Copyright Law and Practice

UNIT 1: INTRODUCTION
INTELLECTUAL PROPERTY IN DAILY
LIFE

Trademarks
Designs
Trade
Secrets
Trade dress

Copyrights-
Authors
Photograph
ers
INTELLECTUAL PROPERTY IN DAILY
LIFE
BRAN
DS

PATENTS
IN
TECHNOLO
GY

COPYRIGHTS
SEMICONDUCT
IN ‘APPS’
OR CHIPS
DESIG
INTELLECTUAL PROPERTY IN DAILY
LIFE
DESIGNS
TRADEMAR
KS
COPYRIGHT
S
GEGRAPHIC
AL
INDICATION
S
INTELLECTUAL PROPERTY IN DAILY
LIFE

DESIG
TRADEMARKS,
TRADE
NS
TRADE
COPYRIGHTS,
SECRETS
DRESS

COPY-
RIGHTS IN
RECIPES PLANT VARIETIES,
GEOGRAPHICAL
INDICATIONS
 INTELLECTUAL PROPERTY IN DAILY
LIFE

COPYRIGHTS IN MUSICAL
WORK FM RADIO-
COMPULSORY LICENSING

DESIG
NS TRADEMARK
S,
PATENTS COPYRIGHTS
IN IN ARTISTIC
INTELLECTUAL PROPERTY IN DAILY
LIFE
INTELLECTUAL PROPERTY IN DAILY
LIFE

COPYRIGHTS
IN BOOKS
IP PERMEATES
OUR EVERYDAY
LIVES...
COPYRIGHTS
Copyright protection gives an exclusive right to do or authorize to
do
certain acts with respect to the following works:

Musical
Literary

Cinematographic
Artistic Film

Sound Recording Dramatic Computer Program

 COPYRIGHTS
 Copyright benefits the author – prevents
unlawful reproduction or exploitation by others
 It isthe protection or reward of the efforts of
the author – need not be meritorious or creative
 It encourages people to create original work by
rewarding exclusive rights
 Protection is only given to Expression and not Ideas
 Protection is Automatic
COPYRIGHTS-RECENT DEVELOPMENTS
 Transferred from Ministryof Human Resource
Development (M HRD) to Department of Industrial Policy and
Promotion (DIPP)

 Department of Electronics and Information Technology v. Star India

Private Ltd., 2016 SCC OnLine Del 4160
The Delhi High Court ordered the blocking of 73 websites and directed
the Department of Electronics and Information Technology to assist
in the enforcement of the orders passed on online piracy issues.

 The Chancellor, Masters & Scholars of University of Oxford and Ors.

v.
Rameshwari Photocopy Services and Ors., 235(2016)DLT409
Fair use-A single Judge of the Delhi high Court dismissed the
infringement suit filed by a consortium of international publishers
against a photocopy shop located in Delhi University, accusing
 Problem- Based Questions

• 'X' prepares the question of Mathematics for B.Sc. (Mathematics)

for Delhi University, 'Y' published the question papers of
previous years including paper of 'X' in a booklet. The University
files a suit of copyright infringement against 'Y'. 'Y' contends that
the University is not first owner of copyright in question papers.
• ‘X’ financed for recording of two Bengali songs. The music and
lyrics of the songs were prepared by ‘A’ and ‘B’ respectively. The
songs were sung by ‘C’. ‘X’ gave commission to ‘A’, ‘B’ & ‘C’
for their work and also paid hire charges for the studio.
 Cont…

• Joseph conceived an idea of reality TV Programme comedy

nights in which some of the best comedians of India and abroad
will take up social issues in a funny manner. The programme will
have a lot of fun and also give messages to the society. He
prepared a detailed concept note and shared it with Suleman Bhai,
a well-known producer of TV programmes, in strict confidence
for the purpose of making a TV show. Sulmean did not make any
commitment to produce the show. After sometimes, Joseph found
that a TV show titled “Weekends with Best Comedians” prepared
by Suleman was being aired by a channel and it was based on his
concept note. He filed a suit against Suleman on the ground that
he has violated his copyright in the concept note and also
breached the confidence. He also applied for injunction against
the TV channel for preventing them from airing the show.
 Cont….

