CHAPTER-1 INTRODUCTION 1.1 GENERAL Property according to traditional classification may be either movable or immovable.

Both movable and immovable properties fall under the category of corporeal property which is capable of being physically touched, sensed and perceived, it is also called tangible property. Another property is intangible property which cannot be seen. It relates to intellectual property, securities and individual reputation etc. Intellectual property is that property which is created by human intelligence i.e. mental labour, and it includes property and literary property. The category of industrial property includes patents, trademarks, industrial designs and layout designs. Literary property includes copyright and neighboring rights including the performer's rights. In recent times many new forms of intellectual property have come into existence. They include plant varieties, plant breeders rights, digital copyright and domain names etc. Many new forms are related to Information Technology (IT), Chemical Technology (CT) and Bio-technology (BT). However these parts are attracting the attention of the commercial world. Because of phenomenal advancement of science and technology new forms of intellectual property also came into existence, they include business methods, computer programs etc. Mere ideas cannot be protected under intellectual property. They can be protected only when they are put in materialistic form (which is tangible). The answer to the question, "What constitutes the most precious thing in the world?" Is undoubtedly 'the human mind'. This is because the mind has conceived innovative ideas and created the mechanisms to apply them. Many things around us which have occurred merely due to innovation and creativity. If individuals who conceive the innovative ideas are not rewarded, it would lead to the curtailment of their creativity. This is where the concept of intellectual property steps in the main reason having intellectual property right is to reward the persons who put in efforts into intellectual creations. Another reason is by giving protection to intellectual 1

property many such endeavors are encouraged and industries based on such work can thrive. Further, it also leads to financial returns and prosperity. This form of intellectual property has got greater recognition only in the 18th century. In fact intellectual property acquired greater recognition in international law, when compared to the municipal laws. In todays world the international dimension of intellectual property is of ever increasing importance for three compelling reasons
1) The composition of world trade is changing; currently commerce in

intellectual property has become an even greater component of trade between the nations. The value of information products has been enhanced greatly by the new technologies like semi-conductor chip, computer software and biotechnology.
2)

The world commerce has become even more interdependent, establishing a need for international co-operation. No longer can a simple country impose its economic will on the rest of the world. Accordingly countries have recognized this interdependence and have called for a broadening of international agreements, arrangements involving intellectual property.

3)

New reprographic and information storage technologies permit unauthorized copying if take place faster and more efficiently than ever undermining the creator's work. Intellectual property is predominantly recognized in the commercial world to

protect the interest of mercantile community. It is specially created and recognized in law in spite of its monopolistic nature for a definite period or for an unlimited period based upon the nature of creation. The flow of knowledge based information can be constrained by space and national borders. The need for comprehensive international agreements governing intellectual property could be seen even in the 19th century, which came into fruitarian with the union of Paris for the Protection of Industrial Property (1883) and the Berne Convention for the protection of Literary and Artistic works (1886).

World Intellectual Property Organization (WIPO) which governs the intellectual property rights of member states. There are many international instruments and international institutions help in understanding of the international regime of intellectual property rights, through trips, GATT; patent co-operation Treaty, Budapest Treaty, Madrid Agreement, Lisbon Agreement, Trademark Treaty and regulation and Universal Copyright Conventions etc., WIPO Copyright Treaty. An invention can be patented and no other person can use that invention for his own without paying fees to the owner. It is same with authorship in various forms. The notion that an author should have an exclusive 'copyright' in his creation, it took a firm shape at the beginning of the eighteenth century. Copyright is considered as a kind of property, but its precise nature differs substantially from other forms of property with which more people are familiar. Indian Copyright Act of 1957 provides copyright protection of original literary, dramatic, musical and artistic works, cinematograph films and records during the authors life and for 50 years. Subsequent to the authors death also. Briefly, copyright means the right to copy or the right to restrict or control copying. Starting with books copyright protection has gradually expanded to cover other domains of intellectual creations like art, sculpture, architecture, choreography, films, records and broadcasting. Accordingly legislative actions against infringement and video piracy had come into force to protect the copyright. A brief historical view will help in understanding why copyright protection has started, with the invention of printing which made it possible. Copyright is an exclusive right granted to the author to make copies or reproduction of his work for a certain period. Law confers monopoly right on the author for the intellectual effort. Copyright restricts any person except author, to use the works without the authors will. Copyright restricts the reproduction of the work in any material form, publication performance in public, broadcasting, transmission over a diffusion service and the making of an adaptation. Adaptation includes the conversion of a non-dramatic work into a dramatic work and vice-versa, a translation 3

or a version for publication in which the story or action is conveyed wholly or mainly by pictures. Copyright is a unique kind of intellectual property the importance of which is increasing day by day. It does not fall in the category of intellectual property. The basic areas that are covered under the copyright protection are in the field of printing, music, communication, entertainment and computer industries. In fact 'copyright' was the first intellectual property which received legal recognition in the world. The right which a person acquires in a work which is the result of his intellectual labour is called his copyright. The primary function of a Copyright law is to protect the fruits of a man's work, labour, skill or test from annexation by other people. The law of copyright has to protect a man's copyright irrespective of his status as a family man or saint.1 Copyright is a unique kind of intellectual property. The right which a person acquires in a work, which is the result of the intellectual labour, is called his copyright. The primary function of a copyright law is to protect the fruits of mans work, labour, skill or test from being taken away by other people.2 However, the copyright protection extends to the original works of the authors; authors were given copyright to use his work in any manner as he likes to reproduce, sell or make copies or distribute the copies of the work. Copyright law can be divided into
i) Copyright law in the strict sense of the work; i.e. the protection of

intellectual creativity; and

ii) The law on neighboring rights.

Section 14 of Indian Copyright Act defines copyright as an "exclusive right by virtue of and subject to, the provision of this Act" to do and authorize doing of any number of prescribed acts in relation to literary, artistic and dramatic works and
1 2

Sulamangalam R. Jayalakshmi Vs. Meta Musicals, 2001 (1) Raj 150. Holy Faith International Pvt. Ltd., Vs. Shiv K. Kumar, 2006(3) Raj, 64(A.P)-2006(33) PTC 456.

to cinematograph films and records. Copyright constitutes property rights in personam and in rem, violation of which can be redressed under the protection of the Act. It is also important to stress at the outset that copyright is defined as a statutory right, owing its existence and stature within the four corners of the Act. Section 16 of the Act makes it clear that no person is entitled to copyright "or any similar right in any work otherwise than under in accordance with the provisions of this Act or of any other law for the time being in force". No customary law is to be pleaded. The meaning of copyright for each category of work is quite extensive and that copyright protection extends to all binds of work including those which represent "originality" at vanishing point. The requirement of 'originality' in Indian law, as elsewhere, does not refer to ideas but rather to the manner and material forms of their expression. The objective of copyright, it has been stressed in India, is not to "create monopoly in ideas"; rather the protection aims of T.R.S. Iyenger, the Copyright Act 1957 (101 3rd ed.1977) prevention of unlawful reproduction of dealing with the manner and material form in which ideas are expressed. Consequently, originality also refers not to novelty or creativity in ideas but only to the manner and material form of their presentation. The expression of thought, the form, formulation, order, plan or arrangement of presentation as testifying to the investment by the author of mental faculties, skills, competence, craftsmanship, knowledge, labour and capital in the production of any work. In other words the requirement of originality is an elliptical way of expressing the idea that the work should not be a substantial copy of another work; or more colorfully it should not amount to piracy of another's skills, competence, craftsmanship, labour and capital. In a sense, copyright law protects the author against dishonest and willful misappropriation or theft of the author's efforts. Obviously, the notion of originality does not even entail a modicum of novelty or creativity. The extent or amount of originality in expression or material form may be very small but that small amount is protected by law.3

Govindan Vs. Gopalakrishnan, AIR 1955, Mad 391 at 393.

Copyright is defined in the concise oxford dictionary as "the exclusive right given by law, for a certain term of years, to an author, composer, etc (or his assignee) to print, publish and sell copies of his original work". The moral justification for providing legal protection is based on the principle that a man is entitled to the fruits of his brain as much as he is entitled to the fruits of his mechanical labour. "The congress shall have power....to promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries". 4 All original literary works are eligible for protection what is protected however is not the idea but the literary form, whether it is of merit or not. It is generally held that titles of books, which are mere words, do not have copyright. Adaptations, condensations or rearrangements of literary works, whose protection has ceased, are eligible for protection. Dictionaries, gazetteers, directories and such other compilations of public domain materials are also protected, provided they be original and not merely copied from an earlier work. In an encyclopedia, in addition to the copyright held by the contributor of an article, there may be a separate copyright vesting in the editor in regard to arrangement. Illustration in books may have a separate copyright, as artistic works. These may not necessarily be held by the author of the literary work. Publishers of maps might like to know that it is an offence to show wrong international boundaries and these are to be verified in advance with the survey of India. In regard to topographical details, the survey of India would ask for copyright fees in all those cases where their topographical details are used. Publishers of law books may note that though any one may reproduce under Sec.52 (l)(g) of the 1957 Act yet head notes may have copyright and these may not be lifted from other law reports. In case of joint works where the individual contributions of the participating authors are not distinguishable, the rights are held jointly.

U.S. Constitution Art 1, Sec.8.

Almost invariably, the back of the title page of any book will contain a copyright notice. Under the Berne Convention, such a notice is not necessary, unless the state where the work is first published stipulates such a condition in its domestic law. Under the universal copyright convention, however a copyright notice has to be included in a prominent place. The notice is to consist of three parts namely, (1) the letter 'c' in a circle (2) the name of the copyright proprietor and (3) the year and date of publication. The absence of this notice may invalidate copyright in universal copyright convention countries not belonging to the Berne Union.
1.2

SIGNIFICANCE OF PROBLEM Copyright is a kind of intellectual property the importance of which has

increased enormously in recent years due to eh rapid technological development in the field of printing, musical, communication, entertainment and in computer fields. Now-a-days the law of copyright has gained much importance not only in literary, dramatic or musical works, but also artists, dress designers, architects, publishers, multimedia, persons concerned with cinematograph film and recording and broadcasting authorities and printing, publishing and entertainment industries. Infringement of copyright can be stopped by an action for infringement. This study intended to study developments of copyright and importance of copyright in India.
1.3

OBJECTIVES OF THE STUDY

1)

An attempt is made in the present study to evaluate, the emerging trends and different provisions of copyright law in India. 2) The researcher has taken up the study the different aspects of copyright from their origin and development. 3) Number of questions is involved in this study like, what is the importance of copyright law? Why and how they were recognized and protected by the institution of copyright? What are the legislations passed and how are they implemented? How conventions are helpful in protection of copyright internationally.

1.4 METHODOLOGY The present research work is explanatory and descriptive design of study. Descriptive design because various legislations and international Conventions on the protection of copyright are to be discussed elaborately. From the study the main source of information to be collected from secondary sources like books, articles, reports, journals and newspapers and internet etc. Researcher also consulted the legal luminaries and experts in the field of intellectual property law.
1.5 REVIEW OF LITERATURE

The present study which is based on secondary data method, it is based on published works like books, journals and periodical. These works give information about the cases, enactments, amendments, etc. In addition to these books, many websites give much information about the latest developments and position of copyrights in different countries and its enactment, and commentaries of different jurists about the copyright law in India. Dr. G.B. Reddy's Intellectual Property Rights and the law focus on the copyrights law in India and its relativeness with other intellectual property rights. W.R.Cornish book on intellectual property gives the information about origin and development of copyright law. P.S. Narayanan book on intellectual property gives full length information of copyrights. Websites like www.wipo.org, www.iprlawindia.org, www.spicyip.com gives much information of copyrights in India. 1.6 PLAN OF STUDY The present study is divided into Six chapters. The first chapter deals with the introduction significance of problem, objectives of study, methodology used, and review of literature and plan of study.

1) The second chapter is origin and development of copyrights law in

India an approach.
2) The third chapter is Copyright - Analysis of the law which deals with

definition of copyright, meaning of copyright, rights of owners of copyright, and infringement of copyright.
3) The fourth chapter deals with Infringement of Copyrights. 4) The fifth chapter deals with the Legal Protection of Copyright in India

and Judicial Perspective of Copyrights.

5) The sixth chapter deals with the Conclusion and Suggestions for the

implementation of the Act.

CHAPTER-2 ORIGIN AND DEVELOPMENT OF COPYRIGHT LAW - AN APPROACH General There is need to protect the works of writers, poets, composers, play rights, etc from unauthorized usage of others. Printing made it easy to prepare multiple copies of a work quickly and cheaply. But it affects the rights of talented people, hence government made necessary legislations to protect the works of the owners by giving copyright to them. It is discussed in the following chapters. 2.1 ORIGIN AND DEVELOPMENT OF COPYRIGHTS LAW IN INDIA It is customary to commence historical accounts of copyright law with enactment of the 1914 Act which did nothing more than extend all vital respects the United Kingdom copyright Act to India. The then Indian legislature, under Section 26, had the power to modify the provisions of this Act. We lack knowledge about systems of copyright protection and indeed of the total legal systems, of about six hundred odd ex-princely states which never became, legally, a part of British India and continued their "sovereign" existence till 26 January 1950, when India became a free republic. But there is some evidence that some such states elected to adopt basic features of English statutes on copyright, modifying them in some respects to suit local conditions. An adequate history of copyright law in India must take note of the systems developed in the Portuguese and French enclaves in India; which persisted about a decade or so, after attainment of the Indian independence. First statute on copyright was enacted during the east India Companys regime in 1847. Its preamble recites several doubts which exist or which "may exist" concerning recognition and enforcement of copyright as a part of the common law or administration of justice on the basis of "justice, equity and good conscience" or as regards the application of British statutes or territories then administered by the East India Company. The term of copyright was for the life time of the author plus seven years post-mortem. But in no case the total term of copyright was to exceed the period of forty- two years. The government was empowered to license publication of the book if the owner of copyright upon the death of the author refused to allow its 10

publication. Unauthorized printing of copyright work for "sale hire or exportation" or for selling, publishing or exposing to sale or hire constituted infringement. Suit or action for infringement was to be instituted in the "highest local court excursing original civil jurisdiction". The Act provided specifically that under a contract of service copyright in "any encyclopedia review, magazine, periodical work or work published in a series of books or parts" shall vest in the "proprietor, projector, publisher or conduct". Infringing copies were deemed to be copies of the proprietor of copyrighted work. Registration of copyright with the home office was mandatory for the enforcement of rights under the Act; but the proviso to section 14 specifically reserved the subsistence of copyright in the author and his right to sue for its infringement to the extent available in law other than the 1847 to 1911. We do not have much information on how this legislation operated during the period 1847 to 1911. 2.2 INTERNATIONAL CONVENTIONS PROTECTING COPYRIGHT In the globalization of trade and commerce there is every need for the protection of copyright internationally, following international conventions are directly concerned with the international protection of copyright.
a. Berne Convention. b. Universal Copyright Convention. c. International Convention for the Protection of Performers.

a) Berne Convention For The Protection Of Literary And Artistic Works The International Union for the Protection of Literary and Artistic works was first established in 1886 in Berne, Switzerland. It is popularly known as the Berne Union or Berne Convention. It entered into force on 5th December, 1887 and has been revised five times with two additions, and is administered by WIPO. The latest text is that of the Paris Revision, 1971. As on January 1, 1996, there were 117 states which become parties to the Berne Convention. The Berne Convention has 38 articles and an appendix incorporating special provisions for the developing countries. The substantive provisions of Berne are

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found in the first 20 articles, followed by administrative provisions. This convention is based on national treatment and compliance with convention minima. The conventions scope and application is very broad encompassing "literary and artistic works" which include every production in the literary, scientific and artistic domain, irrespective of the mode or form of its expression. Therefore works such as choreography, painting, and architecture, compilations and derivative works, and even the industrial designs find protection under the Berne Convention. The Berne Convention (1886), which is the oldest International Convention governing Copyright, the following in its article 2 The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the made or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatic-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; words of drawing, painting, architecture sculpture, engraving and lithography; photographic works, to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting architecture, sculpture, engraving and lithography; photographic works, to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three dimensional works relative to geography, architecture, topography or science. Translations, adaptations, arrangements of music and other alterations of a literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections. The published and unpublished works of authors, who are the nationals of member countries, are covered under the protective umbrella of the Convention.

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The Convention has established a minimum term of protection of life plus 50 years or an alternative of 50 years from publication for anonymous and pseudonymous works. It also recognized certain limitations to the exclusive rights such as fair use privilege and a possible limitation on the right of recording a musical works. A part from the authors exclusive economic rights, Berne Convention requires that the author's moral rights be recognized and endure beyond the life of the author. The developing countries have been given certain special privileges beginning with the Stockholm revision in 1967. Similar privileges are found in the appendix to Paris text of 1971. India is a member of the Berne Convention. These provisions go a long way in preventing the plagiarism and other firms of violation of copyrights. b) Universal Copyright Convention The Universal Copyright Convention was signed and entered into force on September 6, 1952 and it was revised in 1971 at Paris. Even though the Berne Convention has been the mainstay of international copyright; certain major states like the U.S.A., Soviet Union and China did not joint it. Therefore the UCC was developed as an alternative to Berne Convention to allow these countries to participate in an international agreement. The UCC is under and administered by the UNESCO of the UNO. The basis of the UCC is the national treatment and also the requirement of maintenance of specific minimum legal standards by each contracting state. The contracting states are under an obligation to provide adequate and effective protection. The protection given is for published as well as unpublished works. The convention limits the formalities that can be required of works first published outside the territory of a member state. For such works the only formalities allowed are that all the copies of the work must bear the symbol accompanied by the copyright proprietor's name and the year of first publication placed in such conspicuous manner so as to be noticed easily. The member countries must grant a minimum copyright term of 25 years from publication, or life of the author plus 25 years. The foreign authors of other member countries must be granted exclusive rights for at least seven years.

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One notable feature of the UCC is that it contains a Berne safeguard clause which prohibits a Berne Convention Country from denouncing Berne Convention and relying on the UCC in its copyright relations with members of the Berne Convention. 5The UCC was revised in Paris in 1971, in response to demands made by the developing countries. Special provisions allow the developing countries to obtain compulsory licenses under certain conditions to translate copyrighted works for teaching, scholarship and research purposes. It also allows reproduction of copyrighted works for use in systematic instructional activities. The UCC protects the economic rights of the authors effectively. As January 1, 1996; 95 states where members of UCC. India is a member of the UCC. The provisions of the UCC were strengthened by the convention and protocols, of Geneva, 1952 and at Paris in 1971. c) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Phonogram means a sound recording. The rights in respect of phonograms and performances and broadcasting are called neighboring rights. The Rome Convention which was completed on October 26, 1961 and entered into force on May 18, 1964 basically intends to protect the neighboring rights. The beneficiaries of the convention are performers, producers of phonograms, and broadcasters. The convention grants protection to performers if their performance takes place in another contracting state, if incorporated in a phonogram that is protected by the Convention. If not fixed on a phonogram, and is carried by a broadcast, the Convention protects such broad-cast also. Under the Convention, performers are protected against the unauthorized broadcast of their public performances and enjoy the rights to a first fixation of their performance. Similarly, producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their programs in the form of phonograms. Any user of such phonograms has a duty to pay a single remuneration equitable in nature to artists or producers for a public performance of a phonogram. In so far as the broadcasting rights are concerned, broadcasting organizations shall enjoy the right to the fixation, reproduction and rebroadcast of their broadcasts,
5

See Article XVII and Appendix declaration relating to article XVII of the Convention.

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subject to any limitations imposed under the domestic law. Generally the protection is granted for a 20 year term, computed from the end of the year when the fixation was made for phonogram and performances incorporated therein. If the performance is not incorporated in a phonogram, the term will be calculated from the end of the year when the performance took place. For broadcasts, the year when the broadcast took place will determine the duration of protection. The eligibility to participate in the Rome Convention is that a state must have become a member of either the Berne Convention or the Universal Copyright Convention. As of January 1, 1996, there were 50 states which became members of the Rome Convention. India was not a member on that date. 2.3 COPYRIGHT RIGHT LAW IN UNITED STATES The copyright law of the United States governs the legally enforceable rights of creative and artistic works. The purpose of copyright law is to promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries. Copyright law has expanded coverage to include the idea of stimulating the creation of as many works of art, literature, music and other works of authorship in order to benefit the public. The United States recognizes no absolute, natural right in an author to prevent others from copying or otherwise exploiting his work. The copyright law gives authors limited property rights in their works, but for the ultimate purpose of benefiting the public by encouraging the creation and dissemination of more works. The authors interest is secondary to that of the public. Copyright never gives rights in the idea being expressed or in facts or other elements of the public domain which an author may incorporate into his work.

