ownership of the new rights, whether the assignor who assigned already all the existing rights on
the work or the assignee is the owner of the future rights.

Re-sale Share Right

The first owner of the copyright and his legal heirs are granted a right called resale share right in
original copy. This right is exercisable even after the assignment of the work. This right is
confined to certain works only i.e., original copy of painting, sculpture, or drawing or original
manuscript of a literary or dramatic or musical work and is available only to the first owner of
right or his legal heirs. This right is conferred by S.53A the share shall be fixed by copyright
Board. Different shares for different classes of work, share shall not exceed 10% of re sale price.
The decision of the copyright Board shall be final if any dispute arises.

Right of author to relinquish copyright

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 from to the Registrar of Copyrights and thereupon such
rights shall, subject to the following conditions, cease to exist from the date of the notice. On
receipt of a notice, the Registrar of Copyrights shall cause it to be published in the Official
Gazette and in such other manner as he may deem fit. The relinquishment of all or any of the
rights comprised in the copyright in a work shall not affect any rights subsisting in favor of any
person on the date of the notice.

Copyright Registration:

The purpose of copyright registration is to place on record a verifiable account of the date and
content of the work in question, so that in the event of a legal claim, or case of infringement or
plagiarism, the copyright owner can produce a copy of the work from an official government
source.

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Acquisition of copyright is automatic and it does not require any formality. However, certificate
of registration of copyright and the entries made therein serve as prima facie evidence in a court
of law with reference to dispute relating to ownership of copyright.

Copyright comes into existence as soon as a work is created and no formality is required to be
completed for acquiring copyright. However, facilities exist for having the work registered in the
Register of Copyrights maintained in the Copyright Office of the Department of Education. The
entries made in the Register of Copyrights serve as prima-facie evidence in the court of law. The
Copyright Office has been set up to provide registration facilities to all types of works and is
headed by a Registrar of Copyrights.

Guidelines regarding registration of a work under the Copyright Act :

The procedure for registration is as follows:

 Application for registration is to be made on Form IV ( Including Statement of

Particulars and Statement of Further Particulars)
 Separate applications should be made for registration of each work;
 Each application should be accompanied by the requisite fee prescribed in the second
schedule to the Rules ; and
 The applications should be signed by the applicant or the advocate in whose favor a
Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by
the party and accepted by the advocate should also be enclosed.

Each and every column of the Statement of Particulars and Statement of Further Particulars
should be replied specifically.

Both published and unpublished works can be registered. (Copyright in works published before
21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered,
provided the works still enjoy copyright.)

 In case of published work, three copies of published work may be sent along with the
application.
 If the work to be registered is unpublished, a copy of the manuscript has to be sent along
with the application for affixing the stamp of the Copyright Office in proof of the work
having been registered. In case two copies of the manuscript are sent, one copy of the
same duly stamped will be returned, while the other will be retained, as far as possible, in
the Copyright Office for record and will be kept confidential. It would also be open to the
applicant to send only extracts from the unpublished work instead of the whole
manuscript and ask for the return of the extracts after being stamped with the seal of the
Copyright Office.

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When a work has been registered as unpublished and subsequently it is published, the applicant
may apply for changes in particulars entered in the Register of Copyright in Form V with
prescribed fee.

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