• Mohan is a famous playwright and a theatre director. In 2008 he wrote and directed
a play titled “Fear of the Unknown”. The play portrays the story of a teenaged girl
who has everything that life could offer but still was suffering from depression and
who finally commits suicide. The play received appreciation from the press
and critics. Bhishma is a struggling film producer and director from Bollywood. He
saw the play when it was staged at National School of Drama in February 2008 and
was inspired to make a film on the same theme, In January 2010 his new film “The
Unknowable” is released which contains similar story of a middle-aged man who is
very successful in his profession and has a stable family life but still is suffering
from depression. In contrast to the play, in the film the protagonist is ultimately
able to come out of depression with the help of meditation and starts living a
meaningful life again. Mohan, on seeing the film, sues Bhishma for copyright
infringement.
 Utilitarian
Theory

Justification
of copyright
Labour
as an
Theory
intellectual
property

Hegelian
Theory
 Justification for IP:
• The Utilitarian Theory justifies intellectual property (IP) by emphasizing the
greatest good for the greatest number. It argues that granting exclusive
rights incentivizes creativity, innovation, and investment in intellectual
works. These rights provide creators the opportunity to reap financial and
social benefits, which in turn encourages societal advancement.
• Key Idea: By rewarding creators, society benefits from the dissemination
of new inventions, art, and ideas, which might not exist without such
incentives.
• Criticism: It may prioritize economic efficiency over moral rights and
might lead to monopolistic practices.
 Labour Theory (John Locke’s perspective)

• Justification for IP:

This theory is based on the idea that individuals have a natural right to own
the fruits of their labor. When a creator applies their effort, skill, and time to
produce intellectual works, they acquire a moral claim to the resulting output.
• Key Idea: "What you produce through your labor becomes yours." Hence,
IP rights serve as a natural extension of this labor.
• Criticism: It can be challenging to determine the boundaries of labor in
collaborative or derivative works, and this theory may not account for
collective or communal contributions.
 Hegelian Personality Theory

• Justification for IP:

Rooted in Hegel’s philosophy of personality, this theory suggests that
intellectual creations are an extension of an individual's personality and self-
expression. IP rights are justified as they allow individuals to maintain a
connection with their creations, which are seen as a reflection of their identity
and dignity.
• Key Idea: Protecting IP ensures respect for the creator’s personal autonomy and
individuality.
• Criticism: It may overly emphasize individual rights at the expense of public access
and utility, and its application to corporate or non-personal works can be ambiguous.
 History of Evolution and Development
of the Copyright Law of India
- Ancient Origins: Manuscripts copied and preserved by scribes on palm leaves.

- Colonial Era:
- McMillan v. Khan Bahadur Shamsul Ulama Zaka (1895): Applied UK Copyright
Act in India.
- Copyright Act, 1847:
- Based on UK Copyright Act, 1842.
- Protection for British authors.
- Term: Author's lifetime + 7 years (max 42 years).
- Compulsory licenses for posthumous publications.
- Registration mandatory for enforcement.
- 1912 Decree: Extended UK Copyright Act, 1911, to India.
- Indian Copyright Act, 1914:
- First comprehensive Indian copyright law.
- Influenced by UK Copyright Act, 1911.
- Rights for Indian authors, exclusive protections, and registration system
 Evolution
- Copyright Act, 1957:
- Primary legislation for copyright in India.
- Expanded scope to include literary, artistic
works, music, films, and sound recordings.
- Established the Copyright Board for dispute
resolution.
- Key Amendments:
- 1994 Amendment: Protection for computer
software, supporting the software industry.
List of International Agreements
• - International Alignment:
• - Accession to global conventions:
• - Berne Convention (1886, revised 1971).
• - Universal Copyright Convention (1952).
• - Geneva Phonogram Convention (1971).
• - TRIPS Agreement (1995).
• - WIPO Treaties: WCT (1996), WPPT (1996).
• - Marrakesh Treaty (2013).
• - Provisions harmonized with non-membership
treaties:
• - Rome Convention (1961).
• - Beijing Audiovisual Performances Treaty (2012).
 Berne Convention, 1886

• Signed: 9 sept, 1986.

