Means of copyright - 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 copyright law
is to protect the fruits of a man’s work, labour, skill or test from annexation by other
people”
Indian position: The Copyright Act, 1957 is the governing Act to copyrights which
came into effect from January 1958. This Act has been amended five times since
then, i.e., in 1983, 1984, 1992, 1994 and 1999. Prior to the Act of 1957, the Law of
Copyrights in the country was governed by the Copyright Act of 1914. This Act was
essentially the extension of the British Copyright Act, 1911 to India.
Subject matter of copyright- Copyright only in expression, no copyright in
idea. The expression of ideas is one of the cornerstones of copyright.
Donoghue v Allied Newspapers Ltd (1937) 3 All ER 503
Facts This case concerned a series of articles published in the
News of the World newspaper about the then-famous
jockey Stephen Donoghue and his experiences in the world
of horse racing. Mr Donoghue was interviewed about his
adventures, which were subsequently used by a
professional journalist S. T. Felstead. The series of articles
published were called "Steve Donoghue’s Racing Secrets,
Enthralling Stories of the Sport of Kings", and all articles
were approved by Mr Donoghue prior to publishing. Mr
Felstead wanted to further use the material which was
published in these articles by writing a new piece titled "My
Racing Secrets. By Steve Donoghue" to be published in the
newspaper Guides and Ideas, which used condensed parts
from the older articles, effectively creating a new work. Mr
Donoghue did not consent to the publication of new works,
yet when the piece was published in the newspaper, Mr.
Donoghue took action to prevent any further publications of
such articles.
Decision Plaintiff is neither author nor co-author because there is no
copyright in an idea, or in ideas. A person may have a
brilliant idea for a story, or for a picture, or for a play, and
one which appears to him to be original; but if he
communicates that idea to an author or an artist or a
playwright, the production which is the result of the
communication of the idea to the author or the artist or the
playwright is the copyright of the person who has clothed
the idea in a form, whether by means of a picture, a play, or
a book, and the owner of the idea has no rights in that
product."
University of London Press Limited v University Tutorial Press (1916) 2 Ch D
601
(Sec13 0f the Act)
(Copyright Act is not concerned with the originality of ideas but with the
expression of thought)
Doctrine of Sweat of the brow : According to this doctrine, an author gains rights
through simple diligence during the creation of a work, such as a database, or a
directory. Substantial creativity or "originality" is not required
Facts The Court in this case was concerned with the question as
 to whether the question paper set up by the examiners was
original work of the plaintiffs in that case.
Decision It was held that the papers set up by the examiners were
literary work within the meaning of the Copyright Act, 1911
(British). According to the Court the word original did not in
that connection meant that the work must be the
expression of original or inventive thought. Copyright Acts is
not concerned with the originality of ideas but with the
expression of thought, and, in the case of literary work, with
the expression of thought in print or writing. It was held that
the plaintiffs had proved that they had thought out the
questions which they set and that they made notes or
memoranda for future questions which they set. The papers
which they prepared originated from themselves and were
within the meaning of the Act, original. Countering the
arguments that the questions in the elementary papers are
of common type, the Court held that most elementary books
of mathematics may be said to be of a common type, but
that fact would not give impunity to a predatory infringer.
The book and the papers alike originate from the author
and are not copied by him from another book or other
papers. After all, there remains the rough practical test that
what is worth copying is prima facie worth protecting.
EASTERN BOOK COMPANY & ORS VS D.B. MODAK 2008(36) PTC 1 (SC)
Facts Th Appellants in the present case are involved in printing and
publishing of law report known as “Supreme Court Cases”
in which they publish all reported and unreported judgments
of Supreme Court of India.
The appellants make various changes in the original
judgments and make it user friendly by adding many
important things that make it clearer.
Respondent 1, Spectrum Business Support Ltd. has
brought out software called “Grand Jurix” published on CD-
ROMs and Respondent 2, Regent Data Tech Pvt. Ltd. Has
brought out software package called “The Laws” published
on CD-ROMs.
As per Appellants the all the modules in the
respondents software packages have been lifted verbatim
from the appellants work. The respondents have copied the
appellants’ sequencing, selection and arrangements of
cases coupled with the entire text of copied edited judgment
as published in the appellants’ law report along with the
style and formatting, the copy editing, paragraph numbers,
footnote numbers, cross-referencing, etc.
Decision It was stated by the Apex court that no doubt, the
appellants have collected the material, improved the
readability of the judgment by putting inputs in the original
text of the judgment by considerable labour, and arranged it
 in their own style, but that does not give the flavour of
minimum requirement of creativity.
The apex court stated that the ‘SCC Report’ does not as a
whole display sufficient originality to amount to an original
work of the author. To support copyright there must be
some substantive variation and not merely a trivial variation,
not the variation of the type where limited ways/unique of
expression are available and an author selects one of them
which can be said to be garden variety. Further, the Apex
court stated that novelty, invention, or innovative idea is not
the requirement for protection of copyright but it does
require minimal degree of creativity.
With the above explanation, the Apex court stated that the
inputs put in by the appellants in the copy-edited judgments
do not match standard of creativity required for the
copyright.
Urmi Juvekar Chiang vs Global Broadcast News Limited 2008 (36) PTC 1 SC
(Case based on breach of confidentiality )
Facts In November 2005, Urmi Juvekar, a documentary film
maker, came up with a concept which she called ‘Work in
Progress”. The concept note, which was registered with the
Film Writers Association, Mumbai, disclosed the idea of a
reality show on TV which would follow citizens from around
the country as they took the initiative to solve a civic
problem of their choice in their locality. The show would
follow the citizens and telecast the hurdles that the citizens
face in solving the problem – the bureaucracy, the general
attitude of the people and the final outcome. The concept
note was sent to CNN-IBN, which initially took great interest
in it and a number of meetings with directors, line managers
and producers followed. Discussions continued until
February 2007 and then stopped abruptly. On April 19,
2007, Ms. Juvekar-Chiang saw promotions of the program
titled “Summer Showdown” on CNN-IBN which, in the
words of Rajdeep Sardesai, CNN-IBN’s editor in chief,
“promised to be a captivating account of citizens from
across the country on the civic conditions of their cities.” Mr.
Sardesai further stated, “With inclusive journalism as our
mantra, CNN-IBN hopes to not only give voice to the plight
of citizens but also elicit among others a sense of civic
responsibility.” The program was to be aired daily in the
form of short three-minute stories on CNN-IBN’s news. Ms.
Juvekar filed a petition claiming injunction and damages on
the grounds of breach of confidentiality and copyright
infringement on May 21, 2007 before the Mumbai High
Court.
Decision The court held that as in the Zee Telefilms case,
confidentiality can be claimed for a concept or an idea. The
court also talks about the reasons for such a position saying
that if nothing like it exists in the television sector then any
 broadcaster might illegitimately use some individual’s idea.
So the defendant was held liable for breaching the
confidentiality of the plaintiff and the court agreed to give
the plaintiff ad-interim relief.
ZEE TELEFILMS LTD. V SUNDIAL COMMUNICATIONS 2003 (27) PTC 457 (BOM)
Facts This suit has been brought by the plaintiffs against the
defendants for breach of copyright and misuse of
confidential information. The plaintiff is a company engaged
in the business of television programming, video
programming, multimedia programming and feature films,
television serial production etc. They come up with various
creative concepts for television programme which are then
registered with the Film Writers’ Association. The plaintiffs
worked on various concepts and came up with a concept
titled ‘Kanhaiyya’.
The concept was thereafter worked on with the title
changed from ‘Kanhaiyya’ to ‘Krish Kanhaiyya’ and a
detailed concept note, character sketches, detailed plot of
first episode and ten episodic plots were sent to the
defendant. The plaintiffs met the defendants and certain
price negotiations took place after which they didn’t hear
from the defendants. Then they pursued this same concept
with Sony Entertainment Television who declined to
produce this because the defendants had started work on
the concept. The plaintiffs contended that the defendants’
fringing copy is distinctly similar to that of the original work
of the plaintiffs in all material ways with a few superficial
changes. It was further contended that there is clear breach
of confidentiality by the defendants since plaintiffs’ work
was disclosed to the defendants in confidence on the
understanding that the defendants should not use it in any