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The United States copyright law protects "original works of authorship" including literary, dramatic, musical, artistic and certain other intellectual works. This protection is available to both published and unpublished works. Other works include audiovisual works, derivative works, sound recordings, compilations, pantomimes and choreographic works, pictorial, graphic and sculptural works, architectural works etc. An important limitation on the scope of copyright protection is the idea/ expression, while the copyright law protects the expression of an idea, it does not protect the idea itself. The distinction between "idea" and "expression" is a fundamental part of U.S. law. Exclusive Rights of Owner of Copyright The owner of copyright has exclusive right to do and to authorize others to do a. To reproduce the work in copies or phone records. b. To prepare derivative works based upon the work. c. To publicly perform the works in the case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures and other audiovisual works, and sound recordings by means of digital audio transmission. d. To distribute copies or phone records of the work to the public by sale or other transfer of ownership or by rental, lease or lending. e. To publicly displays the work in the case of literary, musical, dramatic and choreographic works, pantomimes and pictorial, graphic or
f. First Owner of Copyright

The author of a work is the initial owner of the copyright. In case of joint work, the authors of a joint work are co-owners of a single copyright in the work. Ownership of copyright in a collective work; A collective work is a collection of independent, or separate copyright works then, the author is the owner in the absence of any agreement.

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Registration of Copyright Copyright in United States automatically attaches upon the creation of an original work of authorship. Registration with the copyright puts the copyright holder in a better position if litigation arises over the copyright registration is necessary to obtain statutory damages in case of infringement. To register, the registrant must complete an application form and send it, along with the filing fee and copies or phone records of the work to the copyright office. Duration of Copyright Works created in or after 1978 are extended copyright protection for a term defined as 70 years after the death of the author. If the work is for hire then copyright persists for 120 years after creation or 95 years whichever is shorter after publication. Rights of the Owner The owner can assign the work to any person for further work, it is an exclusive right and exclusive license require the transfer to be in writing. Infringement It requires a protected work, that the dependent copied the protected work, that the dependants copying of the protected. Only protected works that the infringed can be claimed remedy for infringement. Remedies Civil remedies include injunctions and damages. Injunction may be both preliminary and permanent. Damages give choice of recovering i) their actual damages and any additional profits of the defendant; ii) statutory damages equitable relief can be claimed and both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright. Where the infringer is government then injunctions are not available and only monetary damages can be seeked.

Criminal Penalties

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In addition to civil remedies the copyright act provides criminal sanctions for willful infringement a) a fine of not more than $500,000 or imprisonment for not more than five years or both for first offense; b) a fine of not more than Si million and imprisonment for not more than 10 years; or both for repeated offences. 2.4 COPYRIGHT LAW IN U.K The origins of Copyright Law in most European Countries like in efforts by government to regulate and control the output of printers. In England the printers known as stationers formed a collective organization, the stationers company. In the 16th century the stationers company was given the power to require all lawfully printed books to be entered into its register. Only members of the stationers could enter books into the register. This meant that the stationer's company achieved a dominant position over publishing in 17th century England. But the monopoly granted to the stationers company through the licensing Act 1662, came to an end when parliament decided to not renew the act after it lapsed. The long title of the statute as the world's first copyright statute if granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print. The 14 year copyright term could be renewed for another 14 if the author was still alive after the first term expired. Authors Rights The statute was the first to recognize the legal right of authorship, but it did not provide a coherent understanding of authorship or author's rights. While the statute established the author as legal owner, and so providing the basis for the development of authors copyright. It also provided a 21 year copyright term to books already in print. At the end of the 21 years granted by the statute the concept of literary property was still a booksellers rather than author, an understanding emerged that copyright originated in author's rights to the product of his labour. In the 200 years following the statute of Anne UK copyright law was developed through legislations.

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Berne convention for the protection of literary and artistic works. UK signed Berne Convention and passed the international copyright act 1886 for Great Britain in order to fulfill the obligations to foreign authors that arose upon the UK ratifying the Berne Convention on September 1887. An orphan work is a work which is under copyright protection, but it is difficult or impossible to contact the copyright owner. The original creator may be unknown, or where the creator is known it is unknown who represented them. In 2008 the libraries and archives copyright alliance stated that it believes that the majority of copyright works have little commercial value after a few years from publication because the material was out of print, or sales were negligible or not significant. It describe the orphan works problem as "unsurprising" since if a copyright remains valuable the holder has a strong incentive to make him or herself known, while if the copyright has little value the holder has no real incentive even to respond to enquires. In U.K. copyright tribunal should be responsible for granting licenses for the use of orphan works. 2.5 COPYRIGHT LAW IN INDIA As the law is not static it has to be changed, according to the changes in the society. So also copyright law also changed in order to suit the changing needs of the society. Hence many amendments have been made the copyright act till now from the date of enactment. Now amendment of copyright bill 2010 is pending. The amendments made to copyright act in India are discussed below. The 1914 Act The 1914 Act was a short statute of fifteen sections which annexed virtually the whole of the U.K. copyright 1911 as its first schedule. It made a few minor omissions. The major changes made by the 1914 Act were, in this writer's opinion, first, it introduced criminal sanctions for copyright infringement (Sections 7 to 12). Second, it modified the scope of the term of copyright; under section 4 the "sole right" of the author to "produce, reproduce, perform or publish a translation of the

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work shall subsist only for a period of ten years from the date of the first publication of the work.The author, however, retained her "sole rights" if within the period of ten years she published or authorized publication of her work a translation in any language in respect of that language. Vesting violations or property rights with criminal sanctions can probably be understood as a part of general colonial legal and political policies which sought to protect, generally, right to property over rights to personal freedom.6 The modification of term of copyright for translation rights cannot be explained by any reference to dominant characteristic of colonial policy. The language of the Act might suggest a laudable policy of promoting wider diffusion of Indian works in one language into other Indian languages, a consideration which might have appeared distinctive to India as compared with U.K. There might also have been the desire to promote the growth of publication industry in numerous Indian languages. But whatever the intention, the impact was disadvantageous to the authors and a boon to publishers. This can be seen from the following observations in a hot of dissent when the continuation of the same provision was urged by the joint select committee of the Indian parliament in 1956. R.D. Sinha "Dinker" argued that this provision has "worked to the utter detriment of the authors". Referring to the two distinguished Bengali authors he observed Most of the novels by Sarat Chandra Chatterjee were translated in Hindi, while the author was yet alive. The author's novels, in translation sold thousands of copies, but the author did not get a pie out of the sake- proceeds... Something like this happened in the case of Gurudeva (Tagore). Publishers in Hindi and other languages were making good money out of the translations of his works, but the poet, revered by the nation, was in his extremely old age touring the country for money to support the Shanti- Niketan.7 It appears that mostly the Hindi language publishers benefited a great deal from the modification of the term of copyright regarding the translations. This is not entirely devoid of political significance as Hindi was emerging as a dominant
6

This observation is borne out also by the general approach to protection of property rights in the great Indian codes in the late nineteenth century. 7 The report of the joint select committee, The Gazette of India Extraordinary, Pt.2, 3.2, P.907 (1956).

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language in Northern India. But it is idle to conjecture. A sociopolitical history of colonial copyright law must probe this aspect further. The early phases of the transplanted copyright law generated decisions like Macmillan V. Suresh Chander Deb8 and Macmillan V.R.C. Cooper9 which have become locus classicus of the law of copyright. At the same time it also generated a ouris dependencia Indian judicial decisions as well as forensic styles have had perforce to rely on UK recedents. The heavy hand of UK law still lies on Indian creative works despite the reformulation of the law in 1957. Judicial interpretation is perhaps most heavily influenced by U.K. precedents in the area of copyright law than in any other. The slavish imitation of foreign precedents has occasionally led intrepid Indian justices to remind the bar and the bench that the 1957 act is made by "a sovereign legislature of this land" and the its interpretation "must be based upon the object of the legislation and the language used" and that the "historical roots" of the Indian law in UK law of copyright should have no higher function than that of providing an "aid to thinking". It is hoped that his approach will prevail in course of time; and that the umbilical cord with the British judicial law would be served. The 1957 Act The 1914 act was continued with minor adaptations and modifications till the 1957 act was brought into force on 2 January 1958. The bill seeking to revise the entire law was introduced in the Rajya Sabha on 1st October 1955; the bill was enacted in about eighteen months time on 4 June 1957. The expedition and priority with which the law revision was accomplished is indeed remarkable, especially when we recall that the bill was introduced within a few years of attainment of independence and passed in the seventh year of the republic. Equal priority was attached to other domains of the intellectual property law; but their reformulation proved difficult and time consuming. 10

8 9

I.L.R., 1890, 17 Cal.1951. AIR 1924 P.C.75. 10 Equally high priority was attached to revision of the patent Act 191; the law was revised only in 1970. Upendra Baxi, Role of industrial property law in promoting indigenous inventive and creative activity (WIPO, 1980).

21

A number of factors impelled this early revision. First it was clear that continued existence of the 1911 act through the 1914 act was unbecoming to "the changed constitutional status of India". Second, the 1914 act did not accord with the 1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright Convention. Third, new and advanced method of communications rendered modernization of the law necessary. Fourth, the need for an "independent selfcontained law" was also felt in the light of the experience of the "working" of the 1911 Act, and more important, of "the growing public consciousness of the rights and obligations of the authors..."11 The Indian legislators had before them the report of the English Copyright Committee and legislative proposals based thereon; they had also before them the models provided, in their optional and obligatory features, by the relevant International Conventions, the select committee had evidence of twelve organizations, including the international confederation of societies of authors and composers (Paris), the performing right society (London), British Copyright Council and the Columbia Gramophone Company Ltd. The report of the select committee appears to be among the briefest in the annals of Indian parliament; 12but, in many senses, it made major innovations which were ultimately enacted. Perhaps the only significant matter, on which its proposals were not accepted, in view of powerful dissents referred to earlier, pertained to a ten year term of copyright for translations; the original proposal in the bill prevailed here over the committee's formulations. But the committee's views prevailed on other vital matters. For example, the original proposal of the bill to reduce the term of copyright for life of the author and twenty five years post-mortem was voted by the committee (despite a note of dissent) on the ground that India must fall in line with international conventions. The committee also negatives the bills proposal, on similar grounds, making registration of copyright a precondition for infringement proceedings.13 The Act, as it emerged, was not in any sense a replication of the English legislative proposals. In this sense, the 1957 Act was the first truly Indian legislation
11 12

See the statements of objects and reasons to the bill, Supra note (34 A). It comprises ten pages of majority report, and six notes of dissent totaling seven pages. 13 Misra Bandhu Karyalaya Vs. Koshal, AIR 1970 M.P. 261 to 267.

22

'imperial' law. The Act was not sufficiently far-sighted; it, for example, does not protect the right of the performers adequately. In many respects it is drafted in ways which make it meaningful only to judges and lawyers and sometimes after well over two centuries of the subjection to the not even to them. But the fact remains that the country had its own law of copyright for the first time in contemporary history. The general scheme and the principal features of the 1957 Act are as follows Chapter I, III, IV, V deal with copyright and its ownership; Chapter XI with infringement; Chapter IX with international copyright; Chapter X with registration of copyright; Chapter XI1-XIV with civil and criminal remedies and Chapter II, VI, VII and X with powers and functions of the registrar of copyrights and the copyright board. A short special Chapter VIII deals with the rights of broadcasting authorities. The Act is divided into fifteen chapters and contains seventy nine sections. In addition, the government has enacted copyright rules under section 78 of the Act. The rules deals with matters of procedure primarily in matters like applications of licenses for translations, performing rights societies relinquishment and registration of copyright and related matters. In addition to the act and the rules, we must note that the government is empowered to make an order directing that any or all the provisions of 1957 act may apply to copyright in foreign works and in works of certain international organization. The orders are to be laid before parliament and subject to modification by it. The orders have to be published in the government gazette. The 1957 act makes certain administrative arrangements for implementation. It creates, for the first time, two distinct institutions; the copyright office and the copyright board. The ministry of education and social welfare is the administrative ministry overseeing the copyright office. A principal function of the office is to maintain, in all relevant particulars, a register of copyright; to entertain and deal with applications for compulsory licenses and to inquire into complaints of importation of infringing copies. The registrar performs judicial functions in relation to these tasks; and an appeal is provided from his decision to the copyright board. The Board has a number of essential functions under the Act. All of them involve determination of claims of reveal rights and liabilities; the joint select 23

committee on the bill was right to insist that the board should be headed by a chairman who is a "judge of Supreme Court or a high court" or is so qualified to be a high court judge. The principal functions of the board are to consider and determine. 1. Whether any literary, dramatic, musical or artistic work, or records, are issued in "sufficient quantities" with in the meaning of section 3[section 6(a)]; 2. Whether the term of copyright is shorter in any other country as compared to the term provided under the Act [section6(b)]' 3. Application for licenses to produce and publish a translation of literary or dramatic work in any language [section 32]; 4. Complaints that certain copyright works are unreasonably withheld from public [section 31]; 5. Objections of tariff of fees, charges and royalties announced by performing rights societies [section 33-36]. 6. Rectification of the register of copyrights [section 50], The Board is required to circuit in zones in various parts of India; and individuals may file proceedings in the appropriate zones where they voluntarily reside or carry on business or work for personal gain. An empirical investigation of the work load and characteristics of its decision - making process, is over due, because both institutions have been specifically created with a view to assisting authors; it is important in any design of revision of the law to ascertain to what extent this objective has been specifically created with a view to assisting authors; it is important in any design of revision of the law to ascertain to what extent this objective has been actually attained in practice.14 AMENDMENTS TO THE ACT The basic features of the Copyright Act, 1957 conform to the provisions of the two International Conventions on copyrights, namely (i) Berne Convention
14

Copyright Law and justice in India (1986), J.I.L.I, 498-504, No.4, Vol.28.

24

and (ii) The Universal Copyright Convention. India is a member of both the Conventions, which were revised at Paris in 1971. It provides certain special concessions in favour of developing countries to enable them to grant compulsory licenses for translation and reproduction of foreign works required for educational purposes in accordance with the prescribed procedure. India played an important role in the discussions leading to the concession.15 a. 1983 Amendment In August 1983, the parliament of India enacted the

Copyright (Amendment) Act, 1983 with the specific purposes of (a) incorporating the provisions of compulsory licenses for translations and reproduction. 1. Kala Thairani, copyright The Indian experience, Allied publishers, 1987 pp.41-43 foreign works required for instructional purposes. Providing adequate protection of author's rights; and Removing administrative drawbacks and other lacunae experienced in the administration of the Copyright Act, 1957. The bill provides, among other things, for the following amendments the Act to give effect to the above proposals, namely 1. To provide compulsory licensing for the translation of a foreign work after the expiry of three years from the publication of the work and if the translation of the work is in a language not in general use in any developed country, after the expiry of a period of one year from such publication if such work is required for the purposes of teaching, scholarship or research. 2. To provide for the compulsory licensing of the reproduction of any edition of a foreign literacy, scientific or artistic works for the purposes of systematic instructional activities if, after the expiry of certain periods (which will vary depending on the subject-matter of the works) from the date of the first publication of that edition, the copies are not available in India for the same or similar work.
15

Kala Thairani, Copyright The Indian Experience, Allied Publishers, 1987, P.41-43.

25

3.

It is proposed to provided that in the case of unpublished works where the author is either dead or unknown or the owners of the copyright cannot be traced, any person wishing to publish the material or a translation thereof may advertise his proposal and thereafter apply to the copyright Board for permission which, while granting such permission, would fix and appropriate royally. The royally could be deposited in the public account of India.

4.

It is proposed to provide assignments of copyright from authors to publishers and to empower the Copyright Board to decide disputes arising out of such assignments which may extend to permitting the author to withdraw from the assignment.

5.

It is proposed to prescribe the term of copyright in works owned by bodies corporate as fifty years from the beginning of the calendar year next following the year in which the work is first following the year in which the work is first published as in the case of government works.

6.

Broadcasting authorities are also being permitted to translate foreign works for broadcasting for the purpose of systematic instructional activities.

7.

To provide for copyright in lectures, addresses etc, delivered in public and for the publication of the entries made in copyright register.

b. 1984 Amendment As the piracy has become a global problem due to the rapid advances in technology and has assured alarming proportions all over the world, all the countries started to make efforts to meet the challenge by taking stringent legislative and enforcement measures. This problem of piracy and necessity for taking sufficient anti-piracy measures were also voiced by members of parliament at the time of the consideration of the Bill to bring in the 1982 amendment. In the contemporary world, mainly there are three types of piracy, namely (i). piracy of the printed word; (ii) piracy of sound recordings (iii) piracy of cinematograph films. The object of the pirate in all such cases is to make quick money and avoid payments of legitimate royalties and taxes. The emergence of new techniques of recordings, fixation and reproduction of audio programs, combined 26

with the advent of video technology have greatly helped the pirates. The loss to government in terms of tax evasion also amounts to cores of rupees. In view of those circumstances, it was proposed to amend the Copyright Act, 1957 to combat effectively the piracy that is prevalent in the country. The Bill of the proposed 1984 amendment contained the following objects
1.

To increase the punishment provided for the infringement of the copyright, namely, imprisonment of 3 years, with a minimum punishment of imprisonment of 6 months, and a fine upto Rs. 2 lakhs, with a minimum of Rs. 50,000/-

2.

To provide for enhanced punishment in case of second and subsequent convictions.

3.

To provide for the declaration of the offence of infringement of copyright as an economic offence so that the period of limitation provided in the code of criminal procedure, 1973, for offences will not be applicable to this offences;

4.

To specifically make the provisions of the Act, applicable to video-films and computer programs;

5.

To require the producers of records and video films to display certain information in the record, video films and containers, thereof. This 1984 Amendment came into force on 08-10-1984 immediately thereafter; several writ petitions seeking a stay of amending law were filed in a number of high courts across the country and in the supreme court of India. On an appeal filed by the aggrieved applicant in film Federation of India Vs Union of India,16 a Division Bench of the High Court dismissed the appeal and observed "A legislative enactment is intended to give effect to some policy and implement it private litigants or persons who happen to be beneficiaries of such a policy enacted in the form of legislation can really have no say in a matter which is
16

AIR 1986 Mad.43 at P.65-67.

27

exclusively within the domain of the government activity. It is primarily and wholly for the government to support its own legislation though in case the court wants some assistance the court can permit a party to intervene but that is for the limited purpose, of assistant to the court for deciding the dispute before it " Where the validity of a statute ............... is challenged a private litigant who happened to be the beneficiary of the policy envisaged under the Act cannot be allowed to be joined as a party because what is sought to be done is not to put the law in motion but to make an attempt to defend a legislation, to which government alone was necessary party to support its own legislation." The Court refused to accept as a principle that a beneficiary of a statute is entitled to be heard in addition to the state or Union government as the case may be in support of a statutory enactment. c. 1994 Amendment It was observed that the anti piracy provisions incorporated in the 1984 amendment had not worked effectively, a working group was set up in 1987 by the government to study the provisions of the Act and to recommend suitable amendments, taking into consideration the advances made in communication technology such as video, satellite and other means of simultaneous communication and to fulfill India's obligations as a signatory to the Berne convention and the Universal Copyright Convention. In July 992, the copyright Bill was introduced in the parliament. The purposes of the proposed legislation were explained as under. "Effective copyright protection promotes and rewards human creativity and, in modern society, an indispensable support for intellectual, cultural and economic activity copyright law promotes the creation of literacy, artistic, dramatic and musical works, cinematograph films and sound recordings by providing certain exclusive rights to their authors and creators. The law relating to copyright and related rights has been under comprehensive review of the government for some time, taking into account the difficulties expressed by different groups of copyright owners and others, the experience gained from the administration of the existing law

28

and the situation created by various technological developments that have taken place". Salient features of 1994 Amendment The amending act provided for (i) performers rights protection covering any visual or artistic presentation made live by one or more performers, (ii) copyright societies, seeking to promote collective administration of the rights of authors, composes and other creative artists, (iii) Assignment of copyright by an author or artistic to protect the interests of both assignor and assignee; and (iv) Computer programs, cinematograph films and sound recordings; protection. A large number of the provisions in the amending legislation are self-explanatory and clarificatory in nature. d. 1999 Amendment The Copyright Act was again amended in 1999 which

amended definition of 'literacy work', meaning of copyright in respect of a computer program, increased the term of copyright of performers from 25 to 50 years, inserted certain Government to apply the provisions relating to Broadcasting organizations and performs to broadcasting organizations and performers in certain other countries, and power to restrict rights of foreign broadcasting organizations and performers.

