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INTRODUCTION
The idea of Copyright protection only began to emerge with the invention of printing, which made it for
literary works to be duplicated by mechanical processes instead of being copied by hand. This led to the
grant of privileges, by authorities and kings, entitling beneficiaries exclusive rights of reproduction and
distribution, for limited period, with remedies in the form of fines, seizure, confiscation of infringing copies and
possibly damages.

However, the criticism of the system of privileges led to the adoption of the Statute of Anne in 1709, the first
copyright Statute. In the 18th century there was dispute over the relationship between copyright subsisting in
common law and copyright under the Statute of Anne. This was finally settled by House of Lords in 1774
which ruled that at common law the author had the sole right of printing and publishing his book, but that
once a book was published the rights in it were exclusively regulated by the Statute. This common law right
in unpublished works lasted until the Copyright Act, 1911, which abolished the Statute of Anne.

Copyright is a well recognized form of property right which had its roots in the common law system and
subsequently came to be governed by the national laws in each country. Copyright as the name suggests
arose as an exclusive right of the author to copy the literature produced by him and stop others from doing
so. There are well-known instances of legal intervention to punish a person for copying literary or aesthetic
out put of another even before the concept of copyright took shape. The concept of idea was originally
concerned with the field of literature and arts. In view of technological advancements in recent times,
copyright protection has been expanded considerably. Today, copyright law has extended protection not only
to literary, dramatic, musical and artistic works but also sound recordings, films, broadcasts, cable
programmes and typographical arrangements of publications. Computer programs have also been brought
within the purview of copyright law.

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

In India, the law relating to copyright is governed by the Copyright Act, 1957 which has been amended in
1983, 1984, 1985, 1991, 1992, 1994, 1999 and 2012 to meet with the national and international
requirements. The amendment introduced in 1984 included computer program within the definition of literary
work and a new definition of computer program was inserted by the 1994 amendment. The philosophical
justification for including computer programs under literary work has been that computer programs are also
products of intellectual skill like any other literary work.

In 1999, the Copyright Act, 1957 was further amended to give effect to the provisions of the TRIPs
agreement providing for term of protection to performers rights at least until the end of a period of fifty years
computed from the end of the calendar year in which the performance took place. The Amendment Act also
inserted new Section 40A empowering the Central Government to extend the provisions of the Copyright Act
to broadcasts and performances made in other countries subject to the condition however that such
countries extend similar protection to broadcasts and performances made in India. Another new Section 42A
empowers the Central Government to restrict rights of foreign broadcasting organisations and performers.

The Act is now amended in 2012 with the object of making certain changes for clarity, to remove operational
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difficulties and also to address certain newer issues that have emerged in the context of digital technologies
and the Internet. Moreover, the main object to amendments the Act is that in the knowledge society in which
we live today, it is imperative to encourage creativity for promotion of culture of enterprise and innovation so
that creative people realise their potential and it is necessary to keep pace with the challenges for a fast
growing knowledge and modern society.

The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties – the WIPO
Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

Also, while introducing technological protection measures, the amended law ensures that fair use survives in
the digital era by providing special fair use provisions. The amendments have made many author-friendly
amendments, special provisions for disabled, amendments facilitating access to works and other
amendments to streamline copyright administration.

The amendments introduced through Copyright (Amendment) Act 2012 can be categorized into:
1. Amendments to rights in artistic works, cinematograph films and sound recordings.
2. WCT and WPPT related amendment to rights
3. Author-friendly amendments on mode of Assignment and Licenses
4. Amendments facilitating Access to Works
5. Strengthening enforcement and protecting against Internet piracy
6. Reform of Copyright Board and other minor amendments

INTERNATIONAL PROTECTION OF COPYRIGHT AND RELATED RIGHTS

In any case we have Bundle of national laws for protecting the universal copyright, yet the Harmonization of
national laws through international treaties is must significant in providing a strengthening ground of
universal protection to copyright.

International instruments do not usually constitute a directly applicable source of rights to private parties. An
international treaty rather imposes obligations on the states, parties to the convention, to adapt their
domestic legislation according to its provisions. In the field of copyright and related rights, the relevant
conventions establish a certain level of protection in the contracting states through the principle of national
treatment and the guaranteeing of a number of minimum standards.