way except through the plaintiffs.
Decision The court emphasizes that the law of breach of confidence
is different from the law of copyright as the law of
confidentiality also includes an unpublished idea that may
have simply been disclosed in a relationship of trust. This
case according to the court definitely lies under breach of
confidentiality as there are certain similarities between the
plaintiff’s concept and the concept of the television
programme which was to be produced by the defendants.
This is a landmark judgement as it enunciates the principle
of breach of confidentiality very explicitly in the case of
copying of a concept or creative idea.
Meaning of copyright -Section 14 Copyright Act, 1957
Meaning of copyright.—For the purposes of this Act, “copyright” means the exclusive
right subject to the provisions of this Act, to do or authorise the doing of any of the
following acts in respect of a work or any substantial part thereof, namely
(a) in the case of a literary, dramatic or musical work, not being a computer
programme,—
 (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 an 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 programme,—
(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 programme:
to sell or give on commercial rental or offer for sale or for commercial rental any copy
of the computer programme Provided that such commercial rental does not apply in
respect of computer programmes where the programme itself is not the essential
object of the rental.
(c) in the case of an artistic work,—
(i) to reproduce 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 communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation
to 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 copy has been sold or given on hire on earlier occasions;
(iii) To communicate the sound recording to the public. Explanation.— For the
purposes of this section, a copy which has been sold once shall be deemed to be a
copy already in circulation.
Doctrine of Exhaustion- basically means that an owner of a particular good
ceases to have control over further sale of his goods once he has made a valid
transaction of sale. In other words, if the trademarked goods are once put on the
market by the owner or by his consent, and once purchased legitimately, the
trademark owner or any one deriving his title from him cannot prevent sale of such
good, as the exclusive right to sell goods bearing the mark is ‘exhausted’ by the first
sale; then the exclusive right to sell goods bearing the mark cannot be exercised
twice in respect of the same goods. Hence, this doctrine is otherwise called as the
doctrine of first sale.
John Wiley & Sons & Ors. v. Prabhat Chander Kumar Jain & Ors 2010
(44) PTC 675
Facts The instant case was filed by the Plaintiff No.1 John Willey &
Sons Inc., and Wiley India Pvt. Ltd against the defendants
after it was brought to their notice that Delhi based bookseller,
trading under a website 'www.alibris.com' for offering online
sale and delivery worldwide of the Low Price Editions of the
plaintiffs’ publications. Plaintiffs in this case, Pearson
Education, John Wiley & Sons etc. who are foreign publishing
houses (No. 1,3,5) and their exclusive licensees (No. 2,4,6) all
of whom were subsidiaries, were in the business of selling
low-priced editions of advanced educational books in the
Indian sub-continent. There was a notable qualitative
difference between the American edition and the Indian edition
of the Plaintiff’s books in terms of quality of paper, printing and
accompanying online features. The content however was
same. The price difference between the Indian version and the
U.S. version was substantial, upto 150 U.S. dollars for some
editions. The Defendants, cunning Indian businessmen that
they were, setup a website, to sell the low priced Indian
editions to customers in the U.S.A. The Plaintiffs therefore
filed the present lawsuit in India to shut down the Defendant’s
business and website.
Decision After careful analysis of the relevant acts and legal
precedents, the Court observed that the doctrine of exhaustion
did not curtail the rights of the copyright owner. It noted that
the same was affected by way of licenses where the exclusive
licensees were granted limited rights subject to the conditions
and limitations imposed by the agreement. The applicability of
first sale doctrine would partially exhaust the rights of the
licensee, but it cannot defeat those of the copyright owner.
Furthermore, noting that no express provision for international
exhaustion of rights was present in the Indian law, the Court
held that it would be appropriate to confine the applicability of
the same to regional exhaustion only. The Court finally passed
an order of injunction, restraining the defendants from
indulging in any kind of distribution or circulation of the LPEs
outside the designated territory
Idea-Expression Dichotomy Under Copyright Law
The idea-expression dichotomy was formulated to ensure that the manifestation of
an idea (i.e. an expression) is protected rather than the idea itself. The doctrine has
been widely used in the United States and is not really alien to Indian jurisprudence.
Courts have repeatedly opined that ideas per se are not copyrightable; only the
expression of an idea is copyrightable. An idea is the formulation of thought on a
particular subject whereas an expression constitutes the implementation of the said
idea. While many persons may individually arrive at the same idea, they can claim
copyright only in the form of an expression to this idea. Such expression must be a
specific, particular arrangement of words, designs or other forms. Thus, such a
doctrine allows for several expressions to be available for the same idea.
G Anand v. Deluxe Films AIR 1978 SC 1613
Facts The plaintiff was the author of a play called Hum Hindustani. In
1954, the defendant Mohan Sehgal sent a letter to the plaintiff
 expressing his desire to make a movie based on the play. The
plaintiff and the defendant met and discussed the entire play.
The defendant did not commit anything, but the plaintiff later
came to know that the defendant released a movie titled New
Delhi. After watching the movie, the plaintiff was of the opinion
that it is based on the story of his play. So he filed a suit
against the defendant for permanent injunction and damages.
Both the District Court and the High Court ruled against the
plaintiff on a finding of the facts. The case finally reached the
Supreme Court of India.
Decision The Supreme Court held that the movie cannot be considered
to be an infringement of the script of the play. The reason it
gave was that though the idea behind both the stories was the
same, the manner in which both had been expressed were
vastly different from each other. Therefore it cannot be held to
be copyright infringement.
Warner Bros Entertainment Inc v. V.G. Santosh
CASE BASED ON COMMERCIAL RENTAL
Facts
The plaintiff‟s were associated with the business of film
production. The defendant bought legal copies of the
cinematographic films from the United States and imported
them into India to offer the same for hire or rent. Plaintiff‟s filed
a suit for permanent injunction and damages, claiming that the
defendant has infringed their copyrights with respect to
cinematographic films by hiring and offering to hire or rent in
India. The issues raised were whether the said acts of the
defendants of importing and giving to hire or rent in India
copies of the Cinematographic films which were authorized for
sale and rental only in a particular territory outside India would
constitute infringement of copyright under Section 51(a)(i).
The defendant contented that the said copies were
legitimately purchased in the course of trade, being rental
copies which can be used for the purpose of rental in India
and thus would not constitute infringement. The defendants
submitted that validly sold copies of DVD‟s could be given for
hire in India notwithstanding the restrictions imposed on each
copy regarding its commercial use. It was further contented by
the defendant that Section 14(d) read with Section 2(m)
incorporates the principle of International Exhaustion and
therefore once the plaintiff placed their copies in the US
market and they were purchased legitimately, long arm
 restrictions expressed on the concerned copies would be of no
consequence and therefore it would lose or exhaust the right
to control further sale or commerce on that copy.
Decision
Justice Bhat noted Section 14(d) of the Act stated that in
respect of cinematographic works, “copyright” would mean the
doing or authorizing the doing of the following:
i. Making a copy of the film
ii. Selling or giving 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. Communicating the film to the public
Thus, the content of copyright in case of cinematographic
works is different from that in the case of literary works,
dramatic works etc. The phrase “copy in circulation” was found
in describing the copyright vis-à-vis literary, musical and
dramatic works. It found no application in cinematographic
works. On a plain reading of Section 14, the phrase was used
to limit the copyright in the case of literary, musical and
dramatic works only. In defining copyright vis-à-vis
cinematographic works, the phrase was not used at all. Thus,
Justice Bhat noted that while the exhaustion principle would
perhaps be applicable to literary, musical and dramatic works;
that would not mean that the principle also applied to
cinematographic works. The Single Judge further observed
that the doctrine of exhaustion in copyright works is limitedly
applicable and applies only in relation to the class of
copyrights in Section 14(a) and to the extent specified in
Clause (ii).
Court came to the conclusion that the defendant’s actions
would amount to infringement of copyright.
ADAPTATIONS-
In India, the Copyright Act of 1957 defines adaptations in the following manner in
Section 2(a): “Adaptation” means,-