CHAPTER-3 COPYRIGHT - ANALYSIS OF THE LAW Section 14 of the 1957 Act defines copyright as an "exclusive right by virtue of and subject to the provisions of this Act" to do and authorize doing of any number of prescribed acts in relation to literary, artistic, dramatic works and to the cinematograph films and records". In general, copyright protection can be secured for all binds of creative works (literary, artistic, musical and dramatic works and so on). However, the U.S.

29

copyright code, title 17, section 5, lists the following classes of works that can be copyrighted 17
1) Books, including composite and cyclopedic works, dictionaries, gazettes and

other compilations.
2) Books including composite newspapers. 3) Dramatic or dramatic-musical compositions. 4) Lectures, sermons, addresses (prepared for oral delivery) 5) Musical compositions 6) Maps 7) Works of art; models or designs for works of art 8) Reproduction of a work of art 9) Drawings for plastic works of scientific or technical 10) Character 11) Photographs 12) Prints or pictorial illusions, including prints or labels 13) Used for articles or merchandise 14) Motion picture photoplays 15) Motion pictures other than photoplays 16) 17)

Sound recording Sculptures

18) Audio-visual works

17

William Z. Nasri Crisis in Copyright Marcel Dekker, Inc., New York.

30

19)

Web pages and computer programs. Almost all works created after 1978, even those with no mention of copyright,

have copyright protection. 3.1 MEANING OF COPYRIGHT Copyright is defined in the concise oxford dictionary as "the exclusive right given by law, for a certain term of years, to an author, composer etc. (or his assignee) to print, publish and sell copies of his original works". The moral justification for providing legal protection is based as on the principle that a man is entitled to the fruits of his brain as much as he is entitled to the fruits of his mechanical labour. The universal declaration of human rights says "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". The unabridged Webster's third international dictionary defines a photocopy as "a negative or positive photographic reproduction of graphic matter (as drawing or printing)". The oxford English dictionary defines "copying" as "the action of the verb copy". It also defines "copy" as "an imitation of anything; a reproduction of an original and in a sense, copy reflects plenty and abundance (copious quantity)".18 Black's law dictionary defines "copy" as a transcript or a double of an original writing.19 Copying can be done by hand or by a machine. The first mechanical duplicator of documents was invented late in the 19th century by Thomas Alva Edison. Mr.Dick of A.B. Dick Company of Chicago a former lumberman, who became bored with copying his price list by hand, obtained the rights to produce and market Edison's mimeograph.20
18 19

Oxford English Dictionary, Oxford Clarendon press, 1933, Vol.11, P. 978-979. Blacks Law Dictionary, 6th ed. St. Paul West 1951, P. 405. 20 John Brooks, Profiles Xerox Xerox Xerox Xerox The New York 63 46 (April 1, 1967).

31

The Oxford English Dictionary21 provides several definitions for the work "copy" (to imitate, without reference to an original, and so forth). It also defines "copy" as "plenty", abundance. The same dictionary makes it clear that during the middle ages there was an area of deceit associated with the work "copy". From the late 16th century until Victorian times "copy" and "counterfeit" were almost synonymous. It was also a favorite Victorian habit to call a person a "pale copy" of another. On the other hand, Black's Dictionary defines copy as "a transcript or a double of an original writing.22" And as it related to the law of copyright, a copy is "a reproduction or duplication of a thing or that which comes so near to the original as to give to every person seeing it the idea created by the original."23 The commercial interest of book publishers had called for a "copyright"24 and much the same applied to artistic works. But in the arts of drama and music, exploitation occurred as much through performance as through the sale of copies. Play wrights, composers and their commercial associated sought a "use" right upon each public performance of the work. In 1833 this distinct performing right was given in dramatic works 25 and in 1842 extended to musical works. The 1911 Act gave the producers of sound recordings their own exclusive right to prevent the reproduction of their recordings (and as the courts later held, also to prevent public performances of them).26 Copyright protection gradually expanded to cover other domains of intellectual creation like sculpture, architecture, choreography and broadcasting. Section 14 of the 1957 Act defines copyright as an "exclusive right, by virtue of and subject to, the provisions of this Act "To do and authorize doing of any number of prescribed acts in relation to literary, artistic and dramatic works and to cinematograph films and records. Despite this clear formulation, judges and jurists often speak of copyright as a kind of "negative right", which is both in accurate and
21 22

Oxford English Dictionary, Oxford Clarendon press, 1933, Vol.11, P. 978-979. Blacks Law Dictionary, 4th ed. St. Paul, Minn; West 1951, P. 405. 23 Mc Connor V. Kaufman, 49, F. Supp, (S.D. New York, 1943), P. 738-744. 24 Back V. Longman(1777), COW, P. 623. 25 Copyright The development and exercise of the performing right (1980), Chap.3-5. 26 CA 1911, S. 19(1); Gramphone Co. V. Cawardine (1934), Ch.450.

32

misleading. It bears reiteration that the set of rights subsumed under the rubric "copyright" is primarily defined in affirmative and positive sense; copyright constitutes property rights in personam and in rem, violation of which can be redressed under the provisions of the Act. It is also important to stress at the outset that copyright is defined as a statutory right, owing its existence and stature within the four corners of the Act. The rights of authors of literary, artistic, dramatic and musical works, cinema films and records are in some respects similar; The meaning of copyright, for each category of work, is quite extensive especially when we note that the definitions of most genres of work is inclusive rather than exhaustive and that copyright protection extends to all kinds of work including those which represent "originality at vanishing point".27 Even so the Act be section 15 specifically excludes designs which is capable of being registered under the Indian patents and designs act 1911.28 This exclusion is understandable. What is not so readily understandable is the fact that by necessary implication it is legally permissible to register or claim a copyright in a trademark, which is also capable of registration as a trademark, receiving thus dual protection. Since the registration of copyright is relatively simple and expeditious process as compared with trademarks, the office of the registrar of copyright is inundated with registration application for copyright in marks as "literary" or "artistic" works. Besides-concurrent registration of both trademark and copyright in relation to the same matter often causes understandable, but avoidable, judicial confusion where, for example, standards apt for judging passing-off action for marks tend to rub off to the determination of copyright infringement in the same proceedings.29 Time is certainly ripe for Indian Parliament to provide for exclusion of trademarks from the scope of Sec.15 of the Act. Definition of Copyright
27 28

Govindan V. Gopalakrishnan, AIR 1955 Mad. 391 to 393. Copyright in a design capable of being registered under the patents and designs act shall cease as soon as the article to which the design is applied has been reproduced by an industrial process (Sec.15(2)). 29 Khemraj V. Garg 7 Co., AIR 1975 Delhi 135.

33

Section 14 of the Act gives a comprehensive definition of term "copyright". Sec.14 "Copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part there of namely a) In the case of a literary, dramatic or musical work, not being a

computer program,
i) to reproduce the work in any material form including the storing of

it in any medium by electronic means;

ii) to issue copies of the work to the public not being copies already in

circulation.
iii) to perform the work in public, or communicate it to the public; iv) to make any cinematograph film or sound recording in respect of

the work;
v) to make any translation of the work vi) to make any adaptation of the work vii) to do, in relation to a translation or adaptation of the work, any of the

acts specified in relation to the work in sub clauses (i) to (vi);

b) in the case of a computer program i) to do any of the acts specified in clause (a), ii) to sell or give on commercial rental or offer for sale or for commercial

rental any copy of the computer program. Provided that such commercial rental does not apply in respect of computer programs where the program itself is not the essential object of the rental;
c) in the case of an artistic work,

34

i) to produce the work in any material form including depiction in three

dimensions of a two dimensional work or in two dimensions of a three dimensional work;

ii) to sell or give on hire, or offer for sale or hire, any copy of the computer

program, regardless of whether such copy has been sold or given on hire on earlier occasions";
iii) to communicate the work to the public; iv) to is copies of the work to the public not being copies already in

circulation;
v) to include the work in any cinematograph film; vi) to make any adaptation of the work; vii) to do in relation to an adaptation of the works - any of the acts specified in

relation of the work in sub-clauses (i) to (iv);

d)

in the case of a cinematograph film

i) to make a copy of the film, including a photograph of any image forming

part thereof;
ii) to sell or give on hire, or offer for sale or hire, any copy of the film,

regardless of whether such copy has been sold or given on hire on earlier occasions.
iii) to communicate the film to the public; e)

in the case of a sound recording

i) to make any other sound recording embodying it; ii) to sell or give on hire, or offer for sale or hire, any copy of the sound

recording regardless of whether such coy has been sold or given on hire on earlier occasions.
iii) to communicate the sound recording to the public;

35

Analysis of Statutory Meaning The definition and meaning of copyright given under section 14 can be analysed as follows
i) It means an exclusive right. ii) It authorizes doing of different acts in different categories of works. iii) It means, in the case of literary, dramatic or musical work not being a

computer program The exclusive right

to reproduce the work in any material form including its storing. to issue copies of work to the public, if they are already not in circulation. to perform the work in public; or communicate it 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; and to do, in relation to a translation or an adaptation of the work, any of the acts mention here in above.

3.2 SUBJECT MATTER OF COPYRIGHT

36

37

Copyright in Literary, Dramatic, Musical and Artistic works Copyright subsists, under section 13, in three classes of works (a) original literary, dramatic, musical and artistic works; (b) cinematograph film; and (c) sound recording. The requirement of 'originality' mentioned in the section does not refer to ideas but to the manner and material forms of their expression. The word original does not mean that the work must be the expression of original or invented thoughts, but not copied from other work.30 Any thing written by an author by his own skill, labour and judgment, may have a copyright unless it is directly copied or evasively initiated from another's work.31 Rajasthan High Court had held that the 'original work' does not mean that the work must be the expression of original or invested thought. The requirement of 'originality' in Indian law, as elsewhere does not refer to ideas but rather to the manner and material forms of their expression.32 The objective of copyright, in India is stressed, not to 'create monopoly in ideas', rather, the protection aims at prevention of unlawful reproduction of dealing with the manner and material form in which ideas are expressed.33 Originality for the purpose of copyright law relates to the expression of thought but such expression need not be novel. What is protected is expression of thought the form, formulation, order, plan or arrangement of presentation as testifying to the investment by the author of mental faculties, skills, competence, craftsmanship, knowledge, labour and capital in the production of any work. In other works, the requirement of originality is an elliptical way of expressing the idea that the work should not be a substantial copy of another work; or more colorfully (but less precisely) it should not amount piracy (or to vary the usual metaphor a little, hijacking) of another's skill, competence, craftsmanship, labour and capital. In a sense, copyright law protects the author against dishonest and willful misappropriation or theft of the author's efforts. Obviously, then the notion of 'originality' does not even entail a modicum of novelty or creativity. The extent or amount of 'originality' in expression or material
30 31

Macmillan Company Ltd. Vs. K&J Co-Op, AIR 1924 PC 75 at P.83 Ibid at P.81. 32 N.T. Raghunathan V. AIR 1971, Bom 48; R.G. Ananda Vs. Delux Films, AIR 1978 SC 1613 at 1627 33 Ibid.

38

form may be very small but that small amount is protected by law.34 The law of copyright it has been well said protects originality even at "its vanishing point".35 Literary Works Literary work has been defined under section 2(o) of the act, as including the computer programs, tables and compilations including computer data bases. The judiciary interpreted the literary works as which is expressed in print or writing irrespective of the question whether the quality or style is high. In the case of University of London press Vs. University Tutorial press36 and also in an Indian case of Agarwal Publishing House Vs. Board of High School and Intermediate Education.37 The courts have held that even examination papers would fit in the definition of literary work, taking into account the expression of the idea in that work. To determine whether a literary work is capable of protection, the test is that of originality. Some illustrations of original literary works.
i. ii.

Dissertations. Writings, sermons and sayings of religious preachers.38 News paper telegrams, rules of games, rules of foot ball compilation and tallies for bridge parties.39

iii.

Dictionary involving considerable amount of labour, skill and judgment.40

iv. v. vi.
34 35

Examination question papers Head notes of law reports and other case reports. The analysis and presentation of facts in historical books etc.

Govindan V. Gopalakrishnan, AIR 1955 Mad 391 at 393 Ibid. 36 University of London Press Vs. University Tutorial Press, 1916 2ch.601. 37 AIR 1967 All 191. 38 Mavens Crafts S. Herbert (1980) RPC 193. 39 Under Sec.2(h) of the Act. Sec.2(ffc) of the Act for definition. 40 Satsang Vs. Kiran Chandra Mukhopathyay, 1990 Raj. S. Mohan lal Gupta Vs. Board of Education (1978)1 PLR 83.

39

Dramatic Works The "dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. The definition of 'dramatic work' a motion picture cannot be regarded as a piece of recitation or a choreographic work or entertainment in dumb show. The Bombay High Court has recently held that in Fortune films V. Dev Anand,41 in view of the specific exclusion of the cinema films ran the definition of a dramatic work, that an actor in a cinema film may not claim any copyright in his acting. Moreover such acting, the court held, does not fall within the categories "pieces of recitation", "choreographic work" or "scenic arrangement in a dumb show..." Performance of a film actor would not qualify as a dramatic work, it was held by Supreme Court's decision in Indian Performing Rights Society (IPRS) vs. Eastern India Motion Picture (EIMP)42 Musical Work Copyright protection in musical work, means a work consisting of music and includes any graphical notation of such work. Delhi High Court held that Musical work is not merely a combination of melody and harmony or either of them, it must be printed, reduced to writing or otherwise graphically produced or reproduced.43 Copyright in Computer Program In case of computer programs, copyright extends to
i)

Doing any of the acts like reproduction, storage and translation etc, which can be done in respect of the literary, dramatic or musical works; and

ii)

Selling or giving on hire, or offering for sale.

Artistic Works
41 42

AIR 1979 Bom.17. AIR 1977 SC 1443. 43 Gramaphone Co. Vs. Super Cassette Industries, 1996 PTC 252(Del)

40

Any colour, scheme or get up or layout or arrangement of any alphabets or features is undoubtedly an artistic work. The distinctive features including the style of the letters or alphabets are also capable of protection under copyright. 44 When once copyright is claimed under designs act then it cannot be claimed protection under copyright for artistic work. Artistic works cover a wide range of works i.e. painting, sculpture, drawing, an engraving or a photograph. The drawings and brochures prepared by a scientist or any other technical expert, all these works come under artistic works to claim protection they must be original of hire any computer program whether in circulation or not. Indian copyright act legislation is advanced in protecting the computer programs from piracy and it is possible through the Amendment in 1994. Computer program means a set of instructions, expressed in words, codes, schemes or in any other form including a machine readable medium, capable of causing a computer to perform a particular task or to achieve a particular result. It was defined under see 2(ffc) of copyright Act, Delhi High Court held in a recent case that list of clients and addresses designed by an advocate or law firm amounts to a computer data base, and it is protected under literary work under section 2(o) of copy right Act, 1957.45 Amendment of 1994 included the works of the film artist is protected under the head "performer's right".

Copyright in Cinematograph Film A cinematograph film includes sound track of a film and the sounds embodied in a sound track which is associated with the film. 46 Video tapes come within the

44

Glaxo India Ltd. Vs. Akay Pharma Pvt. Ltd., 2002(2) Ray 275. Microfibres Inc. vs. Giridhar and Co., 2006(1) Raj 301(Del). 45 Dilject Titus Vs. Alfred A. Adebare, 2006(3) Raj 112 (Del). 46 Indian Performing Rights Society Vs. Eastern Indian motion picture Association AIR 1977 SC 1443 at P.1450, See also Fortune Films International Vs. Dev. Anand, AIR 1979 Bom.17.

41

expression cinematograph film in view of the extended definition in the Act.47 Video films are deemed to be works analogous to cinematograph.48 Video and T.V. are cinematograph and both are instruments of representation of movie pictures or series of pictures and that are capable of use for the reception of signs, signals, images and sounds. Copyright protection extends to making a copy of the film, taking a photograph of any image forming part of the film. Selling, giving in hire or offering for sale or hire any copy of the film, irrespective of its earlier sale or hire, and communicating the film to the public. Copyright in Sound Recordings Sound recording means a recording of sound from which such sounds may be produced regardless of medium on which such recording is made or the method by which the sounds are produced.49 Singers, music composers and manufacturers and producers of audio and video cassettes normally become the victims of piracy in case of sound recordings. There are also sound recordings of musical, literary and dramatic works available in the form of "pre-recorded" phonograms, which are produced by the recording industry. Any "record" such as a tape, vinyl disc, compact disc, compact cassette, or other devices embodying sounds which are capable of being reproduced there from are protected copyright works. 3.3 OWNERSHIP OF COPYRIGHT The author of a work shall be the first owner of the copyright, ownership of copyright exists in literary, dramatic or artistic works, photographs, address or speech delivered in public, government work and work made or first published by or under the direction or control of any public undertaking. Ownership Of Copyright Author has been defined under sec. 2(d) of the Act, as
i)
47 48

In relation to a literary or dramatic works, the author of the work.

Entertaining Enterprises, Mad. Vs. State of Tamil Nadu, AIR 1984 Mad 278. Indian Performing Rights Society Ltd. AIR 1977 SC 1443. 49 Under Sec.2(xx) of the Copyright Act, 1957 as submitted by the Copyright Act, 1994 Sec.2, w.e.f. 10.05.1995.

42

ii) In relation to a musical work, the composer. iii) In relation to an artistic work other than a photograph, the artist. iv) In relation to a photograph, the person taking the photograph. v) In relation to a cinematograph film or sound recording, the producer; and vi) In relation to any literary, dramatic, musical or artistic work which is

computer generated, the person who causes the work to be created. In all these works author is entitled to the firs owner of the work. When the work is to be created. In all these works author is entitled to the first owner of the work. When the work is created by joint authors then both authors are entitled to the ownership if there is intellectual contribution by two or more persons. When the work is produced by the member of an undivided joint Hindu family, though he is a member of joint family copyright is vested only to that member who had produced it. Ownership in Government works, the government will be the first owner, unless there is an agreement to the contrary.50

Ownership of Copyright and rights of the owner Column A Genre a. Literary works Rights 1. Right to / reproduce the work in any material form S.14 (a)(i); (b)(i). 2. Right to publish the work S.14 (a)(ii); (b)(ii).
3. Right to make any adaptation of the work S.14

(a)(vii); b(iv).
50

Under Sec.17(d) of the Act.

43

4. Right to translate the work. b. Artistic works 5. Right to convert into music / record. i. Right to perform in public
ii. Right to broadcast the work iii. Right to adapt or copy the work. iv. Right to make a cinematograph film.

c. Dramatic works

v. Right to create sound track / recordings. i. Right to reproduce the work ii. Right to publish the work in the material

form.
iii. Right to make a cine film. iv. Right to adapt the work. i. Right to broadcast the work. ii. Right to perform the work in public iii. Right to make sound track or recording

d. Musical works

e. Computer Programs

iv. Right to copy the work. i. Right to use in literary work, drama artistic

work, music, engineering design. Sports / f. Cinematograph film games and others. Right to make a copy of the film. [S14(c) (i)] ii. Right to cause the film, in so far as it consists of sounds to be heard in public (S.14(c)(ii). iii. Right to cause the film, in so far as it consists of visual images, to be seen in public. iv. Right to communicate the film by radio diffusion S.14(c)(iv). v. Right to make any record "embodying the recording in any part of the sound track associated with the film by utilizing such
b. Sound recording

sound track" S.14(c)(iii). Right to make any other record embodying the same recording S.14(d)(i) ii. Right to "cause the recording embodied in the record to the heard in public". S.14(d)(ii). 44

iii. Right to "communicate the recording embodied h. In respect of all works in the record by radio diffusion" S.14(d)(iii). Right to total or partial assignment (S.18); testamentary disposition (S.20) and right to relinquishment (S.21). ii. Right "paternity" (that is, "right to claim authorship of the work" despite assignment, total or partial)
iii. Right to "integrity" in works (that is, right to

object to distortions, mutilations of work, which prejudice authors honour or reputation) (S.57). iv. Right to make sound track or recording 3.4 REGISTRATION OF COPYRIGHT In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is no a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following Registration establishes a public record of the copyright claim. Before an infringement suit may be filed in Court, registration is necessary for works of U.S. origin. If made before or within 5 years of publication, registration will establish prima facie evidence in Court of the validity of the copyright and of the facts stated in the certificate. If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorneys fees will be

45

available to the copyright owner in Court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner. Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired. Registration Procedures Original Registration To register a work, send the following three elements in the same envelope or package to Library of Congress Copyright Office 101 Independence Avenue SE Washington, DC 20559-6000 1. A properly completed application form. 2. A nonrefundable filing fee for each application. 3. A no returnable deposit of the work being registered. The deposit requirements vary in particular situations. The general requirements follow. Also note the information under Special Deposit Requirements If the work was first published in the United States on or after

January 1, 1978, two complete copies or phonorecords of the best edition, If the work was first published in the United States before January

1, 1978, two complete copies or phonorecords of the work as first published.