• Location: Berne, Switzerland
• Parties:168
• Articles:38
• Depository: Director General of the WIPO
• Languages: signed in French and English, officially translated
in Arabic, German, Italian, Portuguese and Spanish.
• It is the most significant international Convention in the field
of protecting copyrights
 Principles of Berne Convention

• National treatment
• Automatic protection
• Independence of Protection
 Work protected Under Berne
Convention
• Literary
• Scientific and
• Artistic Domain
• Encyclopaedias
• Irrespective of their mode of form of its
explosion
 Rights Protected Under
Berne Convention
• Right to translate
• To Make Adaptations and arrangements of the Works
• Right to Perform in Public Dramatic, musical and musical
works.
• Right to recite literary works in public.
• Right to communicate to the public the performance of
such works.
• Right to Broadcast
• Right to make reproductions in any manner or form
• Right to use the work as a basis for an Audio visual work
and right to reproduce, distribute, perform in public or
communicate to the public that audio visual work.
 Duration of protection under Berne
Convention
Type of Work Duration of Protection
50 years after the author's
General Rule (Author's Death)
death.
50 years after lawful public
Anonymous/Pseudonymous
availability unless the author's
Works
identity is revealed earlier.
50 years after public release or,
Audiovisual (Cinematographic)
if not released, from creation.
Works of Applied Art 25 years from creation.

Photographic Works 25 years from creation.

 Exception to the Berne Convention
Berne Convention Type of
Description
Article Limitation/Exception
Permits reproduction in
Reproduction in Special
Article 9(2) specific exceptional
Cases
circumstances.
Allows use of works for
Article 10 Quotation and Teaching quotations and teaching
purposes.
Permits reproduction of
newspaper articles or
Article 10bis Reporting Current Events
similar works for reporting
news.
Allows recordings made
Article 11bis(3) Ephemeral Recordings temporarily for
broadcasting purposes.
 Amendments in Berne Convention
• The Berne Convention, concluded in 1886, was revised at Paris
in 1896 and at Berlin in 1908, completed at Berne in 1914,
revised at Rome in 1928, at Brussels in 1948, at Stockholm in
1967 and at Paris in 1971, and was amended in 1979.
• The Convention is open to all States. Instruments of ratification
or accession must be deposited with the Director General of
WIPO.
 Overview of the Rome
Convention
• Purpose: Secures protection for performers, producers of
phonograms, and broadcasting organizations.
• - Key Protections:
• - Performers: Safeguards against unauthorized
broadcasting, fixation, or reproduction of live performances.
• - Producers of Phonograms: Rights to authorize or prohibit
reproduction; equitable remuneration for secondary uses like
broadcasting.
• - Broadcasting Organizations: Rights to authorize/prohibit
rebroadcasting, fixation, reproduction, and public
communication of broadcasts.
 Limitations, Exceptions, and
Duration
•
• - Limitations and Exceptions:
• - Allowed for private use, short excerpts for reporting,
ephemeral fixation, teaching, or scientific research.
• - Performers' rights do not apply once their performance
is incorporated into visual/audiovisual fixations.
• - Duration of Protection:
• - Minimum 20 years from the year of fixation,
performance, or broadcast.
• - Many national laws extend this to 50 years for
phonograms and performances.
 Administrative and Legal
Aspects
• - Administration: Managed by WIPO, ILO, and UNESCO.
• - Intergovernmental Committee of 12 Contracting States
oversees implementation.
• - Legal Framework:
• - Open to States party to the Berne or Universal Copyright
Conventions.
• - Reservations on specific provisions are permitted.
• - Unique Aspects: No Union or budget established; instruments
of ratification deposited with the UN Secretary-General.
 Overview of the WIPO Copyright Treaty (WCT)

• - Purpose: A special agreement under the Berne Convention focusing

on the digital environment and copyright protection.
• - Key Provisions:
• - Requires compliance with the 1971 (Paris) Act of the Berne
Convention.
• - Protects computer programs and compilations of data (databases)
that are intellectual creations.
• - Databases that do not qualify as intellectual creations are outside
the scope of the Treaty.
 Rights Granted to Authors
• Additional Rights Beyond Berne Convention:
• - Right of Distribution: Authorizes public availability of
original/copies through sale or ownership transfer.
• - Right of Rental: Authorizes commercial rental of:
• - Computer programs (if the program is the essential object).
• - Cinematographic works (if rental leads to widespread
copying).
• - Works in phonograms (as per national laws).
• - Right of Communication to the Public: Covers interactive, on-
demand access via the Internet.
Limitations, Duration, and Protection