(i) in relation to a dramatic work, the conversion of the work into a non-dramatic
work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into
a dramatic work by way of performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any
version of the work in which the story or action is conveyed wholly or mainly
by means of pictures in a form suitable for reproduction in a book, or in a
newspaper, magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription of the work;
and
(v) in relation to any work, any use of such work involving its re-arrangement or
alteration

Macmillan V KJ Cooper AIR 1924 PC 75

‘Sweat of the brow’ theory – originality derives merely from the fact that sufficient
labour, skill, capital and effort (whether physical or otherwise) has been applied.
FACTS
Action was brought by McMillan and Company to restrain
the respondent-firm who was carrying on the trade and
business of publishers of educational books, from printing,
distributing or otherwise disposing of copies of the book
published by the appellants. The ground on which the relief
was claimed was that the appellants had a copyright in the
book entitled "Plutarch's Life of Alexander, Sir Thomas
North's Translation and that the respondent published
subsequently a book entitled "Plutarch's Life of Alexander
the Great, North's Translation", as it had infringed the
copyright to which the appellants were entitled in the earlier
compilation.
DECISION
The Privy Council held that the selection of passages by
Macmillan from North’s translation had been made with a
view to the requirements of school and university students.
Labour, sound judgment and literary skill were all needed to
fulfil this objective, and this was enough to attract copyright
protection of the selected passages. Thus expenditure of
labour, skill and capital to impart to the product some
quality of character which the raw material did not possess
will result in a compilation having copyright protection.
Amar Nath Sehgal v. Union of India, Delhi High Court 2005 PTC (30) 253
(CASE BASED ON AUTHORS SPECIAL/MORAL RIGHT SEC 57)
Facts Amar Nath Sehgal (hereinafter referred to as the plaintiff)
was a renowned artist and sculptor. He created a mural to
be placed in the lobby of Vigyan Bhawan, a premier
convention centre of Government of India, in New Delhi. It
was done at the direction of the appropriate authorities of
 the convention centre. In the year 1979 the plaintiff came to
know that the mural created by him was removed from the
lobby of the convention center away from the public view.
This was done without the prior consent or permission of
the plaintiff. Thereafter the plaintiff made several requests
to the appropriate authorities to restore the mural. However,
in spite of that the mural was not restored .Aggrieved by
this the plaintiff filed a suit before the Delhi High Court
under the Section 57 of the Copyright Act, 1957 for violation
of his rights. He sought a permanent injunction against the
authorities of the convention center, thereby restraining
them from distorting or damaging his mural. And to further
pay him the damages for the same.
Decision The case was heard by the Single Judge Bench of the Delhi
High Court comprising of Justice P Nandrajog. He observed
that the author had a express right in law to preserve,
protect and nurture his creations through his moral rights.
Further that the Section 57 of the Copyright Act enables to
protect the cultural heritage of the country through the
moral rights of the artist. The section provides that the
author has the right to restrain or claim damages in respect
of any distortion, mutilation, modification or other act in
relation to the said work which is done before the expiration
of the term of copyright if such distortion, mutilation,
modification or other act would be prejudicial to his honour
or reputation.