According to the national treatment principle, works originating in a contracting state are protected in every
other contracting state in the same manner as these states protect works originating in their own territory.
For example, a textbook first published in contracting State A will be protected in contracting State B in the
same manner as State B protects a school text originating in its own territory. The guaranteed minimum
standards ensure that the protection provided by national laws of states parties and notably scope of rights,
possible exceptions and limitations, as well as terms of protection and does not fall below the level agreed in
the respective international instrument.

Often there are several possible ways for national legislations to comply with international prescriptions. In
order to find out how copyright and related rights are protected abroad, one has therefore always to consult
the laws of the respective country in which protection is sought.

The first international copyright treaties were bilateral: that is, only two countries were involved. These
agreements however failed to provide a reliable legal basis for the cross-border trade with protected works
as they were limited in scope and varied widely. Therefore, countries gradually turned to multilateral
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conventions committing all parties to a single set of obligations, which eventually became the principal
means for the international protection of copyright and related rights.

The origins of today is multilateral structure can be found in a universalist movement that evolved out of
France about the middle of the 19th century, even before any bilateral copyright agreement was concluded.
Authors and publishers called for a universal recognition of their copyright. A decisive step was the formation
of the Association LittÈraire et Artistique Internationale at the 1878 literary congress in Paris. Among its main
protagonists were such prominent figures as the French poet Victor Hugo. In 1882, the ALAI held a congress
in Rome to discuss copyright protection at the international level.

Following the proposal of the German Publishersí Association (Boersenverein der deutschen Buch Indler),
between 1883 and 1886 four meetings took place in Berne to elaborate a text of an international treaty. The
Convention for the Protection of Literary and Artistic Works was adopted on September 9, 1886 and signed
by ten countries including Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia and
the UK. Today, the Berne Convention remains still of great importance as many of the recent treaties refer
directly or indirectly to its provisions.

Significance of International Treaties on Copyright and Related Rights

• Obligations on contracting states to adapt domestic laws
• Principle of national treatment
• Guaranteeing of minimum standards

Today, system of widely accepted multilateral conventions and The Most Important International
Conventions related to the protection of Copyright and Related Rights are
• The Berne Convention for the Protection of Literary and Artistic Works of 1886 (last revised in 1971)
• The Universal Copyright Convention of 1952 (last revised in 1971)
• The Rome Convention for the Protection of Performers, Producers of Phonograms, and broadcasting
Organizations of 1961
• The TRIPs Agreement of 1994
• The WIPO Copyright Treaty of 1996
• The WIPO Performances and Phonograms Treaty of 1996

MEANING OF COPYRIGHT AND THE RIGHTS CONFERRED

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers
of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of
reproduction, communication to the public, adaptation and translation of the work. It means the sole right to
produce or reproduce the work or any substantial part thereof in any material form whatsoever (Kartar Singh
Giani v. Ladha Singh & Others AIR 1934 Lah 777).

Section 14 of the Act defines the term Copyright as to mean the exclusive right to do or authorise the doing
of the following acts in respect of a work or any substantial part thereof, namely

In the case of literary, dramatic or musical work (except computer programme):

(i) reproducing the work in any material form which includes storing of it in any medium by electronic
means;
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(ii) issuing copies of the work to the public which are not already in circulation;
(iii) performing the work in public or communicating it to the public;
(iv) making any cinematograph film or sound recording in respect of the work;

making any translation or adaptation of the work.

Further any of the above mentioned acts in relation to work can be done in the case of translation or
adaptation of the work.

In the case of a computer programme:

(i) to do any of the acts specified in respect of a literary, dramatic or musical work; and
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the
computer programme. However, such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object of the rental.

In the case of an artistic work:

(i) reproducing 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) communicating the work to the public;
(iii) issuing copies of work to the public which are not already in existence;
(iv) including work in any cinematograph film;

making adaptation of the work, and to do any of the above acts in relation to an adaptation of the work.

In the case of cinematograph film and sound recording:

(i) making a copy of the film including a photograph of any image or making any other sound recording
embodying it;
(ii) selling or giving on hire or offer for sale or hire any copy of the film/sound recording even if such
copy has been sold or given on hire on earlier occasions; and
(iii) communicating the film/sound recording to the public.