46

If the work was first published outside the United States; one

complete copy or phonorecord of the work as first published. If sending multiple works, all applications, deposits, and fees If possible, applications should be

should be sent in the same package.

attached to the appropriate deposit. Whenever possible, number each package (e.g. 1 of 3, 2 of 4) to facilitate processing. Renewal Registration To register a renewal, send 1. A properly completed application Form RE and, if necessary Form RE Addendum, and 2. A nonrefundable filing fee for each application. (See Note above). Each Addendum form must be accompanied by a deposit representing the work being reviewed. See Circular is, Renewal of Copyright. Complete the application form using black ink pen or type. You may photocopy blank application forms. However, photocopied forms submitted to the Copyright Office must be clear, legible, on a good grade of 8V * 11 white paper suitable for automatic feeding through a Photocopier. The forms should be printed, preferably in black ink, head-to-head so that when you turn the sheet over, the top of page 2 is directly behind the top of page 1. Forms not meeting these requirements may be returned resulting in delayed registration. Pre-registration Preregistration is a service intended for works that have had a history of prerelease infringement. To be eligible for preregistration, a work must be unpublished and must be in the process of being prepared for commercial distribution. It must also fall within a class of works determined by Register of Copyrights to have had a history of infringement prior to authorize commercial distribution. Preregistration is not a substitute for registration. The preregistration application is only available online. Special Deposit Requirements 47

A special deposit requirement exists for many types of works. The following are prominent examples of exceptions to the general deposit requirements If the work is a motion picture, the deposit requirement is one complete copy of the unpublished or published motion picture and a separate written description of its contents, such as continuity, press book, or synopsis. If the work is a literary, dramatic, or musical work published only in a phonorecord, the deposit requirement is one completed phonorecord. If the work is an unpublished or published computer program, the deposit requirement is one visually perceptible copy in source code of the fist 25 and last 25 pages of the program. For a program of fewer than 50 pages, the deposit is a copy of the entire program. For more information on computer program registration, including deposits for revised programs and provisions for trade secrets, request Circular 6L Copyright Registration for Computer Program.

If the work is in the CD-ROM format, the deposit requirement is one complete copy of the material, that is, the CD-ROM, the operating software, and any manuals (2) accompanying it. If registration is sought for the computer program on the CD-ROM, the deposit should also include a printout of the first 25 and last 25 pages of source code for the program. In the case of works reproduced in three-dimensional copies, identifying

material such as photographs or drawings is ordinarily required. Other examples of special deposit requirements (but by no means an exhaustive list) include many works of the visual arts such as greeting cards, toys, fabrics, and oversized materials (request Circular 40a, Deposit Requirements for Registration of Claims to Copyright in Visual Arts Material); automated databases (request Circular 65, Copyright Registration for Automated Databases); and contributions to collective works. For information about deposit requirements for group registration of serials, request Circular 62, Copyright Registration for Serials.

48

If you are unsure of the deposit requirement for your work, write or call the Copyright Office and describe the work you wish to register. Unpublished Collections Under the following conditions, a work may be registered in unpublished form as a collection/with one application form and one fee as a whole; The copyright claimant in all the elements and in the collection as a The elements of the collection are assembled in an orderly form; The combined elements bear a single title identifying the collection

whole is the same; and All the elements are by the same author, or if they are by different

authors, at least one of the authors has contributed copyrightable authorship to each element. An unpublished collection is not indexed under the individual titles of the contents but under the title of the collection.

Effective Date of Registration A copyright registration is effective on the date the Copyright Office receives all the required elements in acceptable form, regardless of how long it then takes the process the application and mails the certificate of registration. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving. If you apply for copyright registration, you will not receive an acknowledgement that your application has been received (the Office receives more than 600,000 applications annually), but you can expect A letter or a telephone call from a Copyright Office staff member if further information is needed or

49

A certificate of registration indicating that the work has been registered, or if the application cannot be accepted, a letter explaining why it has been rejected. Requests to have certificates available for pickup in the Public Information

Office or to have certificate sent by Federal Express or another mail service cannot be honored. If you want to know the date that the Copyright Office receives your material, send it by registered of certified mail and request a return receipt. Corrections and Amplifications of Existing Registrations To correct an error in a copyright registration or to amplify the information given in a registration, file with the Copyright Office a supplementary registration Form CA together with the filing. The information in a supplementary registration augments but does not supersede that contained in the earlier registration. Note also that a supplementary registration is not a substitute for an original registration, for a renewal registration, or for recording a transfer of ownership. For further information about supplementary registration, request Circular 8, Supplementary Copyright Registration.

Who may file an Application Form? The following persons are legally entitled to submit an application form

The author. This is the person who actually created the work or, if the work was made for hire, the employer or other person for whom the work was prepared.

The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. This category includes a person or organization who

50

has obtained by contract the right to claim legal title to the copyright in an application for copyright registration.

The owner of exclusive right(s). Under the law, any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term copyright owners with respect to anyone of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.

The duly authorized agent of such author, other copyright claimant, or owner of exclusive right (s). Any person authorized to act on behalf of the author, other copyright claimant, or owner of exclusive rights may apply for registration. There is no requirement that applications be prepared or filed by an attorney.

APPLICATION FORMS For Original Registration Form PA for published and unpublished works of the performing arts (musical and dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works) Form SE for serials, works issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely (periodicals, news papers, magazines, newsletters, annuals, journals, etc) Form SR Form TX Form VA For published and unpublished sound recordings For published and unpublished non dramatic literary works For published and unpublished works of the visual arts (pictorials, graphic, and sculptural works, including architectural works)

51

Form G/DN

A specialized form to register a complete months issues of a daily newspaper when certain conditions are met

Short Form/ SE and Specialized SE forms for use when certain requirements are Form SE/GROUP met

Short Forms TX, PA Short version of applications for original registration. For and VA further information about using the short forms, request publication SL-7. Form GATT Specialized form to register a claim in a work in which U.S. copyright was restored under the 1994 Uruguay Round Agreements Act (URAA). For further information, request Circular 38b For Renewal Registration Form RE For claims to renew copyright in works copyrighted under the law in effect through December 31, 1977 (1909) Copyright Act) and registered during the initial 28-year copyright term. Form RE Accompanies Form RE for claims to renew copyright in works copyrighted. Addendum Under the 1909 Copyright Act but never registered during their initial 28- year copyright term For Corrections and Amplifications Form CA for supplementary registration to correct or amplify information given in the Copyright Office record of an earlier registration.

For Group of Contributions to Periodicals

52

Form GR/CP

an adjunct application to be used for registration of a group of contributions to periodicals in addition to an application Form TX, PA, or VA.

How to Obtain Application Forms? See For Further Information You must have Adobe-Acrobat Reader @ installed on your computer to view and print the forms accessed on the Internet. Adobe Acrobat Reader may be downloaded free from Adobe Systems Incorporated through links from the same website from which the forms are available. Print forms head to head (top of page 2 is directly behind the top of page 1) on a single piece of good quality, 8V2 x 11 white paper. To achieve the best quality copies of the application forms, use a laser printer. Fill-In Forms Available Most Copyright Office forms are available on the Copyright Office website in fill in version. Go to www.copyright.gov/forms and follow the instructions. The fillin forms allow you to enter information while the form is displayed on the screen by an Adobe Acrobat Reader product. You may then print the completed form and mail it to the Copyright Office. Fill-in forms provide a clean, sharp printout for your records and for filing with the Copyright Office. Certifications and Documents Section These fees may be charged in person in the office or by phone addition certificates; copies of documents and deposits; searching, locating and retrieving deposits; certifications; and expedited processing. Public Information Office These fees may only be charged in person in the office, not by phone standard registration request forms; special handling requests for all standard registration requests; request for services provided by the Certifications and Documents Section when the request is accompanied by a request for special handling; search requests for which a fee estimate has been provided; additional fee for each claim using the same

53

deposit; full term retention fees; appeal fees; Secure Test processing fee; short fee payments when accompanied by a Remittance Due Notice; in process retrieval fees; and online service providers fees. Reference and Bibliography Section Requests for searches on a regular or expedited basis can be charged to a credit card by phone. Records Maintenance Unit Computer time on COINS, printing from the Optical Disk, and photocopying can be charged in person in the office. Fiscal Control Section Deposit Accounts maintained by the Fiscal Control Section may be replenished by credit card. See Circular 5, How to Open and Maintain a Deposit Account in the Copyright Office. NIE recordations and claims filed on Form GATT may be paid by credit card if the cart number is included in a separate letter that accompanies the form.

Search of Copyright Office Records The records of the Copyright Office are open for inspection and searching by the public. Moreover, on request and payment of a fee,* the Copyright Office will search its records for you. For information on searching the Office records concerning the copyright status or ownership of a work, request Circular 22-1 How to Investigate the Copyright Status of a Work, and Circular 23, The Copyright Card Catalog and the Online Files of the Copyright Office. Copyright Office records in machine-readable form cataloged from January 1, 1978 to the present, including registration and renewal information and recorded documents, are now available for searching from the Copyright Office. The Copyright Office is not permitted to give legal advice. If information or guidance is needed on matters such as disputes over the ownership of a copyright,

54

suits against possible infringers, the procedure for getting a work published, or the method of obtaining royalty payments, it may be necessary to consult an attorney. 3.5 RIGHTS OF OWNER OF COPYRIGHT The owners of the copyright enjoy many rights in respect of the artistic, dramatic and literary works and other subject matters of copyright. The owner of the copyright has a right to Assignment, Right to relinquish his copyright, right to grant licenses, Broadcast reproduction right, performers rights, special rights of authors and right to enter names in register of copyright and other incidental rights. Moral rights, Resale share right in original copies, Right to sue for infringement. Right of Assignment The owner of the copyright in an existing work or the prospective owner of the copyright in a future work has the right to assign copyright to any person. The copyright may be assigned either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part of the term. 51 There is an absolute freedom given to the owner of the copyright to enter into a contract of assignment. However in the case of assignment of copyright in any future work, the assignment will take effect only when the work comes into existence. The person who assigns the copyright is called assignor and the person to whom it is assigned is called assignee. After assignment the assignee becomes entitled to any right comprised in the copyright and will be treated as the owner of the copyright, in case of assignment of future works, the "assignee" includes the legal representatives, if the assignee dies before the work comes into existence. In case of joint ownership, rights are owned by different persons, assignment may be done by one person.52 Right of an author to relinquish copyright The author of a work has a right to relinquish all or any of the rights in the copyright in the work, by giving notice to the registrar of copyrights. The effect of such notice is that from the date of notice, all his rights cease to exist. However such relinquishment of all or any rights comprised in the copyright in a work, does not
51 52

Under Sec.18 of the Act. Susaiah Vs. Munaswamy, AIR 1996 Mad. 175 (1976).

55

affect any rights subsisting in favour of any person on the date of notice. In other words, a copyright owner can relinquish only those rights which he can, on his own without affecting the rights of other persons like assignees.53 Rights to grant licenses The owner of the copyright in any existing work may grant his interest in the right by license in writing signed by him. Even a prospective owner of the copyright in any future work may also grant license in respect of such work. Provided that license will take effect only when the work comes into existence. If the licensee of a future work dies before the work comes into existence, his legal representatives, in the absence of any contrary agreement will be entitled to the benefit of such license.54 A joint owner of a copyright can grant license or interest only with the consent of the other joint owner, if the consent was not given by one of the joint owners the he can sue the licensee for infringement of his right.55 The copyright Act, 1957 also provides compulsory licensing in works withheld from the public. Under section 31 of the Act, if the owner of copyright (a) has refused to republish work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public. (b) The owner of the copyright has refused to allow communication to the public by broadcast, of such work or the work recorded in such sound recordings. On terms which the complainant considers reasonable. Copyright Board, after giving reasonable opportunity to the owner of being heard and after holding such inquiry as it deems fit, may, if it is satisfied that the grounds of such refusal are not reasonable, compulsory license may be granted. This

53 54

Sec.21 of the Act. Under Sec.30 of the Act. 55 Na. Sahitya Prabhas Vs. Anand Kumar, AIR 1981 All 2000.

56

provision is invoked in the larger interest of the society. Similarly there is a provision for granting compulsory licensing in unpublished Indian works.56 Collective Right to control administration of owner's rights by copyright society Copyright society will control the rights of owners whose rights administers. The owner's approval would be necessary with regard to collection and distribution of fear and, utilization of amounts collected. Further the owners would be entitled to regular, full and detailed information concerning all the activities of copyright societies in relation to administration of their rights.57 Broadcast Reproduction Right Every broadcasting organization has a special right under the act, known as "broadcast reproduction right" in respect of its broadcasts, which subsists until 25 years from the beginning of the calendar year next, following the year in which the broadcast is made. If any person does any of the acts below, without the license of the owner, it would amount to infringement of broadcast reproduction right.58

a) re-broadcasting of the broadcast; or b) causing the broadcast to be heard or seen by the public on payment of

any changes; or
c) making any sound recording or visual recording of the broadcast; or d) making any reproduction of such sound recording or visual recording,

where the same was done without any license; or

e) selling or hiring to the public, or offering to do it, any sound recording or

visual recording. Performer's Rights Where any performer appears or engages in any performance, he will be entitled to a special right known as the 'performer's right' in relation to such
56 57

See Sec. 31-32 of the Act. Under Sec.35 of the Act. 58 Under Sec.37 of the Act.

57

performance, which subsists for 50 years from the beginning of the calendar ear next, following the year in which the performance is made. Similarly the performer's right will not be deemed to be infringed if its use is made for private use, bonafide teaching or research, or for reporting of Current events etc.,59 If the performance is recorded and thereafter exploited without the permission of the performer than the performer's right is infringed.60 Right to enter names in the register of copyright and other incidental rights The author or publisher of, or the owner, or any other interested person in the copyright was a right to make an application for entering the particular of the work in the register of copyrights.61 It is important to note that a person has an inherent copyright in an original composition or compilation without the requirement of registration.62 It is because the provisions contained in sections 44 and 45 of the Act are enabling provisions and they do not affect the common law right to see for infringement of the copyright.63 Now it is well established that registration of copyright is not necessary and it is not a condition precedent for maintaining a suit for damages for infringement of copyright.64 Special Rights of Authors Even after the assignment of the said copyright either wholly or partly, the author of a work will have a special right a) to claim authorship of the work; b) to restrain or claim damages in respect of any distortion, mutilation, modification done to his work before the expiration of his copyright, if such above mentioned acts would be prejudicial to his honour or reputation.65 The author's special rights are also called moral rights or droid moral. These are parallel to an independent of the author's economic rights.

59 60

Sec.39 of the Act. Neha Bhasin Vs. Anand Raj Anand; 2006(1) Raj 607 (Del). 61 Under Sec.45 of the Act. 62 Satsang Vs. Kiran Chandra Mukhopadhyay, AIR 1972 Cal.533 63 R. Madhuvan Vs. S.K. Nayar, AIR 1988 Ker.39. 64 AIR 1972 Cal 533, AIR 1981 All 200 and Manojah Cine Productions Vs. Sundarasan AIR 1976, Mad.22. 65 Under Sec.57 of the Act.

58

The Berne Convention in Article 6 directs the member states to protect the moral rights of authors. Which are (i) the paternity right i.e. the right to claim authorship of work and (ii) the integrity rights i.e.; the right to protect the honour and reputation. Right to sue for infringement Where copyright in any work has been infringed, the owners of the copyright will be entitled to all such remedies by way of
i) ii) iii)

Injunction Damages Accounts.66

CHAPTER 4 INFRINGEMENT OF COPYRIGHT Under section 51 of the Copyright Act, 1957 infringement of copyright has been explained. 4.1 WHAT IS INFRINGEMENT? Copyright in any work is deemed to be infringed in the following cases [Definition of infringement].
i.

When any person without a license from th4e owner of the copyright, or the Registrar of copyright or in contravention of the terms and conditions of a license so granted or of any condition imposed by a competent authority under the act;
a. does anything, the exclusive right to do which is conferred upon the

owner of the copyright; or

66

Under Sec.55 of the Act.

59

b. permits for profit, any place to be used for the communication of the

work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for behaving that such communication to the public would be an infringement of copyright; or ii. When any person
a. makes for sale or hire, or sells or lets for hire, or by way of trade,

displays or offers for sale or hire; or

b. distributes either for the purpose of trade or to such an extent as to

prejudicially affect the owner of the copyright; or

c. by way of trade, exhibits in public, or d. imports into India any infringing copy of the work.

4.2 WHAT CONSTITUTES INFRINGEMENT OF COPYRIGHT In order to constitute infringement of copyright two elements are essential
1. There must be sufficient objective similarity between the infringing work

and the copyright work.

2. Work must be the source from which the infringing work is derived, but it

need not be the direct source. 4.3 COMMON FORMS OF INFRINGEMENT Infringement of copyright in a work occurs when one or more of the following acts take place i.

Reproduction of the work in a material form;

ii. Publication of the work to the public iii. Communication of the work to the public iv. Performance of the work in public

60

v. Making of adaptations and translations of the work and doing any of the above

acts in relation to a substantive part of the work. 4.4 INFRINGING COPY Section 2(m) of the Copyright Act defines infringing copy. This section further explains that, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film will be deemed to be an "infringing copy".
i.

In relation to a literary, dramatic, musical or artistic, a reproduction of 1, except in the form of a cinematograph film;

ii. In relation to a cinematograph film, making a copy of the film on any medium by

any means;
iii. In relation to a sound recording, making any other recording embodying iv. In relation to a program in which a broadcast reproduction right subsists under

section 37, the sound recording or a cinematographic film of such program or performance.

If such copy, or sound recording, or reproduction as the case may be, is made or imported in contravention if the provisions of the Act. The copyright legislation in India follows the principle "what is worth copying is worth protecting".67 For some products with a view to deceive the purchasers and exploit and encash their good will in order to pass off their products as that of the plaintiffs. In such a case the plaintiffs are entitled to the grant of injunction prayed for.68 The main object for giving protection is to prevent the adoption of the colour scheme, get up lay out or other features either wholly or partly in such a manner that may create an impression or confusion or deception in the minds of the purchasing public as to source and origin of the products.69 4.5 PRINCIPLES FOR DECIDING INFRINGEMENT OF COPYRIGHT
67 68

Panacea Biotec Ltd. Vs. ELprags Pharma, 2002(2) Raj.160. Anil Gupta Vs. Kunal Das Gupta 2002(2) Raj.347. 69 Glaxo India Ltd Vs. Akay Pharma Put Ltd., 2002(2) Raj 275.

61

The Supreme Court (Anand V Delux films AIR, 1978; SC.1613) after considering a number of English Indian and American authorities had laid down the following principles in determing the copyright infringement.
a. There can be no copyright in an idea, subject-matter, themes, plots or

historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
b. Where the same idea is being developed in a different manner, it is manifest

that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the made of expression adopted in the copyright work. If the defendants work is nothing but a literal imitation of the copyright work with some variations here and there it would amount to violation of the copyright, in other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
c. One of the surest and safest tests to determine whether or not there has been

a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
d. Where the theme is the same but is presented and treated differently so that

the subsequent work becomes a completely new work, no question of violation of copyright arises.
e.

Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the co-incidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.