Thus, the court ruled that the plaintiff had the right to
maintain an action under Section 57 even though the
copyright of the mural vested with the authorities of the
convention center. It further held that the authorities not
only violated the plaintiff's moral rights with respect to the
mural but also violated the integrity of the work in relation to
the cultural heritage of the country as such. Hence, the
court ordered the authorities of the convention center to
return the remainder of the mural to the plaintiff. And also to
pay the damages to the plaintiff for all the damage caused
to his work.
OWNERSHIP OF COPYRIGHT
GEE PEE FILMS PVT LTD VS PRATIK CHOUDHARY
(CASE BASED ON CONTRACT OF SERVICE VS CONTRACT FOR SERVICE)
Plaintiff is a music company engaged in the business of music recording and deal
with recordings of audio-video and film and non-film songs, having head office at
Ballygunj, Circular Road, Kolkata. The defendant No. 1 is a singer of Bengali songs
and defendant No. 2 is engaged in the business of manufacture and sale of
cassettes, compact disk and other song recoding systems. The defendant No.3 is
the song lyricist and music composer, and defendant No.4 is a relative of defendant
No.3 and claimed to be a lyricist, defendant No.5 is also a lyricists and music
composer. In 1999 the plaintiff commissioned defendant to compose Bengali non
film lyrics and music proposed to be sung by defendant No.1 and proposed to
release those by way of cassettes and other sound recording systems. On payment
by the plaintiff defendant No.3 wrote the lyrics and composed the song titled 'Tanche
Jakhan' and defendant No 5 wrote the lyrics for another song 'Tomar Chhoante'
which also sung by defendant No.1. The tapes containing two songs were prepared
and retained by the plaintiff and he claimed ownership for having paid adequate
consideration to defendant No.2 and No. 5. Subsequently the plaintiff came to know
that defendant No.1 and 2 had released a music cassette containing the similar
songs with few marginal cosmetic changes to the lyrics and made of fraudulent
attempts to pass off the said two songs as different numbers by purporting to alter
the titles of the said 2 numbers. The plaintiffs claim to be the owner of the two songs
and in addition owner of the sound recording thereof. The Court granted and ex-
party injunction in favour of the plaintiff. The defendants filed an appeal. The main
contention of the defendants was that the copyright act provided ownership to the
composer of the music.

As per defendants unless it is alleged and established that those songs were written
and composed in the course of plaintiffs employment under a contract of service or
apprenticeship as provided in Section 17( c) of the Act., the plaintiff cannot have any
copyright over the said songs. In terms of Section 17 of the Copyright Act, the first
owner of the copyright subject to the provisions of this Act, the author of a work shall
be the first owner of the copyright therein provided that (c) In the case of a work
made in the course of the authors employment under a contract of service or
apprenticeship, to which clause (a or b) does not apply, the employer shall, in the
absence of any agreement to contrary, be the first owner of the copyright therein.
The defendants further contended that the plaintiff couldn't claim any copyright even
over the sound recording based on Section 2(uu) states producer in relation to a
cinematograph film or sound recording, means a person who takes the initiative and
responsibility for making the work. The plaintiff opposed the above contentions of the
defendant and stated that the songs having been written and composed on the basis
of payment of the commission it should be presumed that the defendants wrote and
composed those songs in the course of employment, under a contract of service and
as such the plaintiff should be held to be the owner of the copyright on the lyrics and
music as provided in Section 17 (c) of the Act. The plaintiffs had taken the initiative
of the recordings and borne all expenses by making payment of hire charges of the
studios and remuneration to the musicians. The relevant passage from Copinger and
Skone James on copyrights, referred earlier, was taken to prove that when a person
makes necessary arrangements for recording a work he should be presumed to be
the producer of the work. It is a fact that defendant No.3 and 5 being the lyricist and
composer of the disputed songs was the owner of the copyright over the songs. It is
for the plaintiff to prove that these works were made in the course of employment
under a contract of service and that there was no agreement to the contrary relating
to the owner of the copyrights. The plaintiffs stated that it had commissioned the
defendants to compose the songs. The word commissioned means according to
oxford advanced learners dictionary means 'give somebody the job of making
something, for example: He commissioned an artist to paint a statute of his wife, on
payment. It also means to give an order.

On examining the facts of the case of the High Court of Calcutta held that the plaintiff
cannot misinterpret the definition of producer as given in Section 2(uu) of the Act. In
order to be a producer a person must take initiative as well as the responsibility of
the recording. In addition to paying the expenses of recording including hire charges
of the studio and remuneration of the musician, a person must also take the
consequential legal liability for such recording. The court therefore ·came to the
conclusion that the plaintiff did not prove a prim facie case of copyrights in his favour
and the plea for injunction was not granted and the earlier decision was vacated.
University of London Press Limited v University Tutorial Press (1916) 2 Ch D
601
DISCUSSED EARLIER
COPYRIGHT INFRINGEMENT SECTION 51

Section 51(a) (i) of the Indian Copyright Act, 1957- Copyright in a work shall be
deemed to be infringed when any person, without a licence granted by the owner of
the copyright or the Registrar of Copyrights under this Act or in contravention of the
conditions of a licence so granted or of any condition imposed by a competent
authority under this Act does anything, the exclusive right to do which is by this Act
conferred upon the owner of the copyright.

Means -Copyright infringement is the use of works protected by copyright law without
permission, infringing certain exclusive rights granted to the copyright holder, such
as the right to reproduce, distribute, display or perform the protected work, or to
make derivative works
Leading Decided case- G Anand v. Deluxe Films AIR 1978 SC 1613 discuused
earliar
Neighbouring Rights ("NR" for short) are the rights of performers and makers of
sound recordings to be paid fairly for the broadcast and public performance of their
works.
Section 37 of The Copyright Act, 2004 provides “Broadcast reproduction right” It
says:

(1) Where any programme is broadcast by radio-diffusion by the Government or any

other broadcasting authority, a special right to be known as "broadcast reproduction
right" shall subsist in such programme.

(2) The Government or other broadcasting authority, as the case may be, shall be
the owner of the broadcast reproduction right and such right shall subsist until
twenty-five years from the beginning of the calendar year next following year in
which the programme is first broadcast.