In the case of a sound recording:

• To make any other sound recording embodying it

• To sell or give on hire, or offer for sale or hire, any copy of the sound recording

• To communicate the sound recording to the public.

The main objective of the Act is to give protection to the owner of the copyright from the dishonest
manufacturers, who try to confuse public and make them believe that the infringed products are the products
of the owner. Further, it wants to discourage the dishonest manufacturers from enchasing the goodwill of the
owner of the copyright, who has established itself in the market with its own efforts [Hawkins Cookers Ltd. v.
Magicook Appliances Co., 00(2002) DLT698].

Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in
an idea. In M/s Mishra Bandhu Karyalaya & Others v. Shivaratanlal Koshal AIR 1970 MP 261, it has been
held that the laws of copyright do not protect ideas, but they deal with the particular expression of ideas. It is
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always possible to arrive at the same result from independent sources. The rule appears to be settled that
the compiler of a work in which absolute originality is of necessary excluded is entitled, without exposing
himself to a charge of piracy, to make use of preceding works upon the subject, where he bestows such
mental labour upon what he has taken, and subjects it to such revision and correction as to produce an
original result.

Whether one book is a copy of the other or not, it was held in S K Dutt. V. Law Book Co. & Others AIR 1954
All 57, in deciding the question whether one book is a copy of the other or not the Court has, in one view, to
keep in mind the two features of the two books, namely, the external and the internal features. By external
features means the get-up and the ‘overall’ scope of the publication. By internal features means the general
lay out of the subject-matter, the manner of the treatment of the subject matter and the amount of material
contained in the book.

Nature of Copyright Protection

Automatic

Copyright is an unregistered right which subsists automatically as soon as the work that is eligible for
protection is created and recorded on some medium.

Originality

The work protected need not be new. However, it must be original in the sense that it is not copied from
some other source but is the result of an application of effort by the creator of the work.

Exclusions

Copyright protects the expression of ideas but not the idea or concept underlying a piece of work. For that
reason, procedures, methods of operation and mathematical concepts are excluded from copyright
protection

Works in which Copyright Subsists

Section 13 of the Copyright Act provides that copyright shall subsist throughout India in certain classes of
works which are enumerated in the section. Copyright subsists throughout India in the following classes of
works:
• Original literary, dramatic, musical and artistic works;
• Cinematograph films; and
• Sound recordings.

In Macmillan and Company Limited v. K. and J. Cooper, AIR 1924 PC 75, it was held that the word ‘original’
does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not
concerned with the origin of ideas, but with the expression of thought; and in the case of ‘literary work, with
the expression of thought in print or writing. The originality which is required relates to the expression of the
thought; but the Act does not require that the expression must be in an original or novel form, but that the
work must not be copied from another work—that it should originate from the author. What is the precise
amount of the knowledge, labour, judgement or literary skill or taste which the author of any book or other
compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the
Copyright Act cannot be defined in precise terms. In every case it must depend largely on the special facts of
that case, and must in each case be very much a question of degree.
 Lesson 12 Copyrights 279

In Camlin Private Limited v. National Pencil Industries, (2002) Del, Delhi High Court held that copyright
subsists only in an original literary work. But it is not necessary that the work should be the expression of the
original or inventive thought, for Copyright Act are not concerned with the originality of ideas, but with the
expression of thought, and in the case of a literary work, with the expression of thought in print or writing.
Originality for the purpose of copyright law relates to the expression of thought, but such expression need not
be original or novel. The essential requirement is that the work must not be copied from another work but
must originate from the author.