62

f. As a violation of copyright amounts to an act of piracy it must be proved by

clear and cogent evidence after applying the various tests laid down.
g. Where, however, the question is of the violation of the copyright of stage

played by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants ca by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work had expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved. To establish infringement it must be shown that the alleged infringing work closely resembles the original work and that use has been made directly or indirectly of the original work. The question of infringement may be resolved by comparing the two works as a whole and determining whether there is not merely an identity or a similarity or resemblance in some of the leading features or in certain of the details, but whether, keeping in view the idea and general effect created by the original, there is such a degree of identity or similarity as would lead one to say that the alleged infringement is a copy or reproduction of the original. Additions, omissions and modifications do not avoid infringement of copyright. Reproduction for the purpose of copyright includes colourable imitation. It is not an essential ingredient of infringement that the infringer had an intention to infringe. But some form of copying is required, direct, indirect or even subconscious. Subconscious copying generally occurs in music and perhaps poetry. Plagiarism is not considered infringement of copyright, thus if a film producer makes use of ideas, themes and incidents copied from other films he cannot be sued for infringement. 4.6 IMPORTATION OF INFRINGING COPIES

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Importation, of infringing copies into India is an act of infringement. But importing two copies of the work for the private and domestic use of the importer is allowed. If imported into India, there may be a chance of violation of copyright therein. If the owner of a copyright in any work feels that infringing copies of his work are being imported or likely to be imported into India he may request the registrar of copyright for an order not to import such copies of the work should not be imported into India. He may also authorize any person to enter any ship, dock or premises where any such copies may be found and examine them in collaboration with the customs authorities. If such copies are confiscated, they are to be delivered to the owner of the copyright. The word "import" in sections 51 and 53 of the Copyright Act means "bringing into India from outside India". It is not limited to importation for commerce only but also includes importation for transit across the country.70

In a notable judgment in penguin books Ltd, England Vs India Book distributors and others the Delhi high court dealt with the validity of issuing copies of titles of foreign books imported into India, by Indian distributors. The court held that even though the Indian distributors are not guilty of piracy or primary infringement, by importing the foreign books, when they issue copies of these titles for public distribution, they would be guilty of secondary infringement. In case of conflict between international law and municipal law, the municipal law prevails. Software piracy in India 68, 69, 70. 4.7 WHAT IS NOT INFRINGEMENT OF COPYRIGHT? A close imitation of an existing recording using alternate performs is not a copyright infringement. In case of musical record, it is only such record which embodies sound recording which amounts to infringement, but if another signal is created such. Software piracy

70

Under Sec.53 of the Act.

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In India, the copyright of computer software is protected under the Indian Copyright Act of 1957. Copyright protection for software with an individual author lasts for the duration of the author's life and continues for 60 years after the authors death. Government agencies such as the ministry of information Technology and the Ministry of Human Resource Development have played an active role in aiding the Indian law enforcement authorities in protecting software copyright holders. Software piracy in India According to Nascom, Software piracy involves the use, reproduction or distribution without having received the expressed permission of the software author. Software piracy comes in four common forms.
The first is end user piracy, and it occurs when users of software install the

software on more machines than they are entitled to under their license agreements.
The second is hard disk loading, and it occurs when computer dealers install

illegal copies of software onto computers prior to their sale.

The third is software counterfeiting, and it involves the illegal reproduction,

and subsequent sale of software in a form that nearly identical to the original product.
The fourth is internet piracy, and it occurs when individuals place

unauthorized copies of software on the internet for download. Protection of software An original software work does not have to be published in order to receive copyright protection. As soon as the piece of software is committed to a tangible medium, it automatically receives protection under Indian copyright law. However, authors of software have the option of registering their original work with the copyright office. Registration of software with the copyright office is not a requirement for receiving copyright protection, but it can be helpful in an infringement suit where proof of original authorship may be required.

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Remedies Indian Courts can take a variety of measures designed to grant relief to copyright holders whose rights have been infringed. One of these measures is ordering that all infringing copies - including master copies - be impounded and destroyed Another way that courts grant relief to copyright holders is through monetary compensation, which can consist of monetary damages, statutory damages, courts costs and attorney fees. Punishment Under Indian copyright act, a software pirate can be tried under both civil and criminal law. The minimum jail term for software copyright infringement is seven days; and the maximum jail term is three years. Statutory fines range from a minimum of 50,000 to a maximum of 200,000 rupees in case of version recording, it is not an infringement. The use of the word "records embodying the record" or the "record embodying the same record" clearly mean that it is only when the same signal has been kept, would there be a violation. Similarly frame or image which forms part of a film is not included in the Term 'photograph'. Thus using a theme/image similar to the popular T.V. Serial 'Kyanki Saas Bhi Khabi Balu Thi' produced by a telecast on star T.V. by the manufacturers of 'Tide' detergent powder for advertisement of a T.V. commercial with the title 'Kyun Ki Balu Bhi Kabhi Saas Banegi' was held not to be an infringement of copyright of star T.V.71 4.8 STATUTORY EXCEPTIONS The protection of copyright given to an owner or licensee is not absolute. It is subject to certain exceptions and restrictions. Section 52 of the Act gives a lengthy list of acts under the heading "certain acts not to, be infringement of copyright", which can be called as statutory exceptions to copyright infringement. For the purpose of easy understanding they have been discussed briefly as follows
1.

Fair dealing Under section 52 of the copyright Act, 1957, a fair dealing with a literary, dramatic, musical or artistic work but not being a computer program for the
71

In Star India Put Ltd. Vs. Leo Burnett India Put Ltd, 2003(2) Raj 518.

66

following purposes, does not amount to infringement of copyright. -

Private use, including research; and

Criticism or review, whether of that work of any other work. The court has determined that a substantial part of a literary, artistic, dramatic or musical work has been taken that any question of fair dealing arises. Once the question arises, the degree of substantiality is to say, the quantity and value of the matter taken, is an important factor in considering whether or not, there has been a "fair dealing". Further, in considering whether dealing with a particular work was fair, it would have to be considered, whether any competition was likely to exist between the two works. A fair criticism of the ideas and evens described in the books or documents would constitute "fair dealing" publication confidential information leaked by third party cannot constitute fair dealing for the purpose of criticism or review.72 For example in USA, copy right law has its 'fair use' provisions. In UK, 'fair dealing' is allowed in relation to a copyright work. It must be noted at once that has nothing to do with 'dealing' in a trade sense. It can be roughly equated to 'use'. Thus, fair dealing covers research or private study, criticism, review and reporting current events. The fair dealing provisions allow the copying or other use of the work which would otherwise be an infringement and in many circumstances the amount of the original work used is very relevant. It may be fair dealing to include 5 percent of another work for the purpose of criticism or review. It is not fair dealing to incorporate the whole of the other work. Because the proportion of work taken can be relevant to whether the second author can successfully plead the fair dealing provisions, if the part taken is not substantial, then there is no infringement of copyright and no need to rely on the permitted acts as illusory.73

2.

Making of copies / adaptation of computer programs for specific purposes The making of copies or adaptation of a computer program by the lawful possessor of a copy of such program from such copy for the purposes of utilizing the computer program for the agreed purpose, or for the purpose of making backup copies purely as a temporary protection against loss, destruction or damage, in
72 73

Civil Chandran Vs. Ammim Amma 1996 PTC 670(Ker) Beloff Vs Pressdram (1973) All. E.R.24. David Bainbridge, Intellectual Property 5th Ed.2002 P.166.

67

order to utilize the program for agreed purpose, would not amount to infringement of copyright in such computer program.74 Similarly the doing of any act necessary for obtaining information essential for operating inter- operatability of an independently created computer of an independently created computer program, with other programs, if such information is not readily available, would not amount to infringement.
3.

Reporting of current events A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events, in newspaper, magazine, or similar periodical, or by broadcast or in a cinematograph film or by means of photography would not constitutes infringement.

4.

Reproduction in connection with judicial proceedings The reproduction of a literary, dramatic, musical or artistic work for the purpose of judicial proceedings or for the purpose of a report of judicial proceedings would not come within the purview of infringement.

5.

Reproduction for legislative purposes The reproduction of a literary, dramatic, musical or artistic work in any work prepared by the secretariat of Legislatures, exclusively for the purpose of use of members, does not amount to infringement.

6.

Reproduction to make certified copies In accordance with any law and their supply is not infringement.

7.

Reading / Recitation of extracts from the literary works in public. 8. Publication for use of educational institutions

9. 10.

Reproduction by teacher or pupil in the course of instruction to the students. Performance in the course of activities in educational institutions of a literary, dramatic or musical work by the staff and the students of the institution or of a cinematograph film or a record is not infringement of copyright in such works.

74

This provision was inserted by the copyright (Amendment) Act, 1994.

68

11.

Making and using of sound recordings under certain circumstance and in enclosed rooms, or clubs not run for profit do not amount to infringement.

12.

Performance of literary works etc by an amateur club or society for the benefit of paying audience or for the benefit of a religious institution is not infringed.

13.

Reproduction of an article or current economic, political, social or religious topics in newspaper and magazines etc.,

14.

Publication of a public lecture delivered in public in a magazine, newspaper or other periodical is not a copyright violation.

15.

Making a maximum of 3 copies of books including pamphlets, sheet of music, map, chart or plan for use of a public library, museum or other institution, for the purpose of research or private study.

16.

Reproduction or publication of any matter published in official Gazette or reports of government commission or other bodies appointed by government.

17.

Reproduction of any judgment, or order of a court, tribunal or other judicial authority, not prohibited from publication. In terms of section 522(1) (0) of the Act reproduction of a judgment of the court is an exception to the infringement of the copyright.75
18. Production or publication of translation of Acts of legislature or Rules.

19.

Making or publishing of a painting, drawing, engraving or photograph of a work of architecture or its display.

20.

Making or publishing of a painting, drawings or photograph or engravings of sculpture or other artistic works permanently situated in a public place.

21.

Inclusion in a cinematographic film of any artistic work permanently situated in a public place. Eg documentaries on well known statutes, painting etc.
75

Eastern Books Company Vs. Navin J. Desai, 2001(1) Raj 20%.

69

All these acts do not constitute infringement of copyright; these exceptions to infringements listed in section 52(1) apply also to the doing of any act in relation to the translation of a literary, dramatic, or musical work or the adaptation of such work as they apply in relation to the work itself.

4.9 SPECIAL PROVISIONS RELATING TO SOUND RECORDINGS AND VIDEO-FILMS The 1984 Amendment to the Copyright Act, inserted a new provision in the form of Section 52-A, in relation to the sound recordings and video films. 76 This provision deals with the particulars to be included in sound recordings and video films. The object behind making such provision appears to be the fragile nature of the copyright in video films and audio-cassettes. As a result of this provision, no person should publish a sound recording in respect of any work unless the following particulars are given.
a. b. c.

The name and address of the person making the sound recording. The name and address of the owner of the copyright in such work; and The year of its first publication; Similarly, no person can publish validly a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited and on the video-cassette or other container there o f , viz
a. If such work is cinema, certified for exhibition under the provisions of the

cinematograph Act, 1952, a certificate granted by the Board of film certification.

b. The name and address of the producer of the video film and the details of the

necessary license and consent; and

76

The Copyright (Amendment) Act, 1984, Sec.4, W.e.f. 9.10.1984.

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c. The name and address of the owner of the copyright in such work

These particulars included in sound recordings and video films help the prevention of video-piracy and piracy and audio-cassettes.

4.10 DETERMINATION OF QUESTION OF COPYRIGHT INFRINGEMENT If there in no reservation to claim copyright in a work, no copyright can be claimed on the basis of mere fact that there is some printed matter but, has no claim of copyright, therefore for the better protection of copyright, the owner should claim reservation of copyright by a mark (c) or the expression 'copyright reserved' or 'copyright'.77 Infringement of copyright is a question of fact and it is a matter which can be established by evidence adduced before the trial courts. Therefore, unless there is evidence on the aspect of infringement of the copyright of the complainant, it would not be possible to decide whether there is infringement of copyright.78 4.11 LAY OBSERVER TEST Generally Courts of India follow the 'Lay observer test' to determine infringement of copyright'. According to this test, "whether or not there has been violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works should be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first if to the "lay observer" it would not appear to be reproduction, there is no infringement of copyright in the works. Earlier this view was upheld by the Kerela Hightcourt in R. Madhavan Vs S.K. Nayar,79 which held that dissimilar novels do not involve infringement of copyright. The Delhi high court laid down that the infringement of copyright has to be tested on the visual appearance of the drawing and the object in question. The

77 78

Lamba Brother Pvt. Ltd. Vs. Lamba Brothers, AIR 1993 Del.347. Garapati Prasad Rao Vs Parnandi Saroja, AIR 1992 AP 230 at P.233. 79 AIR 1988 Ker.39.

71

purpose of functional utility, efficacy of different parts and components of the object or the material of which they be made are relevant for the purpose of copyright.80 Enlargement of Law books from student edition to lawyers edition does not amount to infringement of copyright.81 Similarly play, drama or movie produced based on the true life incidents reported in newspapers, but in a quite different manner does not lead to the infringement of copyright. 82 Publishing notes from the syllabus prescribed by University is not infringement of copyright. 83 Making of replica of original picture84? Colourable imitation of work85 and unauthorized broadcasting to general public" amount to infringement of copyright.

80

John Richard Bardy Vs. Chemical process equipment Pvt. Ltd., AIR 1987 Del.272 at P.382.

81 82

Bharat Law House Vs. Wadhwa and Co. Pvt. Ltd., AIR 1988 Del.68. Indian Express Newspapers Pvt. Ltd. Vs. Dr. Jaymohan Mundhra, AIR 1985 Bom.229 popularly known as Kamala Case. 83 Ramesh Chowdhury Vs. Ali Mohd. Nowsheri, AIR 1965 J&K 101. 84 C. Cunnaih & Co. Cs. Balraj & Co. AIR 1961 Mad.111. 85 Fateh Singh Mahta Vs. O.P. Singhal AIR 1990 Raj 8.

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CHAPTER - 5 LEGAL PROTECTION OF COPYRIGHT IN INDIA AND JUDICIAL PERSPECTIVE Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author, however published works are eligible for copyright protection in the United States if anyone of the following conditions is met; On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national. Domiciliary, or sovereign authority of a treaty party, or is a stateless person wherever that person may be domiciled; or A treaty party is a country or intergovernmental organization other than the United States that is a party to an international agreement. The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or The work is a sound recording that was first fixed in a treaty party; or The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or 73

The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreement Act (URAA). Request Circular 38b, Highlights of Copyright Amendments contained in the (URAA-GATT), for further information.

The work comes within the scope of a Presidential proclamation.

5.1 PROTECTION OF COPY RIGHT Copyright protects original works of authorship that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works 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 recording 8. architectural works These categories should be viewed broadly. For example, computer programs and most compilations may be registered as literary works, maps and architectural plans may be registered as pictorial, graphic, and sculptural works. 5.2 SOME WORKS ARE NOT PROTECTED BY COPYRIGHT Several categories of material are generally not eligible for federal copyright protection. These include among others

74

Works that have not been fixed in a tangible form of expression (for

example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded) Titles, names, short phrases, and slogans; familiar symbols or designs;

mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents Ideas, procedures, methods, systems, processes, concepts, principles,

discoveries, or devices, as distinguished from a description, explanation. Or illustration

Works consisting entirely of information that is common property and

containing no original authorship (for example standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources). 5.3 SECURES OF COPYRIGHT Copyright Secured Automatically upon Creation The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration. See Copyright Registration. Copyright is secured automatically when the work is created, and a work is created when it is fixed in a copy or phonorecord for the first time. Copies are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. Phonorecords are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture sound tracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the work) can be fixed in sheet music (copies) or in phonograph disks (phonorecords), or both. If a work is

75

prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date. 5.4 COPYRIGHT PROTECTION ENDURES Works Originally Created on or after January1, 1978 A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the authors life plus and additional 70 years after the authors death. In the case of a joint work prepared by two or more authors who did not work for hire. The term lasts for 70 years after the last surviving authors death. For works made for hire, and for anonymous and pseudonymous works (unless the authors identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creating, whichever is shorter. Works Originally Created before January 1, 1978, but not published or Registered by that date These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978; the life-plus-70 or 95/120 years terms apply to them as well. The law provides that in no case would the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December, 31, 2002, the term of copyright will not expire before December 31, 2047. Works Originally Created and Published or Registered before January 1, 1978 Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28 th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. 76

Public Law 105, 298, enacted on October 27, 1998, further extended the renewal terms of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years. Public Law 102-307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office. Public Law 102-307 makes renewal registration optional. Thus, filing for renewal registration is no longer required to extent the original 28-year copyright term to the full 95 years. However, some benefits accrue to renewal registrations that were made during the 28 th year. For more detailed information on renewal of copyright and the copyright term, request Circular 15, Renewal of Copyright; Circular 15a, Duration of Copyright; and Circular 15t, and Circular, Extension of Copyright Terms. Any or all of the copyright owners exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed. 5.5 COPYRIGHT PROTECTION FOR PERFORMANCE RIGHTS Introduction Copyright is a form of intellectual property protection granted under the law to the creators of the original works of authorship. It is an exclusive right given by law for a certain term of years to an author, composer, etc., (or his assignee) to print, publish and sell copies of his original work. In India the first Copyright Act was passed in 1914. It was a replica of English Copyright Act of 1911 suitably modified to make it applicable to the then British India. Copyright (Amendment) Act, 1999. The Indian Copyright Act for a very long time did not recognize the rights of performers like musicians, singers, actors, acrobats, etc. It was only recently when the technological changes threatened the livelihood of performers that the law intervened to protect performers. In the year 1994, the Copyright Act was amended. The amendment introduced the recognition of the rights of the performer. These rights are 77 The Act, presently in force was legislated in the year 1957 and is known as Copyright Act, 1957 as amended by

called performers rights. Section 38 of the Copyright Act confers rights to performers like actors, dancers, jugglers, acrobats etc. Under Section 2 (qq) of the Act, Performer includes an acrobat, musician, singer, actor, juggler, snake charmer, a person delivering lecture, or any other person who makes a performance. Performance in relation to performers right means any visual or acoustic presentation made by one or more performers. For example, student performing in a school play is a performer within the meaning of Section 2 (qq) and his rights are well within the scope of protection accorded by Section 38. Rights of a performer under the copyright protection Act The performer has the exclusive right to do the following under the Copyright Protection Act 1. Right to make Sound Recording or Visual Recording of the Performance A performer has the right to make sound recording or visual recording of his performance under Section 1 (xx) of the Copyright Protection Act. He also has the right to authorize the recording of a live performance, and the exclusive right to make sound recording from which such sounds may be produced regardless of the medium on which such recording is made or method by which the sounds are reproduced. Copyright will subsist in a sound recording only if it is lawfully made. If the recording includes any material which is an infringement of any literary, dramatic or musical work, copyright will not subsist in the sound recording. Musical works and sound recordings embodying the music are considered separate subject-matter for copyright. The copyright in the recording of music is separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. Where the song has not been written down and the composer who is also the performer records the song two copyrights come into existence simultaneously, one for the music and one for the sound recording. 2. Right to Produce a Sound Recording or Visual Recording of the Performance; A performer has a right to produce sound recording or visual recording of his performance. He has the right to make copies of the recording, the right to issue

78

copies of the recordings to the public, the right to rent or lend copies. However, the recording must display following particulars. (a) (b) A copy of the certificate granted by the Board of Film Certification. The name and address of the person who has made the video film and a declaration that he has obtained the necessary license or consent of the owner of the copyright in the work for making the video film, and (c) (C) The name and address of the owner of the copyright in such work. Failure to comply with the above is a punishable offence. This is done with a view to check and detect piracy. 3. Right to Broadcast the Performance Performers also have the right to prevent their live performances being broadcast. Broadcast means communication to the public, (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds, and visual image, (ii) or by wire, and includes a rebroadcast. In case of program broadcast, which includes literary, dramatic or musical works or records in which independent copyright may subsist, broadcasting organization should obtain the consent or license of the copyright owners in the work in question. To communicate the Work to the Public otherwise than by Broadcast. Any other means to communicate the work to the public other than the broadcast. Infringement of performers rights; The Copyright Protection Act strengthens the rights of the performers by making certain provisions. Under this if any person without the consent of the performer, does any of the following acts, he will be deemed to have infringed performers rights. These acts include (a) (b) Sound recording or visual recording of the performance; or Reproduction of the sound recording or visual recording of reproduction for the purpose different from those for which performer gave his consent, 79

(c) (d)

Broadcasts the performance, and Communicate the performance to the public otherwise than by broadcast. However, the above Acts are said to be infringed by a person only when these

Acts are committed during the continuance of the performers rights. When a performer has consented to the incorporation of his performance in a cinematograph film the performer losses the right to complain of infringement of that performance which means he assigned his entire rights and that performance to the producer of the cinematograph film. Acts not constituting infringement of a performers rights The following acts do not constitute infringement of a performers right (a) Making of any sound recording of or visual recording for private use of the person making such recording or society for the purpose of bonafide teaching or research. (b) Fair dealing of experts of a performance in reporting of current events or for bonafide review, teaching or research or
(c)

Other act with any necessary adaptations and modifications which do not constitute infringement of copyright under Section 52. These acts are reproduction for the use of judicial proceedings Section 52 (1) (c), reproduction for the use of members of legislature Section 52 (1) (d), and the use in a certified copy in accordance with any law in force Section 52 (1) (e).