(3) During the continuance of a broadcast reproduction right in relation to any

programme, any person who, ---

(a) without the licence of the owner of the right –

( i ) rebroadcasts the programme in question or any substantial part thereof; or

( ii ) causes the programme in question or any substantial part thereof to be

heard in public; or

(b) Without the licence of the owner of the right to utilise the broadcast for the
purpose of making a record recording the programme in question or any substantial
part thereof, makes any such record, shall be deemed to infringe that broadcast
reproduction right.
Section 39 of the Act puts a slight leniency to the Act. The Copyright Act, 1994 has
recognized certain acts which do not cause any kind of infringement upon the
broadcasting reproduction rights. They are:
• Making of any sound or video recording for private purpose or for bonafide
teaching or research; or
• Use consistent with fair dealing of excerpts of broadcast in reporting a current
event or for a bonafide review, teaching or research; or
• Any such act with necessary adaptations and modifications which do not constitute
infringement of copyright under Section 52 of the Act.
The exceptions are hereby provided so that a person who is doing a broadcast on
his own risk and which is good for public at large would be considered as a good
cause for the society. These types of broadcasting events are also considerable for a
research or to enhance knowledge for a particular subject.
38. Performer’s right –

(1)Where any performer appears or engages in any performance, he shall have a

special right to be known as the "performer’s right" in relation to such performance.

(2) The performer’s right shall subsist until twenty-five years from the beginning of
the calendar year next following the year in which the performance is made.

(3) During the continuance of performer’s right in relation to any performance, any
person who, without the consent of the performer, does any of the following acts in
respect of the performance or any substantial part thereof, namely;-

a. makes a sound recording or visual recording of the performance, or

b. reproduces a sound recording or visual recording of the performance,

which sound recording or visual recording was-

a. made without the performer’s consent, or

i. made for purposes different from those for which the performer
gave his consent, or

ii. made for purposes different from those referred to in Section

39 from a sound recording or visual recording which was made
in accordance with Section 39, or

1. broadcasts the performance except where the

broadcast is made from a sound recording or visual
recording other than one made in accordance with
 Section 39, or is a rebroadcast by the same broadcasting
organization of an earlier broadcast which did not infringe
the performer’s right, or

2. Communicates the performance to the public otherwise

than by broadcast, except where such communication to
the public is made from a sound recording or visual
recording or a broadcast.

Shall, subject to the provisions of section 39, be deemed to have infringed the
performer’s right.

(4) Once a performer has consented to the incorporation of his performance in a

cinematograph film, the provision of sub sections (1), (2) and (3) shall have no
further application to such performance.

ACTS NOT AMOUNTING TO INFRIDGEMET

Devendrakumar Ramchandra Dwivedi Vs State Of Gujarat 2010 (43) PTC 303 Guj
CASE BASED ON FAIR DEALING
The present case was a Public Interest Litigation (PIL) filed by the Petitioner on the
ground that the royalty fee charged by Respondent No.4 (a Copyright Society formed
under Section 33(3) of the Copyright Act, 1957) in respect of songs, musical works
etc that are intended to be performed by various amateur groups, clubs, hotels etc
during the religious ceremony of Garba/Dandiya is unfair as the said musical work
forms a part of the cultural and traditional heritage of Gujarat State and the same has
been in public domain for generations despite the fact that it may have been
incorporated in films/movies. The defence of fair use under sections 52(1) (k),
52(1)(l) and 52(1)(za) was pleaded. The said petition was opposed by the
Respondent No.4 on the ground that unless a specific permission is sought and
adequate royalties are paid the performance/organization of any musical work etc
will result in infringement of the exclusive rights of its members as per sections 14(a)
read with 51 of the Copyright Act, 1957. The present PIL was dismissed by the
Division Bench of the Gujarat High Court on the ground of lack of Locus Standi
However, the following observations in respect of the „Doctrine of Fair Use‟ were
made by the Hon‟ble Bench:
The main thrust of Section 52(1) of the Copyright Act, 1957 is to exempt live
performance of such works when there is no commercial purpose and when there is
no admission charge and/or when admission proceeds are used exclusively for
educational, religious or charitable purpose and not for private personal financial
gain. Above principle is generally called fair or honest use doctrine which constitutes
the most significant limitation on the exclusive rights held by a copyright owner. 'Fair
Use Doctrine' was first articulated by Justice Story in Folsom v. Marsh 9 F.Cas. 342
in the year 1841. Learned Judge, opined that quoting copyrighted material in the
course of preparing a biography or a critical commentary might be excusable, but not
if so much is taken, that the value of the original is sensibly diminished, or the
labours of the original author are substantially to an injurious extent appropriated by
another. Fair use doctrine has another object to achieve is to promote the progress
of science and the useful arts. Fair use doctrine comes into play when a too literal
enforcement of the copyright owner's rights would operate to the detriment of the
public interest in access to and dissemination of knowledge and unauthorized
copying can be tolerated without significant economic injury to the copyright owner.
Fair use doctrine is mixed question of law and facts and if the use is commercial
rather than non-profit, it is presumed to be unfair and to have a likely adverse impact
on the market for the owners work, the burden is on the organizers to prove
otherwise.
Question whether certain acts fall within exempted categories enumerated under
Section 52(1) of the Act has to be decided according to facts of each case. The
theory of presumed intention or fair use and infringement, public interest etc. are to
be judged on the material we get in a given case. Difficulty would arise when such
copy rights are exploited for commercial purpose, which may give rise to a complaint
of infringement.‟
Rameshwari Photocopy case
The initial lawsuit had been brought in 2012 by three leading global publishers,
namely Oxford University Press, Cambridge University Press and Taylor & Francis.
They alleged that by creating and compiling course packs for students (comprising
copyrighted excerpts from books), Delhi University and its photocopying agent,
Rameshwari Photocopy Service, were indulging in heavy duty copyright
infringement.
Subsequently, two associations – Association of Students for Educational Access to
Knowledge and Society for Promotion of Equitable Access to Knowledge –
comprising students and faculty members and educationists were granted
permission by the court to intervene in the dispute as defendants and support the
stand taken by Delhi University
Delhi High Court in a fairly detailed judgment, had ruled in favour of the defendants,
noting that the photocopying was perfectly legal under the terms of the educational
exception contained in section 52(1)(i) of the Indian Copyright Act, which provides
that any “reproduction” of copyrighted material in the “course of instruction” by
“teachers or students” is kosher and does not amount to copyright infringement.

PART- II
PATENT LAW
PATENTABLE INVENTATION
Clause (j) in Section 2, which defines patentable invention as "invention means a
new product or process involving an inventive step and capable of industrial
application".