An artistic work means-

• a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
photograph, whether or not any such work possesses artistic quality;
• a work of architecture; and
• any other work of artistic craftsmanship.
Word “artistic” is merely used as a generic term to include the different processes of creating works set out in
the definition section and that provides that a work produced by one such processes, and that its creation
involved some skill or labour on the part of the artist, it is protected [Associated Publishers (Madras) Ltd. v.
K. Bashyam alias ‘Arya’ & Another AIR 1961 Mad. 114 (1962) 1 Mad LJ 258].
What is required for copyright protection in an artistic work is ‘originality’. It is not originality of idea or the
theme behind the work but the expression of the work which requires to be original. The originality required
as per the Act is a minimum amount of originality. What is prevented under the Copyright Act is making of
copies without permission of the author. A copy is one which is either a reproduction of the original or a work
which closely resembles the original [Challenger Knitting Mills v. Kothari Hosery Factory 2002 PTC (24) 756
Del. (Reg.)].
"Musical work" means a work consisting of music and includes any graphical notation of such work but does
not include any words or any action intended to be sung, spoken or performed with the music. A musical
work need not be written down to enjoy copyright protection.
"Sound recording" means a recording of sounds from which sounds may be produced regardless of the
medium on which such recording is made or the method by which the sounds are produced. A phonogram
and a CD-ROM are sound recordings.
"Cinematograph film" means any work of visual recording on any medium produced through a process from
which a moving image may be produced by any means and includes a sound recording accompanying such
visual recording and "cinematograph" shall be construed as including any work produced by any process
analogous to cinematography including video films.
The expression “cinematograph film” in Section 2(f) of the Copyright Act, 1957 includes video film also which
has been recorded in VCR. Entertaining Enterprises & Others v. State of Tamil Nadu & Another AIR 1984
Mad. 278.
The Bombay High Court in Fortune Films International v. Dev Anand & Another AIR 1979 Bom.17, has held
that in view of the definitions of “artistic work”, “dramatic work” and cinematograph film”, it would appear that
the Copyright Act, 1957 does not recognize the performance of an actor as ‘work’ which is protected by the
Copyright Act.

COPYRIGHT PERTAINING TO SOFTWARE

The definition of ”Literary wok” under section 2 (o) of the Copy right Act, 1957 includes computer
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programmes, tables and compilations including computer "literary data bases. Computer programme as
stated above was included within the definition of "literary work" in 1984 and the new definition of "computer
programme" under Section 2 (ffc) introduced in 1994 means a set of instructions expressed in words, codes
or in any other form, including a machine-readable medium, capable of causing a computer to perform a
particular task or achieve a particular result.

Computer programmes (also known as "software") originated with the invention of the computer itself.
However, it was only with the advent of Personal Computers (PCs) in the 1980s that software became widely
available and the need for protecting software under Copyright law became an issue. In the initial stages,
computer programmes were developed by the manufacturers of computers themselves. With the emergence
of wide use of PCs, production of software became delinked from manufacturers of computers. Development
and manufacturing of software has now become an independent activity and the number of companies
engaged in this activity has also increased. It is however the output and variety which has grown manifold
which has given rise to problems of enforcement of Copyright in them. While vigorous competition among
producers of software has, on the one hand brought about improvement in the quality of computer
programmes and brought down the prices, the increased opportunities have also given rise to what is
commonly known as "software piracy'' - the activity of duplicating and distributing software without authority
from the holder of the copyright.

The philosophical justification for including computer programmes within the definition of ' 'literary work'' has
been that computer programmes are also products of intellectual skill like any other literary work. Developing
a computer programme is an activity which is comparable to the writing of a novel or other literary work
excepting that the "language" used as well as its uses are of a very different kind. Though a software can be
written by individual programmer, most of the major software’s are the outcome of group efforts, where
medium to large sized teams spend months or even years to write a programme.

Like the unauthorised copying of literary works, unauthorised copying of computer programmes also attracts
the same legal consequences under the Copyright law. However, since the facility of copying a computer
software and its duplication is within the easy reach of a potential pirate and since copies of software are
indistinguishable from the original, publishers/owners of software are also confronted with daunting problems
for safeguarding their interests under the Copyright law when large scale software piracy takes place.
Software piracy has assumed enormous proportions in certain countries and has become a friction point in
international trade negotiations. Within domestic jurisdictions also software piracy has thrown up serious
challenges to enforcement authorities. The Copyright (Amendment) Act, 1994 has tried to address these
questions and has incorporated internationally recognized standards and procedures for enforcement of
copyright in the field of computer programmes. The relevant provisions have been discussed under remedies
against infringement of copyright

AUTHORSHIP AND OWNERSHIP

Copyright protects the rights of authors, i.e., creators of intellectual property in the form of literary, musical,
dramatic and artistic works and cinematograph films and sound recordings. Generally the author is the first
owner of copyright in a work.

“Author” as per Section 2(d) of the Act means

• In the case of a literary or dramatic work the author, i.e., the person who creates the work.
• In the case of a musical work, the composer.
• In the case of a cinematograph film, the producer.
 Lesson 12 Copyrights 281

• In the case of a sound recording, the producer.