(d)

Use of sound recording or visual recording of the performance in the course of the activities of an educational institution if the audience are limited to the students, and parents and guardians of the students and person directly connected with the activities of the institution Section 52 (1) (ii).

80

The aforesaid can be done only with the sound recording or visual recording of the performance. Accordingly the making of a sound recording or visual recording for the aforesaid purposes cannot also be an infringement. Where copyright or performers right subsists in respect of any work or performance that has been broadcast, a license to reproduce such broadcast will require the consent of the owner of rights or performer, as the case may be, or both of them. Remedies against infringement of performers rights The following remedies may be availed in a suit against infringement of performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act.
(i)

Civil remedies Under civil remedies, the owner of the copyright, or

his assignee or his exclusive licensee or a legatee may obtain (a) injunction or (b) claim damages.
(ii) Criminal remedies

in addition to civil remedy the Copyright Act

enables the owner of the copyright to take criminal proceedings against the infringer. The offence of infringement of copyright is punishable with imprisonment which may extent from a minimum period of six months to a maximum period of three years or with a fine of the order of Rs.50,000/to Rs.2.00 lakhs.
(iii) Anton Pilar Order In appropriate cases the court may on an application by

the plaintiff pass an exporters order requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. The necessity of such an order arises where there is a grave danger of relevant documents and Infringing articles are being removed or destroyed so that ends of justice will not be defeated. 5.6 INTERNATIONAL COPYRIGHT PROTECTION There is no such thing as an International Copyright that will automatically protect an authors writings throughout the entire world. 81 Protection against

unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under For further information and a list of countries certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. that maintain copyright relations with the United States, request Circular 38a, International Copyright Relations of the United States. The above said discussion reveals that copyright is a form of intellectual property protection granted under the law to the creators of the original works of authorship. Copyright law confers exclusive right to performers like actors, musicians, jugglers, snake charmers, etc. to do certain acts. These rights conferred on the performers are a positive step in encouraging their creativity. 5.7 REMEDIES AGAINST INFRINGEMENT OF COPYRIGHT General When an author's copyright has been infringed, he can have recourse to all remedies which would be available to him under the general law relating to the infringement of a right. Copyright has been placed on par with an individuals other rights. E.g. The right to property, the right to enforce a contract, the right to restrain a person from doing anything to his determent, the right to damages based on tort or breach of contract etc. So, the author may bring a suit for injunction and ask the court to stop the printing, sale circulation etc., of his work. As the famous saying goes "Ubi jus, ibi remedium" which means, where there is a right, there is remedy. No man is at liberty to take away the result of another man's labour or his property.86

86

Macmilan and Co., Vs K&J Cooper Ldt., AIR 1924 PC 75 at P.83.

82

Nature and kinds of Remedies Therefore violation of copyright has different remedies. The Copyright Act, 1957 provides for three types of remedies for violation of copyright, namely.
1. Civil Remedies. 2. Criminal remedies 3. Administrative remedies.

Civil remedies include injunction, damages or account of profits, delivery up of infringing copies and damages for conversion. In case of innocent infringement some of these remedies are not available. Criminal remedies impose punishment to the infringer. Administrative remedies provides for the establishment of offices and institution like the Registrar of copyrights. Copyright Board and copyright societies etc, they also have certain powers to give certain remedies for violation of copyright. A part from the remedies against infringement of copyright the copyright act provides for the protection of certain special rights. An author of copyright work can restrain or claim damages in respect of
a. any distortion or mutilation of the work, or b. any other action in relation to the work which would be prejudicial to his

honour or reputation. The author can also exercise even after the assignment of the copyright. They can be enforced by an action for breach of contract or confidence, a suit for defamation or passing off as the case may be. In respect of architectural works, where the construction of a building or other structure which would infringe the copyright in some other work has been commenced the owner of the construction of such building or structure or to order demolition. He can also claim damages for conversion. In appropriate cases declaratory order may be obtained as to whether what the defendant is ding or proposes to do is an infringement of the copyright in a work. 83

Jurisdiction of courts A suit or other civil proceedings relating to infringement of copyright should be instituted in the District court having jurisdiction. A district court within the local limits of whose jurisdiction the person (s) instituting the suit or other proceedings, voluntarily resides or carries on the business or personally work for gain, at the time of the institution of the suit and other proceedings. The question of jurisdiction of court is a mixed question of fact and law. It cannot be decided at the time of interim injunction stage.87 The period of limitation for filing the suit is three years from the date of infringement. Parties to the suit for infringement Normally the owner of the copyright is the plaintiff. An exclusive licensee can also file a suit in which case the owner of the copyright must be made a co-plaintiff or defendant. Where the several rights conferred by a copyright in any work are owned by different persons, the owner of any such right, to the extent of that right, may enforce that right by civil or criminal proceedings. The following persons can sue for infringement of copyright. 1. the owner of the copyright or a co-owner. 2. the assignee of the copyright 3. the legatee in case of testamentary disposition of the copyright. 4. an exclusive licensee if the owner of the copyright is made a joint plaintiff or dependant. 5. in the case of anonymous or pseudonymous work the publisher of the work 6. a non-exclusive licensee provided he joins the owner of the copyright. We have seen that the owner of copyright in a work has the exclusive right to do a number of acts in respect of the work. These acts are enumerated in section 14 of the Copyright Act 1957. He can print, circulate and sell copies of the work if it
87

John Rchard Bardy Vs Chemical Process Pvt. Ltd. AIR 1987 Del.272-377. See also Tate Oil Mills Co. Ltd Vs. Reward Soap Works, AIR 1983 Del.286. Everest Picture Circuit, Salem Vs. S. Karuppannan, AIR 1982 Mad.244.

84

is a book, an article, a musical composition, a play or a picture, if the work is a play, he can arrange a public performance of it, and if the work be a cinematograph films, he can exhibit it in public or have it screened by his employees or agents. He can abridge, modify or translate the work into any language and publish the translation, he can make a sound recording of it, and communicate it by radio diffusion, and so an. He can also assign his rights wholly or in part to someone else; or grant a license in respect of it, specifying the acts which the licensee is permitted to do. But if anyone other than the owner of the copyright, his assignee or his licensee does, without authority, any of these acts, he contravenes the fights of the owner, the assignee or the licensee as the case may happen to be. He is then said to infringe copyright in the work and the infringement renders him liable under civil as well as criminal law. Infringement may be direct or indirect. However, in certain special circumstances which constitute exceptions to the general law, infringement, or the doing of an act which would ordinarily amount to infringement, is permitted by law. These exceptions are set out in section 52 of the Act. Direct infringement Section 52 lays down the general rule with regard to infringement. It states that when anyone, without a license, granted by the owner of the copyright or by the Registrar of copyrights does any of the acts which only the owner of the copyright is entitled to do, he infringes copyright. Also if a licensee does anything beyond the terms of his licensee who is permitted to publish only the original work publishes a translation of it into another language or exploits its film rights he will be infringing the owner's copyright. It is also an infringement of copyright in a play, a musical piece or a cinematograph film if any one allows it to be publicly performed in any place for profit. So, the owner or tenant of an auditorium who lets out the premises for such unauthorized performance or exhibition and makes a profit by the sale of tickets to those who come to watch the performance, will be infringing copyright, if however, he did not know that the performance was unauthorized and amounted to infringement of some one's copyright and he had no reasonable grounds for believing that to be the case, he will not be liable. The plea of ignorance will be a good defense to a civil suit for damages or a criminal charge for such infringement. 85

Indirect infringement The section also specifics certain acts which amount to indirect infringement of copyright, these are to make for sale or hire, to let out for hire, to display for purposes of trade, to offer for sale or hire infringing copies of a work, to distribute such an extent as to cause loss or injury to the owner of the copyright; or to import infringing copies of a work, except for the private or domestic use for the importer. A book seller who displays or sells unauthorized copies of a book, or the owner of a private lending library who lends such copies to his patrons for a fee, a person who exhibits a film which is an unauthorized reproduction of a novel or play, will all be infringing copyright in the work. Injunction Injunction is an order by the court directing a person to do or abstain from doing something. The dictionary meaning is a "Judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another, is restrained from commencing or continuing such act or is commanded to restore matter to the position in which they stood, previous to his action." The remedy of injunction which may be temporary or permanent is a matter within the discretion of the court. It will be granted when monetary compensation will not be adequate or when irreparable harm will result to the aggrieved person (plaintiff) if the injunction is refused. The discretion, of course, must be exercised in a judicial manner and must be based on well established judicial principles and not arbitrarily. The court must first be satisfied that the plaintiff does own the copyright in the work which has been alleged to have been copied or he is the exclusive licensee in respect of it. It must further be shown that he has been prompt and deli gent in seeking the remedy or injunction. A long and unreasonable delay will be a good ground for refusing the injunction prayed for as the delay may be interpreted as acquiescence. If, however it is shown to the court that the respondent intends to publish and circulate for sale a large number of copies of a work in which the copyright is owned by the plaintiff or a film which infringes the plaintiffs copyright is about to be exhibited, the court will grant an injunction. But if the court feels that the loss which will be occasioned by 86

the publication, circulation or performance of a work will be small or if the plaintiff can be adequately compensated by ordering the defendant to keep and submit accounts of all money and he will receive by exploiting the work, and then paying to the plaintiff what is legally due to him, the court will refuse to issue an injunction. A permanent injunction will be granted only after the rights of the parties have been adjudicated upon and finally settled by the court. A temporary injunction is granted, during the pendency of suit to guard against avoidable loss to the plaintiff while the suit drags out its long course. A plaintiff suing for damages, may at the same time, ask the court for the issue of a temporary injunction. Such injunction will be granted in appropriate cases. The broad principle which the courts follow is the balance of convenience, will the refusal of the injunction cause irreparable loss to the plaintiff or and the other hand, will the injunction cause more loss to the defendant than gain to the plaintiff. The making an application for a temporary or interlocutory injunction, the plaintiff must state that he is the owner of the copyright or the exclusive licenses in respect of the work in question, that his right has been infringed and that he will suffer irreparable loss if the continuance of the infringement is not stopped by means of a temporary injunction. It is not surprising that in the matter of injunction, as in all discretionary matters, a completely just and objective decision is not always achieved. The aggrieved party has, however, a right of appeal to a superior court, against the order granting or refusing to grant an injunction. In support of his application, the plaintiff can argue that the issue of a temporary injunction does not prejudge the issues involved in the case and it is not necessary for him to show that he must ultimately succeed in establishing his claim. All he is asking for the maintenance of the status quo, upon a prime facie showing that his right has been infringed and the infringement will continue unless stopped. If the court is disinclined to rant the injunction, the plaintiff should press for an order directing the defendant to keep accounts of sale of infringing copies and of money 87

received by him and further give an undertaking that he will compensate the plaintiff for the loss he will suffer by his acts of infringement, provided the plaintiff ultimately succeeds in obtaining a decree in his favour. Damages A suit for damages for the infringement of copyright is ordinarily based on the law of tort, though there may be instances in which the author- publisher contract specifies the quantum of damages to be paid in case of breach of any of the terms of the agreement. But this will be a rare occurrence. Rendition of Accounts In a suit for accounts; the plaintiff asks the court to order the defendant to render accounts of all money received by him, expenses incurred and profits made by the infringement of the plaintiff's copyright. A suit for accounts is a remedy distinct from a suit for damages. Author's Special Rights This right can be enforced by the author's legal representatives also. If the plaintiff feels that the act of the defendant is prejudicial to his honour or reputation. It is obvious that damage to the reputation of an author is something apart from the infringement of his copyright, the author may sold his copyright or assigned it wholly or partially but the public will continue to associate him with the work and if in printing or publishing it anyone mutilates it or alters it in such a way as to cast a reflection on the authors reputation as a writer or on his honour and integrity, he retains the right to vindicate himself. Recovery of infringing Copies One more remedy available to the owner of a copyright, in case of infringement; He can bring a suit to recover all infringing copies of the work and all plates used or intended to be used for the production of the infringing copies and he may recover damages from the person who has used the infringing of plates. Declaratory Suit

88

Section 60 of the Act provides that when anyone wrong fully claiming to be the owner of the copyright in a work threatens to take legal proceedings regarding infringement of copyright against another on the ground that other has infringed the copyright, the person so threatened may bring a declaratory suit. This means a suit in which he asks the court to declare that the alleged infringement is not in fact infringement at all, and that he has a perfect right to do what he is doing. In this suit he may also ask the court to issue an injunction to the false claimant that he cease uttering such threats and in addition pay damages. Criminal Proceedings Chapter XIII, in sections 63 to 70 deals with the offences in relation to violation of copyright. Criminal courts have been empowered to entertain and dispose of certain types of breaches of copyright and punish the wrong doer. Punishment for infringement imposed to the wrong door is minimum 6 months of imprisonment and maximum 3 years. Fine can also be imposed not less than Rs.50,000/- and upto Rs.2 lakhs.

The nature of offence and punishment prescribed can be understood by the table below

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S. No.

Nature of Offence

Provision of the Act

Punishment

Criminal Court having jurisdiction to try the offence

1.

Knowingly infringing or abetting the infringement of the copyright in a work, or any other work conferred by this Act (except in case of resale share right in original copier-under section 53A)

Sec. 63

Minimum- 6 months imprisonment Maximurn-3 years imprisonment + fine not less than Rs.50,000/- upto Rs.2 lakhs Imprisonment Minimum - f year Fine Minimum- Rs.llakh Maximum-Rs.2 lakhs

Not inferior to the metropolitan magistrate or a judicial magistrate of first class

2.

For second and subsequent Sec.63-A conviction

Not inferior to the metropolitan judicial magistrate of first class

Maximum - 3 years magistrate or a

3.

Knowingly using of infringing copies of computer programme

Sec.63-B

Imprisonment Minimum - 7 years Fine MinimumRs.50,000 Maximum-Rs.2 lakhs

Not inferior to the metropolitan judicial magistrate of first class

Maximum - 3 years magistrate or a

4.

Making false entries in register of copyrights etc, for producing or tendering false entries

Sec.64

Imprisonment upto 1 year, or fine or both

Not inferior to the metropolitan magistrate or a judicial magistrate of

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first class

5.

Making false statements for deceiving or influencing any authority/ officer

Sec.68

Imprisonment upto 1 year, or fine or both

Not inferior to the metropolitan magistrate or a judicial magistrate of first class

6.

Publishign a sound recording or a video film in violation of sec, 52A(video& audio piracy)

Sec. 68-A Imprisonment upto 3 years and fine

7.

Possession of plates/ other material used for making infringing copies

Sec.65

Imprisonment upto 2 years and fine

Offences by Companies Where a company i.e. a body corporate and including a firm or other association of persons, commits an offences under the copyright act, every person responsible to such company etc. for the conduct of the business of the company, at the time of commission of offence, will be liable for prosecution and punishment. 88 The individuals who may become liable are directors of companies, managers, secretaries and others.

Incidental powers of the Courts and Police

88

Under Sec.69 of the Act.

91

While acting on a complaint against any alleged infringement of copyright, the police investigating, acting under the direction of the competent court have the following powers i) ii)
iv)

to seize the infringing copies and other material.89 to order restoration of such copies/ material to the interested persons90 and to order disposal of infringing copies or plates used therefore.91

Offences by Companies etc Where a company i.e. a body corporate and including a firm or other association of persons, commits an offence under the Copyright Act, every person responsible to such company etc. for the conduct of the business of the company, at the time of commission of offence, will be liable for prosecution and punishment. 92 The individuals who may become liable are directors of companies, managers, secretaries and others. Administrative Remedies Other remedy that is available is administrative remedy with other civil and criminal remedies. It is known that copyright act provides for the establishment of offices and institutions like the registrar of copyright, copyright board and copyright societies etc, they also have certain powers to give certain remedies for the violation of copyright.93 5.8 JUDICIAL PERSPECTIVE The intellectual property law has been given official recognition by the international community with the establishment of WIPO, a specialized agency of the United Nations. In general the owner may use his property as he wishes and that no body else can lawfully use his property without his authorization. If any person interferes his
89 90

Under Sec.64 Under Sec.64 91 Under Sec.66 92 Under Sec.69 of the Act. 93 See the discussion on Institutions under the Act in the Proceedings pages.

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right to enjoyment then the person can move to court of law for relief. The courts make a study of the case and interpret the provisions and give decisions in according with law. Courts gave different decisions in different cases according to the merits of the cases; judiciary is protecting the interest of owner of the copyright. Judiciary always protects individual rights of people and it in turn protects the society. Judiciary follows the principles of natural justice. As the law is not static it has to be changed according to the changes in the society in order to suit the changing needs of society. Judiciary takes into consideration of the changes into society and makes rules and decide the cases accordingly. Judiciary maintains the balance between society and individuals. Courts always give importance to the individual interests and protect the individuals rights. Courts protects the individual rights of the persons in case of violation of his rights he can seek the help of courts to protect his rights and court some time awards damages to the infringer and some times it imposes punishment also. SOME CASE LAWS DECIDED BY SUPREME COURT AND HIGH COURTS Gramophone Company of India Ltd. Vs. Birendra Bahadur Pandey & others 1984 AIR 667 SC In this case the Supreme Court held that copies made out of India of a work which if made in India would infringe copyright shall not be imported.

Narration of Brief facts of the Case

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The copies of records and cassettes were dispatched from Singapore to Nepal and to Calcutta port. The appellant company suspected that those cassettes are unauthorized reproductions of its records and cassettes, the import of which into India was prohibited. The appellant company moved the registrar of copyrights for action under section 53 of copyright act, 1957, who enables the registrar after making such enquiries as he deemed fit, to order that copies made out of India of a work which if made in India would infringe copyright, shall not be imported. Pleadings of the Respondents The respondents counsel argued that the records were brought into the country not for commerce, but for onward submission to another country, they can, in law be no important, it was said that the object of the copyright act was to precious authorized reproduction of the work or the unauthorized explosion of the reproduction of a work in India, and the object would not be frustrated if infringing copies of a work were allowed transit across the country. If the goods are brought in only to go out, there is no import; it is difficult to agree with this submission thought it did find favour with the section 53. We have already mentioned the imported attached by the international opinion as manifested as manifested by the various international conventions and treaties, to the protection of copyright. In interpreting the word import in the copyright act, we must take note that while positive requirement of the copyright conventions is to protect copyright, negatively also. If this much is borne in mind, if becomes bear that the word import in Sec.53 of the copyright act cannot bear the narrow interpretation sought to be placed upon it to limit it to import for commerce. It is be interpreted in a sense which will fit the copyright act into the setting of international conventions. Judgment In this case the court stood on the side of the petitioners and held that a close intimation of an existing recording using alternate performance is not a copyright infringement. The court clearly differentiated whether there was importation of copies or not and in case of musical record, it is only such record which embodies sound recording which amounts to infringement, but if another signal is created such as in the case of version recording, it is not an infringement. Thus the use of the word 94

"records embodying the record" or the "record embodying the same record" clearly means that it is only when the same signal has been kept, would there be a violation. A. Susiah V. S. Muniswamy AIR 1966 Mad 175 The court held that assignment of any work, to be valid, should be in writing signed by the assignor or his authorized agent. Also that in case of infringement of copyright in respect of literary work of two joint authors, one of them who are aggrieved can maintain criminal action for the offence. Lamba Brothers Pvt. Ltd V. Lamba Brothers AIR 1993 Del 347 Plaintiff and defendants were carrying on business together at one time using trade mark ELBEE for the machinery manufactured by them. There was dissolution of partnership on 1-4-1985. That the two brothers carried on independent business. Infringement suit was based on a catalogue, which actually was only a coloured brochure having descriptive words, tables and photographs. There was no reservation claim of copyright in the brochure in any recognized method, i.e., by mark (C) or expression Copyright Reserved or copyright Lamba Brothers Pvt. Ltd. The Court observed that there must be compliance with the requirements of the Statute and claim to copyright made upon the copyright table material before any action in copyright can be sustained and perfected by statutory remedies. The suit was dismissed. Ratna Sagar (P) Ltd., V. Trisea Publications 1996 PTC (16) 597 The plaintiff was a publisher of educational books for children and claimed registered copyright in its book LIVING SCIENCE volumes 3, 4, 5 which were first published in 1986. The defendant No.1 was publisher of the UNIQUE SCIENCE. The plaintiff claimed that defendants publications were copied from its book and amounted to infringement of its copyright. The defendants contended that the plaintiff had not shown any proof of ownership, they also pleaded that the books dealt with general aspects of science which fall within the domain of public knowledge, hence there was nothing original in the books so that a copyright could subsist. 95

The Court was of the view that a comparison of the two works clearly indicated that the defendants had copied the work of the plaintiff. On the facts of the case, the Court held that the defendants were guilty of infringing the copyright of the plaintiff in the books. The balance of convenience was also in favour of the plaintiff. Permanent injunction was granted in this case. Gramophone Co. of India Ltd. Vs. Mars Recording Pvt. Ltd. AIR 2001 SC 2885 In this case the Supreme Court held that a close intimation of an existing recording using alternate performers is not a copyright infringement. The brief facts of the case The plaintiff during the course of their business were willing of sound recording into audio cassettes of three titles viz, 'kallusakka are kolliro', 'madhuve madhuve' and chinnada hadugalu. The copyrights of the songs containing in three sound recording cassettes vest with the defendant is but the respondent has paid in prescribed manner to the owner of copyright as royalties of Rs.1,500/- and waited for their assent, but the petitioner did not give any information, so he waited for 15 days and then the person producing the cassette after the expiry of 15 days is not said to have infringed copyright. Pleadings of Appellant The leading senior advocate appearing for the appellant submitted that this case gives rise to decision on an important aspect of entertaining a suit under section 41 of the specific relief act in addition to copyright; he took us through the entire copyright act explaining the scope thereof.