• - Limitations and Exceptions:

• - Article 10 applies the "three-step test" from Berne to digital and
non-digital environments.
• - Allows extension of existing or creation of new exceptions for the
digital era.
• - Protection Duration: Minimum 50 years for all works.
• - No Formalities: Rights cannot require any formalities for their
enjoyment or exercise.
 Administration and Enforcement

• - Legal Safeguards:
• - Remedies against circumvention of technological
protections (e.g., encryption).
• - Protection of rights management information for licensing
and royalty management.
• - Enforcement: Ensures deterrent and expeditious remedies
for infringement.
• - Governance:
• - Administered by WIPO Secretariat.
• - Assembly oversees Treaty maintenance and development.
• - Adoption: Concluded in 1996, effective from 2002, open to
WIPO member states and the EU.
 Overview of the WPPT

• - Purpose: Protects rights of performers (actors, singers, musicians)

and producers of phonograms in the digital environment.
• - Rights for Performers (in phonograms):
• - Economic Rights: Reproduction, distribution, rental, and making
available (e.g., on-demand via the Internet).
• - Unfixed Performances: Rights for broadcasting, public
communication, and fixation.
• - Moral Rights: Right to attribution and to object to prejudicial
modifications.
Rights for Producers of Phonograms
• -Economic Rights:
• - Reproduction, distribution, rental, and making available (on-
demand, interactive access).
• - Single equitable remuneration for use of phonograms in
broadcasting or public communication.
• - Limitations: Contracting Parties may restrict or deny these
rights with reservations under reciprocity principles.
Limitations, Protection, and Duration

• - Limitations and Exceptions:

• - Article 16 adopts the "three-step test" from the Berne Convention
for digital and non-digital environments.
• - Contracting States may extend existing or create new limitations for
the digital environment.
• - Protection Duration: Minimum 50 years for rights.
• - Formalities: Enjoyment of rights cannot be subject to any formalities.
 Administration and Enforcement

• - Enforcement: Legal remedies against circumvention of

technological measures and manipulation of rights
management information.
• - Administrative Framework:
• - Treaty managed by the WIPO Secretariat; Assembly of
Contracting Parties oversees maintenance and development.
• - Obligates Contracting Parties to ensure effective and
deterrent enforcement measures.
• - Adoption: Concluded in 1996, in force since 2002, open to
WIPO members and the European Community.
 WIPO Performances and Phonograms
Treaty (WPPT), 1996
• Introduction to WPPT
• Extension Of: Rome Convention (1961)
• Adopted In: 1996
• Came Into Force: 2002
• Contracting Countries: 106 (including India)
• Eligibility: WIPO members and the European Community

• Objectives of WPPT
• Primary Aim: Protect the rights of performers and producers of
phonograms Key Focus: Economic and moral rights of artists and
producers
 Performers’ Rights (Fixed in
Phonograms)
• Economic Rights Granted:
• Right of Reproduction: Authorize reproduction of
phonograms in any form.
• Right of Distribution: Authorize public
distribution of originals/copies via sale or ownership
transfer.
• Right of Rental: Authorize commercial rental of
originals/copies.
• Right of Making Available: Authorize making
performances accessible (e.g., online, on-demand).
 Performers’ Rights (Unfixed Performances)

• Rights for live performances include:

• Right of Broadcasting: Excludes
rebroadcasting.
• Right of Communication to the Public:
Excludes broadcast performances.
• Right of Fixation: Authorize fixing
performances in a tangible form.
 Producers’ Rights
• Economic Rights Granted:
• Right of Reproduction: Direct or indirect
reproduction in any form.
• Right of Distribution: Public distribution of
originals/copies through sale or ownership transfer.
• Right of Rental: Commercial rental of
originals/copies.
• Right of Making Available: Enable public access
via wire or wireless means (e.g., Internet).
 Limitations and Exceptions

• Contracting parties can adapt rights to fit the digital environment

of their country.
• Minimum Protection Period: 50 years after recording.
• Countries can extend protection as per their legal systems.