Clause(ja) in section 2 which defines "inventive step" as a feature of an invention

that involves technical advance as compared to the existing knowledge or having
economic significance or both and that makes the invention not obvious to a person
skilled in the art

Clause (l) in section 2 which defines "new invention" as any invention or technology
which has not been anticipated by publication in any document or used in the
country or elsewhere in the world before the date of filing of patent application with
complete specification, i.e. the subject matter has not fallen in public domain or that it
does not form part of the state of the art.
(1) Invention must be New
Novelty is a fundamental requirement and an undisputed condition of patentability.
An invention will not be novel if it has been disclosed in the public through any type
of publication anywhere in the world. For example, a lot of hue and cry has been
raised in India when the patent was granted to turmeric products in United States on
the ground that it is not new and it is already published in Indian Texts and use of
Turmeric preparations has been made in India since times immemorial. Further .the
Newness of an invention depends upon the state of existing knowledge as well as
the similar inventions in that particular field.
Prior use of invention before filing an application for patent can also destroy novelty.
Oral description of the invention in some seminar/conference can spoil novelty if the
patent application is not filed within a stipulated time period, which is six months in
India.

(2) Useful
An invention even though it is new as well as non-obvious to a person skilled in the
art to which it relates cannot be granted a patent unless and until it is of some use to
the Mankind .Therefore, a useless invention though may be new and non-obvious
will not be granted the status of a patent.

(3) Non Obvious to the person skilled in the art to which the invention relates
to
The Invention by any person in any field of art shall be of such a nature that a
person, who is also skilled in the art to which this invention relates, shall not be able
to come to that invention unless he is acquiring some special mental skills

EXCLUSIONS WHICH CANNOT BE PATENTED IN INDIA

A novel and non-obvious innovation that has an industrial application is patentable in
India. The Indian Patent Act does not provide any definition of the term “patent”.
Instead, it has only provided for inventions which are not patentable as under
Chapter III of the Act. Any invention regardless of satisfying the novelty, utility, and
non- obviousness test, if falls within any criteria under Section 3 and 4, is not
patentable. Section 3 specifically mentions exclusions which cannot be patented in
India.

1. An invention which is frivolous or which claims anything obviously contrary to

well established natural laws.
2. An invention which could be contrary to public order or morality or which causes
serious prejudice to human, animal or plant life or health or to the environment.

3. The mere discovery of a scientific principle or the formulation of an abstract

theory or discovery of any living thing or non-living substance occurring in
nature.
4. The mere discovery of a new form of a known substance which does not result
in the enhancement of the known efficacy of that substance or the mere
discovery of any new property or new use for a known substance or of the mere
 use of a known process, machine or apparatus unless such known process
results in a new product or employs at least one new reactant.
• Explanation.—For the purposes of this clause, salts, esters, ethers,
polymorphs, metabolites, pure form, particle size, isomers, mixtures of
isomers, complexes, combinations and other derivatives of known
substance shall be considered to be the same substance, unless they differ
significantly in properties with regard to efficacy;
5. A substance obtained by a mere admixture resulting only in the aggregation of
the properties of the components thereof or a process for producing such
substance;
6. The mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way;
7. A method of agriculture or horticulture;
8. Any process for the medicinal, surgical, curative, prophylactic diagnostic,
therapeutic or other treatment of human beings or any process for a similar
treatment of animals to render them free of disease or to increase their
economic value or that of their products.
9. Plants and animals in whole or any part thereof other than micro organisms but
including seeds, varieties and species and essentially biological processes for
production or propagation of plants and animals;
10. A mathematical or business method or a computer programme per se or
algorithms;
11. A literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions;
12. A mere scheme or rule or method of performing mental act or method of playing
game;
13. A presentation of information;
14. Topography of integrated circuits;
15. An invention which in effect, is traditional knowledge or which is an aggregation
or duplication of known properties of traditionally known component or
components.

DHANPAT SETH & OTHERS (PLAINTIFFS/ PATENTEE) VS. NIL KAMAL PLASTIC
CRATES LTD (2008)

Facts of the case:

The plaintiff Dhanpat Seth had been granted Patent No: 195917 for a device used
for manually hauling agricultural produce. The device was ‘visualized’ by them in
1999 after which they developed it over a period of time and applied for a grant of
patent in 2000. The patent was granted in their favour on 11.7.2005. The plaintiffs in
this case actually set out their claims in the plaint. As already mentioned the
patented device was one used for hauling agricultural produce. The patented device
was designed in such a way so as to adapt it contours to the back of a person and it
had a set of buckles and ropes to adjust the harness to fit people of different heights
and sizes.
Plaintiff’s averments: The plaintiff had alleged that the defendant had infringed his
patent by manufacturing the afore-described patent device and selling it to the
Department of Horticulture, Himachal Pradesh Government amongst others. The
plaintiffs filed a suit praying for a permanent injunction restraining the defendant from
infringing the patented device and also for damages to the tune of Rs. 51 lakhs. The
plaintiff also filed for a temporary injunction restraining the defendant from
manufacturing the patented invention during the course of the trial. The single judge
however refused to grant this interim relief and thus the matter was appealed to the
division bench.

Defendants defence: The defendant argued that the plaintiff should not have been
granted the patent in the first place since the device in question was nothing but an
imitation of an age-device called the ‘Kilta’) which had been used in Himachal
Pradesh for centuries. The defendants thus argued that the invention lacked novelty,
more so since they had started manufacturing the same device through their agents
back in 2001. The only difference in the patented invention was that it was made out
of nylon instead of the traditional bamboo. The question thus arose whether this
could actually be considered an ‘inventive step?
DECISION-
As the case progressed the defendants successfully proved to the Court that the
Kilta (patented article of the plaintiffs) is a mere imitation of traditional Kilta made by
bamboos and has been in use since times immemorial. As a result, the Court not
only rejected the plaintiffs request for permanent injunction but also that granted
Indian Patent No. 195917. Thus, the plaintiff was not able to establish the case at a
prima facie level, as the patent in question was revoked.

Procedure for filing Patent Application

The Patent Act, 1970 lays down a procdure for the grant of patent to an
inventor to exploit his invention for 20 years subject to fulfillment of certain
conditions. The procedure for obtaining a patent consists of the following steps:

(i) Filing or submission of application (Section 6 to 11).

(ii) Publication and examination of application (Section 11A).
(iii) Request for examination (Section 11B).
(iv) Amendment or division of application (Section -14)
(v) Potential infringement and Controller's power
(vii) Opposition proceedings to grant of patent.
(viii) Grant of patent.

(a) Pre-Grant Opposition (Section 25(1)) - Where an aplication for a patent has
been published but a patent has not been granted, any person may oppose against
the grant of patent to the Controller on the following grounds:

(i) Wrongfully obtaining.

(ii) Prior publication in any Indian specification or prior publication in any

 other document in India or elsewhere.

(iii) Prior claim in a concurrent application.

(iv) Prior public use or public knowledge in India.

(v) Obviousness and lack of inventive step.

(vi) Invention not patentable under the act.

(vii) Insufficient description of the invention.