Pleadings of Respondent The contended that the question of law involved in the present case is whether an entity which seeks to make version recording or cover versions of an earlier sound 96

recording requires the consent of the owner of the copyright, the answer to this he submitted, would turn on an interpretation of sections 2(m) (iii) and 52(i)(j) of the act. Version recordings are fresh recordings made using a new set of musicians. The counsel established a clear distinction between voluntary license and non-voluntary licenses. While section 30 of the act refers to voluntary licenses in which case the consent of the party is concerned. As opposed to this, there are two types nonvoluntary licenses, compulsory licenses dealt under section 31 and 31 A of the act and statutory licenses such as dealt with in section 51(1) (j) of the act. The ingredients satisfied to attract the section 52 (l)(j). Judgment The Supreme Court held that the act of the defendant is not at all an infringement and petitioners cannot claim damages for infringement. In Vicco Laboratories Vs. Art Commercial Advertising Pvt. Ltd. & Others AIR 2001 SC 2753 The narration of brief facts are the petitioners were carrying business as manufacturers of ayurvedic pharmaceuticals products which were sold under brand name 'Vicco' and have acquired substantial reputation. The defendants were agent appointed by the plaintiff to produce the serial for plaintiff to promote his products, but the defendants produced another serial on the same name hence the plaintiff due for damages. Pleadings of plaintiff The plaintiff has employed the said respondents as advertising agent in respect of the products manufactured by the petitioners for number of yen I'M. The petitioners were the sponsors for the serial "HUMLOG" and also made an agreement with Doordharsan for advertising their products through the agency of respondents, and petitioners agreed to pay the entire cost for the said productions. The respondents produced the serial entitled "yeh jo hai zindagi" in the expenses of petitioners, and it gained much popularity in public and became exclusive 97

and popular serial. The petitioners claimed that the exclusive right to use the title therefore belonged to them and the 2nd part was produced and telecasted without the name and sponsorship of petitioners. And petitioners vest all T.V. and video rights of the sponsored program in Hindi "Yeh jo hai zindagi" and vest with them. Respondents Pleadings Respondents contested that petitioners were not the owners of the copyright in the said serial within the meaning of section 17 of the Copyright Act 1957 and copyright in respect of the said serial belongs and vest with the Copyright Act 1957 and they contended that it was all along agreed between the petitioners and respondents that the copyright in the said serial would rest exclusively in the respondents and not in the petitioners. Thus respondents name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same. Respondents claim that the petitioners have received 50% of the royalty from distributing servicing Pvt. Ltd. The advertisements issued by the petitioners themselves in various news papers to give wide publicity to the said serial would indicate that the serial mentioned those respondents are the owners of the copyright in respect of said serial and the petitioners claim in that behalf in devoid of any substance. Judgment In the present case the Supreme Court held that the petitioners were not able to establish that respondents were the agents of petitioners. In the course of their employment, valuable consideration paid by the petitioners to them, when these facts had not been proved and established hence the petitioner cannot claim copyright and it did not attract section 17 of the Copyright Act.

Exphar SA V. Eupharma Laboratories Ltd. 2004 (3) SCC 688

98

The Appellant of No.2 carried on business within the jurisdiction of the Delhi High Court. Appellant No.2 was certainly a person instituting the suit. The Division Bench went beyond the express words of the statute and negatives the jurisdiction of the court because it found that Appellant No.2 had not claimed ownership of the Copyright of the trademark, infringement of which was claimed in the suit. Appellant No.2 may not be entitled to the relief claimed in the suit but that was no reason for holding that it was not a person who had instituted the suit within the meaning of section 62(2) of the Act. The appellants plaint said that the cease-and-desist notice was sent to Appellant No.2 at its office in New Delhi8 and in that notice it was alleged that Appellant No.2 had infringed the copyright of Respo9ndent No.2 to the trademark Maloxine. It was held that the jurisdiction under the Copyright Act is wider than that of a court as prescribed under CPC. Diljeet Titus, Advocate V. Alfred A. Adebare (2006)32 PTC 609 There were two counter-suits filed by the two of parties aggrieved by the conduct of each other. In a nut6shel their controversy was revolving around the nature of relationship with which the parties got together to carry on their nature of relationship with which the parties got together to carry on their profession as advocates. The plaintiff claimed that the defendants were only working for him and were paid remuneration in the form of fee while he remained in control of the professional business of the organization. On the other hand the defendants in the said suit claim to have worked more in the nature of the partnership with Mr. Diljeet Titus. From the circumstances of the case it was held that there was allegation of misuse of data by the defendant. The ownership over the copyright material created by defendants while in the employment of plaintiff was claimed. It was held that the prima facie it was the plaintiff who was the owner of such copyright material. The interim injunction was granted.

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Microfibres Inc. V. Girdhar & Co. 2006 (32) PTC (Del) The suit alleged the violation of copyright in artistic work applied to upholstery fabrics. The defendant allegedly copied the designs and artistic work of the plaintiff and was passing off as his own work. The work of plaintiff had been registered in copyright office at USA. It was held that the industrial commercial use of design is not covered by the provisions of the Act but is governed by the Designs Act, 2000. As the plaintiff failed to have the design registered under the said Act, the plaintiff was not entitled to any relief. Neha Bhasin V. Anand Raj Anand 2006 (32) PTC 779 The suit was filed by plaintiff alleging that she had sung different songs in the film/album of defendant but one of the defendants showed herself as the singer in publicity material in spite of the fact that it was the voice of the plaintiff over the defendant were mixed with the voice of the plaintiff. The original CD though claimed to be withdrawn from the market was still in circulation and the songs sung by the plaintiff was being credited to the defendants. It was held that the plaintiff was entitled to interim injunction. The direction was given to the defendants in regard to the manner and sale, if they chose to sell the songs after deleting the voice of plaintiff. Syndicate of Press of University of Cambridge V. Kasturi Lal 2006(32) PTC The plaintiff No.1 which traded in the name of Cambridge University Press filed a suit. The plaintiff No.1 and the plaintiff No.2 (its Associate in India) had published the low price edition of the book in question. The plaintiff No.1 averred that it was a reputed publisher with an international standing and held all rights in respect of publication. The interim injunction was confirmed and it was held that the printing and publishing of a guide and reproduction of essentially required matter from prescribed book is not infringement.

Dabur India Ltd

100

Vs. K.R. Industries Manu/SC 2244/2008. AIR 2008 SC 3123 In this case the court held that defendants had infringed the copyright of plaintiff and an order of permanent injunction was passed. The narration of brief facts Appellant is a manufacturer of a product known as 'Dabur Red Tooth Powder' or Dabut lal Dant Manjan in the year 1993, it had allegedly adopted a unique colour combination and arrangement of features which was subsequently changed respondent claims that the said manufacturer of a tooth powder known as 'Sujatha'. It is said to have infringed the copyright of the appellant. A suit was filed by the appellant against the respondent. Pleadings of the Plaintiff Plaintiff adapted a new certain while retaining the conical shape and white cap for their product which is described as follows. On one column has the word RED tooth powder within a year blurb, immediately below the blurb is a oval shaped picture of a family with a yellow background. The column immediately next to it contains the same features in the devnagari script. The third column sets out the details including composition weight, mrp, and manufacturers name etc. The top half of the third column contains an oval shaped device containing a diagrammatic representation of the herbs that constitute the ingredients of plaintiff's product. It was alleged that the said carton constituted an artistic work within the meaning of section 25-C of the Copyright Act 1957. The respondent is said to have been using an identical colour scheme layout, arrangement of features and get up as that the plaintiff's the essential one column has the words Red Tooth Powder within a yellow blurb. A column which contains the representation of a family in an oval shape picture. The details of the product are set out in another column. A relief claimed by the plaintiff is

101

a) An order of permanent injunction restraining the defendant, their partners, proprietors and promoters as the case may be their servants and agents, representatives dealers and all others acting for and on their behalf from reproducing any of the artistic features of the plaintiff's Dabur Red Tooth Powder container packaging/pouch, including its colour sand combination, get up layout or arrangement of features, printing, publishing, using or otherwise reproducing any of the artistic features thereof in any material from amounting to an infringement of copyright.
b) An order of permanent injunction restraining the dependents, their partners,

proprietors and promoters as the case may be their servants and agents, representatives, dealers and all others acting for and on their behalf from manufacturing, selling, offering for sale or otherwise directly or indirectly dealing in tooth powder packed in the impugned packaging of any other packaging as may be a slavish limitation and a substantial reproduction of the Dabur Red Tooth Powder container from committing any other acts as is likely to be cause confusion and deception amounting to passing off. Judgment In this case, the Delhi high court could not have invoked its jurisdiction interms of 1957 act. The primary ground that the plaintiff was not a resident of Delhi. It has not been able to establish that it carries on any business sat Delhi for our purpose the question as to whether the defendant had been selling its procedure in Delhi or other is irrelevant. It is possible that the goods manufactured by the plaintiff are available in the market of Delhi or they are sold in Delhi but that it would not mean that the plaintiff carries on any business in Delhi. The court finally held that plaintiff may seek a remedy which can otherwise granted by the court.

M/s Entertainment Network Ltd. Vs. M/s Super Cassette Ltd. AIR 1445 SC 2008 102

In the above case the court awarded the costs to the defendants. Brief facts of the case The first respondent is one of the leading music companies engaged in the production and acquisition of rights in sound recordings. It has copyright over a series of cassettes and CD's commonly known as T-series. It has copyrights in cinematograph films and sound recordings. The appellant entertainment network broadcasts under the brand name 'Radio Mirchi". It is a leading FM radio broadcaster disputes and differences arose between Bennett Coleman & Co. Ltd., the holding company of the first respondent and phonographic performance Ltd. As regards the playing of the songs of which copyright belongs to the respondent in their FM radio network. Appellant is a company which holds license for running FM radio stations all over India. Pleadings of Petitioner Super cassettes through it lawyer by a notice dated 21.1.2002 in views of the said infringement of his copyright called upon ENIL; to give an undertaking that it shall not broadcast the sound records of Super Cassettes through its radio station without a valid license and payment of royalty super cassettes again by immediately desist from broadcasting sound recordings of Super Cassettes clients through its radio station. Super cassettes clients had given an undertaking that if shall not broadcast the sound recordings of super cassettes clients through its radio station without a valid license and payment of royalty pay a sum of Rs.50,00,000-00 (fifty lakhs only) as liquidated damages for illegal broadcast and acts of infringements committed by it, to super cassettes with in 15 days of receipt hereof under intimation to super cassettes failing with super cassettes have positive instruction of its clients to initiate such legal action both civil and criminal against the directors who are responsible for the said infringement, with out any further notice and in that case you shall be further liable for all cost and consequences there off. The contention is that the music is for general benefit of society at large.

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Judgment In this case the court held that "use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence of that where unauthorized use of PPL's copyright is taking place. We do not refuse to license that copyright without an appropriate payment for past use agreement. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued; as indicated herein before the board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty. As it was a case of abuse, the board has the jurisdiction to entertain any application for grant of compulsory license. How far and to what extent appellant was infringed the right of the respondent is a matter which may be taken into consideration by the board. A suit was filed as negotiations with the respondents in the suit as soon as it came to know that super cassettes is not a member of PPL it gave an undertaking, each case must be considered on its own facts. However we do not approve the manner in which the board has dealt with the matter be considered as a fresh on merit. The party shall pay costs. Babbar Wreckers Private ltd. Vs. Ashok Leyland Ltd. & Others AIR 2011 PTC 164 In this case the court gave an order in favour of the plaintiff and ordered for payment of damages to plaintiff. Brief facts of the case The Babbar Wrechers claims to be engaged in manufacturing and designing wreckers (known as LRVs) for more than 40 years and to having supplied them to various government departments. The equipments are reliable and easy to operate and 104

are mounted on suitable commercial vehicles. Babbar Wrechers claims to have earned substantial reputation and goodwill for the performance of its Wrecker equipment and also claims to have spent considerable money in designing and development them having regard to their functionality. The plaintiff claims that the drawings of his copyright are artistic works. Pleadings of Plaintiff Babbar wreckers complains that there was an agreement took place when Ashok Leyland was placed with order of supply of 286 LRV the contract for fabrication and supply of all the wrecker assemblies was placed perfect. It is stated that this was breach of agreement as Babbar Wrechers had put in tremendous labour and effort in securing its drawings approved and was entitled to at least half of the order but was content to maintain cordial relations by executing the orders for wrecher assemblies only in respect of SOLRVS. It is submitted that if the past precedent and practice were to be taken into account, Babbar Wreckers was entitled to manufacture at least 50% of the total orders placed upon Ashok Leyland, the letter kept on evading and giving vague assurances. Ultimately, a legal notice dated 7.4.2009 was issued to the first three defendants, terminating the license to use the drawings and specifications. The plaintiff's engineering drawings, specifications and technical know-how the Babbar wreckers allowed it to use the drawings as a gesture of good will, but at the same time cannot be construed as various contracts between them 2000-2005 where such work orders were procured by Ashok Leyland for supply of the entire LRV; the fabrication and supply of 1121 vehicles was given by the central government in five lots. Ashok Leyland procured the orders for supply of the vehicles with the wrecker assemblies invariably was given a proportionately lower quantity. The plaintiff argues that the pleadings and documents on record prove beyond doubt, that it is the copyright owner of the drawings conforming to the specifications of 2001 and 2005. Used by the Ashok Leyland and perfect for assembling the wrecker units. It is submitted the authority and right to exclusively reproduce the drawings in material, three dimensional forms, vests in the plaintiff, which both Ashok Leyland and perfect have infringed. 105

Judgment The court held that the plaintiff has been unable to establish prima facie to its being a copyright owner. At the same time the court is conscious that it has been beneficiary in previous contracts and that 3-7% royalty was being paid to it. Ashok Leyland is directed to furnish an undertaking to pay damages in the event of plaintiff success. Ashok Leyland is also directed to furnish a bank guarantee for the sum of Rs.3,00,000/- in favour of the registrar of this court to satisfy any money decree, within four weeks from date. N. Ranga Rao & Sons Vs. Koya's Perfumery works 2011 PTC 140 madras In this case the court directed the respondents to render the true profits for passing off action and for costs of the suit. Brief facts of the case The plaintiff was the manufacturing company of artistic work "WOODS" and the respondent was using the same trademark which is offending trademark "HEAVEN WOOD" or any other mark which is identical and similar to the registered trade mark "WOODS". The appellant prayed for permanent injunction restraining the respondent herein from in any manner a infringing the plaintiff's copyrighted artistic work "WOODS", which is identical and similar to the registered trademark, permanent injunction restraining the respondent herein from in any manner passing of its agarbathi products bearing the offending trademarks and the plaintiff asked action for passing off committed by the respondent and costs of the suit and permanent injunction restraining the respondent from using the similar copyrighted work "HEAVEN WOOD". Pleadings of plaintiff/applicant/appellant It is argued on behalf of the plaintiff. Plaintiff is the leading manufacturers of the agarpathies and their names are very well established in the public. The plaintiff had only conceived and adopted the "WOODS" in respect of agarpathies and applied for registration of the same on 24,1.1985 and subsequently obtained registration of 106

trademark "WOODS" in respect of agarpathies and dhoop (incense sticks) under the trademarks act, 1958 and it is periodically renewed. The petitioner also designed the agarpathi cartoon bearing trademark "WOODS" in an artistic manner with a peculiar colour scheme and getup during the year 1996 and also registered the same under the Copyright Act, 1958. It further contended that appellant had spent considerable amount and efforts in promoting the sale and due to the quality of their products they had done business to the tune of several crores of rupees since its inception under the trademark and the artistic work "WOODS". The appellant became aware during the end of 2009 that the respondent has started the manufacture and selling agarbathies under the identical carbon bearing the offending artistic work of WOOD and it amounts to malafide act. Therefore the said plaintiff prayed for interim injunction restraining the respondent herein from doing the same and action for passing off action. Judgment The court held that the subject matter in this case that the respondent changed the size of the font and brought alteration in compliance of the order. This court has also compared the carton of the agarpathies manufactured by the appellant and the respondent and found that the carton of the respondent contains entirely different colour-scheme; font and the words appearing on the font are also of different context and conveys different meaning and it cannot create any confusion with regard to the product for any purchaser. The court dismissed the suit and no order for costs because there is no infringement of the copyrighted work.

Castrol Limited Vs. Union of India & Another 2011 PTC 280.

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In the above case the court held that artistic works in respect of castrol logo have been abandoned, without being heard and held that the act of DROC (Deputy Registrar of Copyrights) has set aside. The narration of brief facts In the case the petitioner has filed an application for his two artistic works in respect of Castrol logo under copyright act 1957. The petitioner was doing the business of manufacturing processing and marketing high grade lubricating oil products in the United Kingdom and other countries. The afore mention applications were filed by it on 2nd August 2004 in accordance with the requirements of section 45 CA. But the DROC impunged the application. Pleadings of petitioner The counsel for the petitioner stated that all the documents were submitted i.e. NOC in original as well as duly stamped, to the DROC for registration of logo castrol for his artistic in respect of which two applications were submitted in original and sent to Registrar of Copyright (ROC). After a few months a letter was received by the counsel from the DROC asking the petitioners to furnish the documents of NOC in original authors has no objection in registering the copyright in the name of the applicant and POA has not been submitted on stamp paper and please submit them duly signed by the applicant. The petitioners has sent a letter submitting documents of NOC in original as well as duly stamped POA, but it is stated that petitioner again received a letter from DROC reiterating discrepancies. The petitioner requested for time and again filed the said documents. By the letter dated 17th August 2009, but petitioner sought further extension of time till 18lh September 2009 for submitting the documents. However, the impugned order was passed.

Judgment By observing the petitioner arguments and relevant cases cited by the petitioners, the court held that the petitioners can file a petition on the ground that the

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impugned order of DROC is appealable before the copyright board under section 72 (1)CA. The above submissions have been considered, the impugned order has obviously been passed without affording the petitioner an opportunity of being heard. From the narration of facts in the petition it appears that the petitioner the DROC ought to have given the petitioner an opportunity of being heard before deciding to simply close the application as "recorded". And the decision of the DROC on the two application again submitted by petitions will be communicated to him with in 4 week. If the petitioner is still aggrieved by the decision then the petitioner can seek appropriate remedies in accordance with law. In a case decided in 2011 regarding SAP Akfingesell schaft & another Vs. Sadia Pasha Proprietor,M/s Neologik India. Software piracy, the SC awarded damages for the violation of rights of plaintiff. The brief facts are the plaintiff company is incorporated in Germany, and it is doing business in India, and sales of SAP solutions, implementation postimplementation support, training and certification of its customers and partners in India. Plaintiff claims to be global leader in developing application software products for real time business developing process and also claim to be world's largest overall independent supplier. It is alleged that in early 70's plaintiff developed RF system, an automatic accounting and transaction - processing program that featured standard software and real time computing and later came to be referred as R/1. Plaintiff's software has been used by the defendant without any license and claimed to seek delivery up of the infringing material besides seeking rendition of accounts.