• Enforcement of Rights

• Action against infringement is governed by the legislation and legal

systems of each contracting country.
 TRIPS
 The Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) is an
international legal agreement between all the
member nations of the World Trade
Organization (WTO).
 It establishes minimum standards for the
regulation by national governments of
different forms of intellectual property (IP) as
applied to nationals of other WTO member
nations.
 TRIPS was negotiated at the end of the
Uruguay Round of the General Agreement on
Type Annex. to the Agreement
establishing the
World Trade
Organization

Signed 15 April 1994

Location. Marrakesh. , Morocco

Effective 1 January 1995

Parties 164 (All WTO

members)
Features of the TRIPS Agreement

There are three main features of TRIPS

agreement which are discussed below:

• Standards: The main elements of protection

is defined, namely the subject-matter to be
protected, the rights to be conferred and
permissible exceptions to those rights, and
the minimum duration of protection.
• Dispute Settlement. : The Agreement
makes disputes between WTO Members
about the respect of the TRIPS obligations
subject to the WTO's dispute settlement
procedures.
• Enforcement: The second main set of
provisions deals with domestic procedures and
remedies for the enforcement of intellectual
property rights. It contains provisions on civil and
administrative procedures and remedies,
provisional measures, special requirements
related to border measures and criminal
procedures, which specify, in a certain amount of
detail, the procedures and remedies.
Issues covered by the TRIPS

• How basic principles of the trading system and

other international intellectual property
agreements should be applied
• How to give adequate protection to intellectual
property rights
• How countries should enforce those rights
adequately in their own territories
• How to settle disputes on intellectual property
between members of the WTO
• Special transitional arrangements during the
period when the new system is being
introduced.
 Criticisms of the TRIPS Agreement
While the TRIPS Agreement has its merits, it has also faced criticism on several
fronts, including:
•The agreement has been criticized for potentially limiting access to affordable
medicines in developing countries. This is particularly due to stringent patent
protection and high drug prices.
•Critics argue that the agreement disproportionately benefits developed countries
with strong intellectual property industries. It hinders the development
opportunities of developing nations.
•Some argue that the TRIPS Agreement restricts the ability of member countries
to tailor their intellectual property laws to suit their specific developmental needs
and priorities.
•Enforcement of intellectual property rights can be complex and costly, especially
for developing countries. This leads to concerns about the effectiveness of
enforcement measures.
Areas not covered by the
TRIPS Agreement
The TRIPS Agreement does not cover a number of areas of IP subject matter,
either because there was no consensus at the time the Agreement was
negotiated, or because the areas in question had not yet emerged, or simply
because the negotiators of the TRIPS Agreement did not consider that problems
of barriers to trade existed in those areas. Some of those areas are of particular
interest to developing countries, such as utility models, traditional knowledge
and handicrafts.
Introduction to the Marrakesh VIP Treaty
(MVT)
 Formally Known As: Marrakesh Treaty to Facilitate Access to
Published Works by Visually Impaired Persons and Persons with Print
Disabilities
 Adopted: June 28, 2013, in Marrakesh, Morocco

 Operational Since: September 30, 2016

 Eligibility: All WTO members can adopt the Treaty

 Signatories: 80 members signed; 20 ratified

 India's Role: First country to ratify

 Objectives of the MVT
 Primary Goal: Societal and humanitarian
 Purpose: Provide legal exceptions to copyright laws
 Target Group:
o Blind
o Visually impaired
o Print disabled persons
Key Provisions of the MVT
1. Exception to Domestic Copyright Law:
o Ratifying countries must allow blind individuals/organizations to convert
reading material into accessible formats without requiring permission from
copyright holders.
2. Import and Export of Accessible Versions:
o Allows cross-border exchange of accessible formats without copyright
holder consent.
o Reduces duplication of efforts in creating accessible materials.

Key Provisions of the MVT

• Allowed Works:
• Literary and artistic works under copyright
Exclusions:
• o Films and audiovisual materials
Conditions:
• o Content must not be altered, only transcribed into accessible formats
 Practice Questions
•A photographer uploads her photographs to a social media platform. Later,
a company uses her photograph in a promotional campaign without her
consent.
•A professor copies chapters from a textbook and distributes them to
students as study material without the publisher’s permission, whether this
constitutes copyright infringement?
•A YouTuber creates a video review of a movie and includes clips from the
film. Does this usage fall under fair dealing/fair use? Why or why not?
•A musician creates a parody of a popular song and uploads it online.
whether this is protected under copyright law?
•A software developer reverse-engineers a proprietary software to create
an interoperable product. Is this activity permissible under copyright law?
Parody