(viii) Failure to disclose information relating to foreign applications, and

(ix) Convention application not made within the prescribed time.

(x) Incorrect mention of source or geographical origin of biological

material.

(xi) Invention anticipated with regard to traditional knowledge of any

community, anywhere in the world.

(b) Post grant opposition (Section 25(2))

According to Section 25(2) after the grant of patent and before the expiry of
the patent, any interested person by giving a notice to the controller, within one year
from the date of publication of grant of a patent in the official journal may oppose the
patent.

A person interested includes any person engaged in or in promoting research

in the same field as that to which the invention relates.

J. MITRA AND CO. PVT. LTD. V. ASSISTANT CONTROLLER OF PATENTS AND

DESIGN (2008)

FACTS- In short J Mitra filed for a patent and after the patent was published, a pre-
opposition application was filed by Span Diagnostics. The opposition failed and the
patent was eventually granted. Thereafter, Span filed an appeal against the
Controller’s decision in the High Court under the original section 116 of the Patents
Act (which permitted appeals against the Controller’s decision in a pre-grant
opposition to be filed before the High Court). It all seemed quite simple and
straightforward until J Mitra challenged Span’s appeal before the HC stating that the
appeal “must be dismissed as being misconceived.”
This argument was based on the fact that at the time that the appeal was filed in the
HC, the government had passed several amendments to the Patents Act whereby
(1) no appeals could be filed against decisions of the Controller in a pre-grant
opposition (amendments to the old section 116 and establishment of IPAB) and
(2)post-grant opposition could be filed before the Controller (Section 25(2)) and
(3) all appeals against the Controller’s decision in post grant opposition had to be
filed before the IPAB (section 117A).
Unfortunately, although all these amending laws were passed by the Parliament and
received the assent of the President, not all of provisions were notified/brought into
force.

Issue: (i) Whether appeal against decisions made by the Controller of Patent
pertaining to "pre-grant oppositions" had to be preferred to Appellate Board or to the
High Court in view of the promulgation of the Patent (Amendment) Act, 2005.

(ii) Whether said amendment will affect an appeal preferred to High Court before
its enforcement.

Decision: Court held that an Act cannot be said to commence or to be in force

unless it is brought into operation by legislative enactment or by the exercise of
authority by a delegate empowered to bring it into operation.

Finally court held that taking into account the complesities involve in
this case, on account of a hiatus created by reason of the law not being brought into
force in time, the first appeals, filed in the High Court, should remain in the High
Court. The said appeals would be heard and disposed of by the High Court in
accordance with law under Section 116 of the said 1970 Act.

Indian Network for People Living with HIV/AIDS v. UOI (2008)

Issue: Can patent be granted without giving hearing to opponent under Section
25(1) of the Patent Act, 1970 and Rule 55 of the Patent Rules, 2003?

Decision: In this case the Court set aside the patent granted to the petitioner and
held that petitioners have the right for a hearing under the Patent Act and Rule.

M/s UCB Farchim Sa V. M/s Cipla Ltd. (2010)

Issue: Whether an appeal lies before the Appellate Board against orders of the
Controller of Patents in pre-grant oppositions even though there is no explicit
provision for the same in the Patent Act?

Decision: Court held that refusal of pre-grant opposition by controller is not

appealable to the IPAB, however an order of refusal of patent application is
appealable to the IPAB and hence the rejection of a patent application by the
Controller of Patents in a pre-grant stage is appealable to the IPAB
Neon Laboratories Pvt. Ltd. V. Troikaa Pharma Limited (2011)

Issue: If the person opposing the grant forwards his response and also prays
that he should be heard on the amended claims as well, then, whether it is
incumbent upon the authorities to grant personal hearing?

Decision: Court held that if the opposition is raise to the grant, then, until the same
is dealt with, no patent can be granted. If the original claim/application is amended,
as in this case, and the amendments are also opposed, then, a personal hearing to
the objector on the amended claims is required to be given if specifically requested.
That is the scheme of Section 25(1) and Rule 55 which are to be considered and
read together.

Court finally set aside the grant of patent and directed the Controller to
give personal hearing to the petitioner and deliver a reasoned order.

4. Licensing of Patents - Special reference to public health issues (S. 92

and 92A) and parallel imports (S. 107A); Compulsory and Voluntary Licences

Compulsory Licensing

Section 84 provides for the grant of compulsory license. At any time after the
expiration of three years from the date of grant of a patent, any person interested
may make an application to the Controller for grant of compulsory licence on patent
on any of the following grounds:

(i) that the reasonable requirements of the public with respect to the
patented invention have not been satisfied, or

(ii) it is not availabe to the public at affordable price, or

(iii) that the patented invention is not worked in the territory of India.

An application for the grant of compulsory licence may made by any person
including licence holder.

Factors taken into account for the grant of compulsory licence

Section 84(6) provides that while considering the application for compulsory license,
the Controller must take into account:-

(i) Nature of the invention.

(ii) Time which has elapsed since the grant of the patent.

(iii) the ability of the applicant to work the invention to the public
advantage;

(iv) Capacity of the applicant to undertake the risk in providing capital and
working the invention, if the application were granted;

(v) whether the applicant has made effort to obtain a licence from the
patentee on reasonable terms and conditions and such efforts have not been
successful within a reasonable period.

The controller is not required to take into account matters subsequent to the
making of the application.

Reasonable requirements of the public

 Section 84(7) clarifies that the reasonable requirements of the public will be
deemed as not satisfied if by reason of the refusal of the patentee to grant a license
on reasonable terms, an existing trade or industry or the development thereof or the
establishment of any new trade or industry in India or the trade or industry of any
person or class of persons trading or manufacturing in India is prejudiced.

Bayer Corporation V. Natco Pharma Limited(2014)

An SLP was filed in the SC by the appellant against the judgment of Bombay
High Court. The SC did not entertain it and dismissed the petition. In this case the
Controller found that Bayer Corporation did not discharge its obligation in satisfying
the reasonable requirements of the public as an insignificant quantum of the drug
had been made available to the public in the three years since grant of the patent.
After hearing the both parties controller found that Natco Pharma has fulfilled the all
requirement of Section 84, therefore the Controller granted India's first compulsory
licence under Section 84 of the Act to the Natco Pharma Ltd. Later this decision
was upheld by the Appellate Tribunal and the Bombay High Court
Compulsory Licensing of patents with Special Reference to public health issue

Section 92 provides for special provisions where the Central Govt has been
given the power to notify the compulsory licence. Under Section 92(1) a compulsory
licence can be granted by notification by the Central Govt, in circustances of:

(i) National Emergency or

(ii) Extreme Emergency, or
(iii) Public Non-commercial use.