Pleadings of Plaintiff 1) Plaintiff states that the software program developed and marketed by them are 'computer programs' with in the meaning of section 2(f) of the Indian Copyright Act, 109

1957 and also included in the definition of a 'literary work' as per section 2(o) of the copyright act. It is also alleged that both India and Germany are signatories of the Berne Convention, Universal copyright convention and WTO agreement and therefore rights of the plaintiff companies are protected in India under Copyright Act. 2) It was found by the plaintiffs that on its website www.neologikindia.com the

defendant was making offer for providing various training programs in relation to plaintiff's software products and had also been regularly advertising the training programs offered by it with respect to the software programs of the plaintiff, especially on SAP 4/3 and ABAP/4. 3) It also alleges that due to high levels of customization the software products

they have purpose specific versions of their software license agreements which are licensed for particular stream of use and cannot be used in any manner or for any other purpose. Besides End User License Agreements (ELUAS), the plaintiff also claim to have specific license agreements to govern comprehensive and continuing education training programs, required for effective and meaningful use of its products. 4) Plaintiff company developed and introduced SAP in the year 1979 and

SAP/R/3 in the year 1992 plaintiff company stated that their products are manufactured to meet the specific needs of each customer aid are not available off the shelf or through e- stores etc. 5) It further stated that the plaintiff's company needs specially trained software professionals to load, execute, access, employ utilize, store and display integrated end to end solutions. It further stated that it never even grant a single valid license in favour of defendant and police in the raid on 19th October 2004, recovered two servers having pirated version of plaintiff's computer program SAP1 R/3 version 4.7 IDES. And again within 3 months the defendant again resumed his illegal activities of imparting unauthorized training in plaintiff's software products. Judgment By the reasons given above, it is clear that the defendant infringed the copyright of the plaintiff by using the pirated software R/3 and by imparting training

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using the aforesaid software. During the course of arguments the counsel for the plaintiff has prayed to grant permanent injunction and punitive damages. Punitive damages were granted for unscrupulous persons who actuated by dishonest intention. Defendant is restrained from using any pirated/unlicensed software of Plaintiff Company including R/3 and is further restrained from imparting training in the aforesaid programs of plaintiff without requisite license, basing on the case punitive damages amounting to Rs. l Lac to the plaintiff against the defendant. And the plaintiff have valued the suit at Rs.6 Lac for the purpose of damages and have also paid the requisite court fee on it, therefore, the relief of damages were granted to the plaintiff. The S.C took a stand in favour of the plaintiff and held that the defendant has infringed the rights of plaintiff. In Saregama India Ltd Vs Balaji Telefilms Ltd. & Ors was heard before Justice I.P. Mukerji at the Calcutta High Court on 18 April, 2012. The recent histrionic abilities of the Bollywood actress Vidya Balan in the widely-acclaimed movie Dirty Picture. On April 22, 2012, the movie is due to have its satellite launch, following which it will be aired in television channels across the country. It is at this stage that a recent petition has been filed seeking an injunction from broadcasting the film itself or at any rate the song therein titled "Ooh La La Ooh La La". The petitioner alleged that the said song, which has attained considerable popularity till date since the music of the film had been released on television on 21st October, 2011 (and the film itself was released in theatres on 2nd December, 2011), contains the lyric and tune "Ooh La La Ooh La La", which stands in violation of the petitioners copyright in the song "Ui Amma Ui Amma", from an old Hindi film Mawali, having Mr. Bappi Lahiri as its music composer. During the hearing of this matter, both the songs were played on a laptop for the judges benefit and he found quite a strong similarity between the tunes. However, the defendant argued that such a small part of the old song spanning a few seconds 111

has virtually no content in lyric or music and hence there is no copyright of any person in it. Therefore, the allegedly offending part of the song "Ooh La La Ooh La La" cannot be deemed to be a copy of that part of the old song. The petitioner relied on a deed of assignment of copyright to strengthen his case. However, the defendant contested the validity of the said deed, arguing that there was no specific duration of the assignment mentioned in the deed [As per Section 19(5) of the Copyright Act, 1957, if the period of assignment is not stated it shall be deemed to be five years from the Deed of Assignment]. The petitioner countered the argument by saying that S. 19(5) was introduced in the 1957 Act at a much later point of time after the assignment. The Court found that the deed appeared prima facie to be an unconditional and absolute assignment and before the amendment and hence rejected the defendants challenge regarding the deeds validity. An important issue was why the petitioner delayed so long before bringing this infringement suit, which, according to the defendant, resulted in loss of plaintiffs right to get an ad interim order of injunction. To support this claim, the petitioner relied on the twin cases of Mr. Ajay Monga vs. Red Chillies Entertainment Pvt. Ltd. [Bombay High Court, 6th August, 2008] and Nariman Pictures and Ors. Vs. Baba Arts Ltd. And Ors. [Bombay High Court, 22nd December, 2011]. The Court in the present matter held that there existed substantial similarity between the two tunes and their overall impact, despite the difference in words. It was also held that the petitioner, in the light of Ram Sampath vs. Rajesh Roshan & Ors [2009(40) PTC 78(Bom.)] made a prima facie case of infringement, by arguing that even a small part of the song is capable of copyright protection. However, the Court made two important observations regarding this, Regarding the question of inordinate delay by the plaintiff, the Court considered the case of Medas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors. [(2004) 3 SCC 90], which stated that if infringement is established then injunction must follow as a matter of course. However, the two aforementioned Bombay High Court judgments went on to posit that when the balance of convenience is altered by reason of delay, then the above principle of automatic grant of injunction may not be applicable. Given that considerable money has already been spent in 112

buying the broadcasting rights and that the film is scheduled to be telecast on 22nd April, 2012, grant of an injunction at this stage, according to the defendant, would cause irreparable damage to be suffered. Considering such a situation, the Court refrained from issuing such injunction, in the light of the balance of convenience argument. The Court also considered petitioners letter dated 7th February, 2012, wherein it had informed the defendant of such infringement, but expressed willingness to grant license for consideration. It was the Courts opinion that the petitioner had not lost the right of exploitation of the copyright by sale of the license to the defendant and given that it had been deprived of such right by the defendants subsequent actions, it is entitled to compensation from the defendant. The defendant was thus permitted to carry on the telecast of the movie as scheduled, but was also directed to deposit a sum of Rs. 2 Crores (the estimated amount for which the petitioner might have issued license to the defendant) with the Registrar, Original Side within 25th April, 2012, to the credit of the suit. It thus seems good news for the public who will still be able to enjoy the movie from April 22 onwards without any cuts/deletion, although perhaps the time has come to question the tactics employed by certain people to file infringement suits just prior to a movies release/satellite launch, knowing well that the producers/distributors will be hamstrung by the fear of suffering ruinous financial losses in case an interim injunction is awarded.

CHAPTER - 6 CONCLUSION

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As the law is not static it has to be changed according to the changes in the society so also copyright law. Law also changed in order to suit the changing needs of the society. However law should preserve the original purpose of copyright, which is the protection and acknowledgement of the creators work regardless of interest of publishers. The main interest of many authors is to protect the integrity of their works. Profiting from the use of the work is secondary in many cases, the commercial publishers interest. On the other hand to got profit from the work. When the present copyright law was enacted in 1909, the problem of photocopying copyrighted works did not exist. The issue came into existence with the introduction of copying machines; which are capable of transferring and replicating. Copyrighted materials quickly and in quantity, but also of making copies which in themselves are adaptable for the production of further copies. The problem has intensified in recent years with the progressive development of relatively in expensive copying machines which have simplified and greatly extended the practice of photocopying among scholars, researchers, students and to the publishers. The implications of this phenomenon on the copyright law have a direct bearing upon the dissemination of information in general and scientific and technical information in particular with the "explosion of information and the flood of materials since the 19th century. Library photocopying has become essential in the effective dissemination and use of information for research or case study. The urgent and serious needs of readers and libraries in this area are manifested in the library clientele's demands, the vast number of research projects, the government and foundation grants in support of such projects, and the Governments policies and aid to libraries in support of photocopying. The publishing industry is having a moral obligation to disseminate knowledge but it is also has a "business or legal obligation" to stockholders, employees, dealers and clients to stay a float by realizing profits that will in turn enable publishers to fulfill their moral obligation towards the public. Copyright law is an incentive to the authors and their assignees to create and disseminate knowledge. It is in essence, a monopoly, a trade-off or a price that society has to pay in return for the advancement of science and useful arts. Statutory copyright therefore is based on a 114

profit motive for both the author and entrepreneur. The question is whether the interest of the copyright owner is sufficient to warrant the extension of the copyright monopoly to cover library photocopying. During the first hundred years, the Berne Convention, containing as it does a detailed codification of provisions, has helped greatly in harmonization of laws over a considerable part of the world; these laws are governed not only by the principle of national treatment but also by provisions setting minimum standards for a comprehensive protection of the rights involved. The challenge to international copyright in the last twenty of the first hundred years of the Berne Convention was to find solutions to the problems of the developing countries; some of these problems will perhaps continue for the certain time. The main problems to be tackled in the future will, however concern those posed by the new technologies. The development of technologies which are having both quantitative and qualitative effects on copyright are now quite well known in specialist circles, the main ones are reprography private recording of phonograms and videogames, cable television, satellite broadcasting, computer storage and retrieval of works protected by copyright, computer programs data bases etc. The impact of new technologies on the rights of copyright owners. Some important steps are certainly indicated already the starting of second century of the Berne Convention, where by copyright proprietors could maintain their rights in the face of fast developing technologies. First of all these would have to be in the direction of enforcement procedures in particular through the enhancement of civil remedies and panel sanctions. It is necessary to contain the problems of commercial piracy, illegal reproduction and distribution of protected works and other infringements of copyright which are becoming increasingly widespread with the new means of reproduction. The second appears to be that national copyright legislations need a constant review and updating from time to time in order to provide solutions to these and other problems posed by the constantly and rapidly developing technologies. There is also the need for action by governments nationally both in terms of an expression of political will as well as administrative determination to follow up on these. In fact 115

international copyright as enshrined in the Berne Convention as well as the development of creativity, cultural exchange as also the cultural industry, largely on the positive role of national governments in providing effective legislation and constantly reviewing it, as well as ensuring efficient implementation of such legislation. The Berne Convention has influenced the copyright policy of several countries, including a number of developing countries and has, as also stated earlier, been drawn upon in the preparation of copyright legislation, providing a balance between the needs and interests of authors, publishers other copyright owners, as well as those of the general public. The conventional rights effectively implemented could serve as an incentive to one's national authors and their assigns to create and disseminate knowledge. It is something the society necessarily accepts if it wishes to encourage intellectual creativity to ensure the progress of the sciences, the arts and of knowledge in general, to promote the industry using authors works and to render it possible to distribute such works in an organized manner among the widest possible circle of interested persons. It may be commented that for a country contemplating new copyright legislation it is more important to ensure that the legislation harmonizes with the general jurisprudence and the main body of statute law within the country with which the judiciary, the legal profession and the businessman will be familiar than it is to draft a law on the basis of copyright intellectual concepts which are a lien to the legal philosophy and practice of the country. Half a century ago the Bombay high court had examined the same question in the Wellingdon cinema vs. the performing right society ltd., and rejected the contention that by authorizing the use of his work in a cinematograph film or record the author or composer gave up the performing right in his work so far as exclusive performing right came into existence with respect to the film or record so created. The action was brought by BPRS against the exhibitor, the Wellingdon cinema, who had exhibited a film entitled "Love, life and laughter" alleging that there by the exhibitor committed infringement of their copyright in some musical works 116

(songs). The performing right in the musical works had been assigned to the BPRS, but a couple of months earlier the film producer had obtained a license from the composers for using them "in the production and exhibition of the film". The license was, however, subject to the proviso that it would not entitle the film producer to perform the said musical works or any part there of in public and permission to perform the same shall be obtained by the license from the owner or controller of the performing right there in. The several exclusive rights of authors and composers of literary and musical works listed in Sec.14 (l)(9a) are independent of each other. They are not in any manner affected by or sub-ordinate to, the exclusive rights in respect of the separate copyright in a cinematograph film, makes this abundantly clear. The only exception is that contemplated by section 17 proviso (c) where a work has been produced by an employee - composer or employee - author in the cause of his employment under a contract of service. In all other cases the rights belong to him exclusively, until he assigns any of his rights in the maimer prescribed by the law, or granting a license similarly. It is the statutory duty of a performing right society to publish the tariff of fees, royalties and charges in respect of the public performance of works to issuing or granting licenses. Its failure to do so may bar infringement right society is envisaged as one for the protection of authors, composers and publishers of musical works and for the performance of such works which number in thousands at innumerable theatres and other public places. It acts as a sentinel and guards against the deprivation of the performing right of authors and composers who individually are often too weak in their bargaining strength to protect themselves. The healthy growth of this institution is essential to protect intellectual works belonging to this category from exploitation. The provision in the act that the exhibition of a cinematograph film after the exploitation of the term of the copyright in it will not constitute an infringement of the literary or musical work utilized in the film will be redundant if as held by the Supreme Court and the Calcutta High Court, there is no such infringement by the exhibition of the film even when copyright subsists in the film. That provision is a 117

necessary of Section 13(4) and gives recognition to the legal position that the two copyrights are independent of each other. It is hoped that the Supreme Court will avail itself of the earliest opportunity to undo its unfortunate decision in IPRS Vs. EIMPA and with it the damage done to authors and composers, as well as their organization the performing right society or else parliament must take necessary legislative measure to restore authors and composers the protection it intended for them when it enacted section 13(4) in the Copyright Act, 1957 which the judicial decisions have taken away. Sections 63, 65 and 67 clearly prescribe that only persons who knowingly infringe copyright are committing penal offences. Bu t on the other hand, these offences are not strict liability offences either. As regards civil liability however, it would be true to say generally that the Indian law does not, barring one exception, regard knowledge of infringement on the part of the defendant as a basis of liability. If a defendant permits for profit the use of any place for public performance of copyrighted work, he can use under section 51(a)(ii) show that the was unaware of subsisting copyright or that she had reasonable grounds to believe that such copyright did not subsists at the relevant time. If this is proved the plaintiff is only entitled to injunction and account of profits but to no other remedy. But in all other cases defined by section 51 and the chapter providing for civil liability, the defendant who does anything to infringe copyright or deals in specified manner with infringing copies remains liable for damages for infringement. In this sense, the Indian law does not distinguish between direct and indirect infringement of copyright for purposes of civil remedies. All that has to be proved is the fact of infringement from that the liability follows. The Indian laws, subject to the above mentioned solitary exception, no longer cognizes the possibility of an innocent infringer. It is obviously needed to increase copyright consciousness as an aspect of the Indian social and cultural development and justice. Clearly, as a priority task, the obstacles imposed by the crisis of Indian adjudicatory system, especially enormous delays, staggering costs and wavering decisional law have to be redressed and access to adjudication improved. The present structural dis-incentives to the use of protective provisions of copyright legislation have to be removed. And this can perhaps be best 118

done through a network of easily accessible copyright or intellectual property, tribunals throughout the country. Time has certainly came in India for a more mature appreciation of the fact that copyright law & justice are more than market and property categories primarily protecting copyright industries. Copyright legislation must be so designed as to protect as well as the rights of intellectual and cultural laborers upon which ultimately the social interest in cultural progress depends. 6.2 SUGGESTIONS After this comparative study it is clear that except in India the right to sue for infringement of copyright/performers rights of a licensing body are recognized in most of the countries across the globe, if the owners of these rights so desire. By and large in no country the statute provide prosecuting power on these bodies for any infringement of rights thy license. But when these entities are empowered by their members, whether in the capacity of an assignee, licensee or merely as an agent, the Courts have endorsed such a right and allowed the licensing bodies to bring a legal action for the infringement of the copyright/performers rights. Another thing, which is unambiguous, is that in every system a licensing body plays a major and effective role in policing the infringement of copyright/performers rights. It is therefore in a much better position to sue for the infringement of copyright. It also cuts down on unnecessary litigation, extreme expenses and difficulty for the individual owners of copyright/performers right to enforce their rights both in the country of origin and outside. Also, the bargaining power of the individual right owners is very weak vis-vis the power of the licensing bodies. This function of suing the infringer of copyright/performers right (if) carried out by a licensing body will make a more effective body for collective administration. It will also prove more convenient for the owners of these rights as once they are the members of the licensing body they can be satisfied that the latter will spot and further take care of any infringement of their rights (though the cost of litigation is borne by them). Also at no point is such position of law of any disadvantage to the alleged infringer.

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It is due to these aforementioned reasons that it is submitted that if authorized by the members, there is no reason why in India too a licensing body should not be permitted to initiate a suit for the infringement of copyright/performers right, whether in the capacity of an assignee, exclusive licensee or as an agent. The Indian Courts need to go beyond the literal or restrictive interpretation of the statute and need to look at the practicality of the issue at hand. Technological Protection Measures (TPM) is any technological devices or a tool that prevents unauthorized or illegal access to, or copying or reproduction of copyright materials. There are two categories of TPM access control and copy control Access control TPMs prevent unauthorized access to material while copy control TPMs prevent unauthorized copying. Access is restricted through use of password and/or encryption. The Copyright Act does not include regional coding on DVDs or computer programs in its definition of an access control TPM. TPMs are mostly used in material as sound recordings, films and computer software, as well as electronic artistic and literary works. Digital Rights Management (DRM) TPMs are controversial. works and infringing their copyright. Copyright

owners support the use of TPMs as they prevent users from illegally copying their Users of copyright material believe that although TPMs prevent infringing uses of copyright material, they can also prevent legitimate uses of copyright material under certain provisions such as the statutory Licenses for educational purposes, Fair Dealing and Personal Use. A well known example of TPM is the Sony Root Kit which was included on Sony audio CDs and design to prevent music on the CD being transferred to a computer and then burned to another CD. However, this TPM installed a Rootkit which left the users computer vulnerable to attacks by malware or spyware. The users was usually unaware of that the Rootkit I been installed and therefore their machine was vulnerable. Legal action was taken against Sony and they recalled all the CDs that included the Rootkit. Under the Copyright Act it is not permitted to use, manufacture, import, supply or communicates devices to circumvent access control TPMs. And allow 120

unauthorized access or copying. Legal action may be taken against anyone who deliberate or knowingly uses a device to circumvent, manufacture or supply such a device or provide a service circumventing TPMs. It is not permitted to circumvent a TPM to copy or access material under the Fair Dealing or Personal Use provisions. There are some limited exceptions under certain circumstances. Educational Purposes You may circumvent a TPM if you wish to exercise any of the rights permitted under the Statutory License, e.g. copy a reasonable portion of a work for educational purposes. If you wish to copy the recorded music for educational purposes under the Music License but are prevented from doing so by a TPM, plea contact the Copyright Office, as we may be able to provide another copy without the TPM.

Assisting Persons with Print or Intellectual Disabilities A TPM can be circumvented for the purpose of reproducing or communicating material to assist people with print or intellectual disabilities.

Libraries and Educational Institutions Libraries and educational institutions are permitted to circumvent TPMs for the sole purpose of making an acquisition decision regarding a work. This exception does not apply if the TPM being circumvented for additional purposes other than making an acquisition decision or if the work is available elsewhere without needing to circumvent the TPM.

Interoperability It is permitted to circumvent a TPM on a legally obtained, non-infringing copy of a computer program for the sole purpose of achieving interoperability between computer programs, so long as the copyright in the computer program is not infringed. This exception does not apply if the TPM is being circumvented for additional purposes other than achieving inter-operability or if the work is available elsewhere without needing to circumvent. These exceptions permit the circumventing of a TPM but they do not

cover the manufacture or supply of a device for circumventing a TPM. For 121

example, while it is permitting that a TPM might be circumvented by an educational institutions to provide access to material for educational purposes under the Statutory License, the exception would not cover the manufacture or a supply of a device by an educational institutions to circumvent a TPM to provide access to material for educational purposes under the Statutory License.

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BIBLIOGRAPHY SECONDARY DOCUMENTS 1. BOOKS

Dr. G.B. Reddy's Intellectual property Rights and the Law. P. Narayanan Intellectual property Law. N.S. Gopala Krishnan Intellectual property and criminal Law Vikas vashishth Law and practice of Intellectual property in India Manual of copy right Enforcement The federation of India

2. JOURNAL AND PERIODICALS

All India Reports Patent Trademarks copyright cases Academy of Law Review Andhra Law Times Encyclopedia of social Sciences Journal of Bar Council of India

3. WEB SITES

www.wipo.org world Intellectuals property organization www.spicyindia.org www.PCTgazette.wipo.int www.Inta.org www.Antipiracy.india.com

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