Section 92(3) further provides that the circumstances of National Emergency,

or extreme Emergency or of Public non-commercial use include:

(i) Public health crisis relating to AIDS.

(ii) HIV.
(iii) Malaria.

Section 92A - In persuance to Doha Declaration, the Patents Amendment Act, 2005
has inserted Section 92 A which provides Compulsory Licensing for manufacture
and export of patented pharmaceutical products into any country that does not have
sufficient manufacturing capability.

Plant Varieties and Farmers’ Rights Act 2001

Some important definitions Some of the important definitions in the context of the Act
include the following:
Variety A plant grouping except microorganisms within a single botanical taxon of
the lowest known rank, which can be
(i) defined by the expression of the characteristics resulting from a given genotype of
a plant of that plant grouping;
(ii) distinguished from any other plant grouping by expression of at least one of the
said characteristics; and
(iii) Considered as a unit with regard to its suitability for being propagated, which
remains unchanged after such propagation and includes propagating material of
such variety, extant variety, transgenic variety, farmers’ variety and essentially
derived variety.
Extant variety A variety available in India which is
(i) notified under section 5 of Seeds Act, 1966, or
(ii) farmers’ variety, or
(iii) a variety about which there is common knowledge, or
(iv) Any other variety which is in public domain.
Essentially derived variety
A variety shall be said to be essentially derived when it:
(i) is predominantly derived from such initial variety, or from a variety that itself is
predominantly derived from such initial variety, while retaining the expression of the
essential characteristics that result from the genotype or combination of genotypes of
such initial variety;
(ii) is clearly distinguishable from such initial variety, and
(iii) Conforms (excepting for the differences which result from the act of derivation) to
such initial variety in the expression of the essential characteristics that result from
the genotype or combination of genotypes of such initial variety.
Farmer Any person who
(i) cultivates crops by cultivating the land himself, or
(ii) cultivates crops by directly supervising the cultivation of land through any other
person, or
(iii) conserves and preserves, severally or jointly, with any person any wild species
or traditional varieties, or adds value to such wild species or traditional varieties
through selection and identification of their useful properties.
Farmers’ variety A variety which
(i) has been traditionally cultivated and evolved by the farmers in their fields, or
(ii) is a wild relative or land race of a variety about which the farmers possess
common knowledge.
Registrable varieties.—
(1) A new variety shall be registered under this Act if it conforms to the criteria of
novelty, distinctiveness, uniformity and stability.
(2) Notwithstanding anything contained in sub-section (1), an extant variety shall be
registered under this Act within a specified period if it conforms to such criteria of
distinctiveness, uniformity and stability as shall be specified under the regulations.
(3) For the purposes of sub-sections (1) and (2), as the case may be, a new variety
shall be deemed to be— (a) novel, if, at the date of filing of the application for
registration for protection, the propagating or harvested material of such variety has
not been sold or otherwise disposed of by or with the consent of its breeder or his
successor for the purposes of exploitation of such variety—
(i) in India, earlier than one year; or
(ii) outside India, in the case of trees or vines earlier than six years, or in any
other case, earlier than four years, before the date of filing such application:
Provided that a trial of a new variety which has not been sold or otherwise disposed
of shall not affect the right to protection: Provided further that the fact that on the
date of filing the application for registration, the propagating or harvested material of
such variety has become a matter of common knowledge other than through the
aforesaid manner shall not affect the criteria of novelty for such variety;
(b) Distinct, if it is clearly distinguishable by at least one essential characteristic from
any another variety whose existence is a matter of common knowledge in any
country at the time of filing of the application. Explanation.—For the removal of
doubts, it is hereby declared that the filing of an application for the granting of a
breeder’s right to a new variety or for entering such variety in the official register of
varieties in any convention country shall be deemed to render that variety a matter of
common knowledge from the date of the application in case the application leads to
the granting of the breeder's right or to the entry of such variety in such official
register, as the case may be;

(c) uniform, if subject to the variation that may be expected from the particular
features of its propagation it is sufficiently uniform in its essential characteristics;

(d) Stable, if its essential characteristics remain unchanged after repeated

propagation or, in the case a particular cycle of propagation, at the end of each such
cycle.

(4) A new variety shall not be registered under this Act if the denomination given to
such variety—
(i) is not capable of identifying such variety; or
(ii) consists solely of figures; or
(iii) is liable to mislead or to cause confusion concerning the characteristics, value
identity of such variety or the identity of breeder of such variety; or
(iv) is not different from every denomination which designates a variety of the same
botanical species or of a closely related species registered under this Act; or
(v) is likely to deceive the public or cause confusion in the public regarding the
identity of such variety; or
(vi) is likely to hurt the religious sentiments respectively of any class or section of the
citizens of India; or
(vii) is prohibited for use as a name or emblem for any of the purposes mentioned in
section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of
1950); or
(viii) is comprised of solely or partly of geographical name

Provided that the registrar may register a variety, the denomination of which
comprises solely or partly of a geographical name, if he considers that the use of
such denomination in respect of such variety is an honest use under the
circumstances of the case.

Farmers’ rights
Farmers who has bred or developed a new variety shall be entitled for registration
and any other protection as a breeder. Since the definition of an extant variety
according to section 2(j) includes a farmers’ variety also, which may be landrace or a
wild relative about which farmer possess common knowledge, the uniformity criteria
in case of registration of these varieties is difficult to ascertain. Such consideration
may have to be included in the DUS guidelines for testing of these particular types of
varieties. Further, there could be innumerable farmers’ varieties (landraces for
registration and their data are scattered and sometimes overlapping). A technical
questionnaire to bring out unique characters and area of adaptability could be
developed initially to document these varieties. The time-frame to be provided for
documentation of information relevant for registration of extant varieties (farmers’
varieties or released varieties) under Section 15(2) may be restricted to three years.
A farmer/farmer’s organization [Section 39(2)] can claim compensation if a variety
fails to give the expected performance under given conditions. Such a claim may
have to be paid by the breeder as directed by the Authority after giving due hearing
to both the parties, namely the farmer and the breeder. Since the variety is to be
tested for DUS by the Authority at the time of registration, and if the performance of
the variety is not found to be as claimed by the breeder, the Authority can deal with
claims of failure of performance and could decide about such claims independently,
instead of the courts. Section 42 regarding protection to farmers for innocent
infringement is also not clear as to how to define innocent infringement. Such a
clause may not stand in the court of law in view of the other laws where ignorance is
not a reason to have protection from legal obligations.