• In the case of a photograph, the photographer.
• In the case of any literary, dramatic, musical or artistic work which is computer-generated, the person
who causes the work to be created.

In a musical sound recording there are many right holders. For example, the lyricist who wrote the lyrics, the
composer who set the music, the singer who sang the song, the musician (s) who performed the background
music, and the person or company who produced the sound recording.

A sound recording generally comprises various rights. It is necessary to obtain the licences from each and
every right owner in the sound recording. This would, inter alia, include the producer of the sound recording,
the lyricist who wrote the lyrics, and the musician who composed the music.

In the case of a government work, government shall, in the absence of any agreement to the contrary, be the
first owner of the copyright therein.

In the case of a work made or first published by or under the direction or control of any public undertaking,
such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the
copyright therein.

In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the
proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for
the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the
absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the
copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the
reproduction of the work for the purpose of its being so published, but in all other respects the author shall be
the first owner of the copyright in the work.

In the case of a work made in the course of the author’s employment under a contract of service or
apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the
copyright therein.

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film
made, for valuable consideration at the instance of any person, such person shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein.

Term of Copyright
Sections 22 to 29 deal with term of copyright in respect of published literary, dramatic, musical and artistic
works; anonymous and pseudonymous; posthumous, photographs, cinematograph films, sound recording,
Government works, works of PSUs and works of international organizations.

Literary, dramatic, musical or artistic works enjoy copyright protection for the life time of the author plus 60
years beyond i.e. 60 years after his death. In the case of joint authorship which implies collaboration of two
or more authors in the production of the work, the term of copyright is to be construed as a reference to the
author who dies last.

In the case of copyright in posthumous, anonymous and pseudonymous works, photographs, cinematograph
films, sound recordings, works of Government, public undertaking and international organizations, the term
of protection is 60 years from the beginning of the calendar year next following the year in which the work
has been first published.
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The Copyright (Amendment) Act, 1994 has given special right to every broadcasting organisation known as
broadcast reproduction right in respect of its broadcasts. This right is to be enjoyed by every broadcasting
organisation for a period of twenty-five years from the beginning of the calendar year next following the year
in which the broadcast is made. In terms of Copyright (Amendment) Act, 1999 if any performer appears or
engages in any performance, he has a special right in relation to such performance called performers right to
be enjoyed for a period of fifty years.

COPYRIGHT OFFICE
Section 9 of the Copyright Act requires for establishment of an office to be called the Copyright Office for the
purpose of the Act. The Copyright Office is to be under the immediate control of a Registrar of Copyrights to
be appointed by the Central Government, who would act under the superintendence and directions of the
Central Government.

Copyright Office: Recent Shifting from Ministry of HRD to Ministry of Commerce and
Industry
With the entire bogey relating to copyright having shifted to it, the budget for intellectual property in the
allocation for the Department of Industrial Policy and Planning has jumped up to Rs 1,700 million from Rs
1,112 million in 2016-17.1

After the announcement made in early April last year that copyright issues would be dealt with by DIPP,
revised estimates for 2016-17 had shown a jump to 1550 million, necessitating a higher budget for this
sector.

Consequently, the allocation for Human Resource Development which had until now been primarily
responsible for this sector shows a blank and the budgetary document says this is because the sector has
moved to DIPP.

Copyright had until March 2016 been the preserve of the Human Resource Development Ministry.

Those involved in the music, film, and television industries have always grudged this as they feel copyright
for their sectors should be with the Information and Broadcasting Ministry since the regulatory body for them
is the I and B Ministry.

Out of the total allocation, the highest share has been allocated for modernization and strengthening of
Intellectual Property office - `757.8 million, followed by `520.1 million for the Controller General of Patent
Designs and Trademarks.

Several offices have been allocated budgets for the first time: Semi-conductor Integrated Circuit Layout
Design Registry (`10 million), Semi-Conductor Integrated Circuit Layout Design Board (`One million), Cell for
Promotion of Intellectual Property and Management (CIPAM) with `109.9 million, Copyright Office (`36.5
million), Copyright Board (`33.5 million, and Promotion of copyrights and IPR (`60 million).

Of these, the last three had been given some allocation in the revised budget. Interestingly, there is no
explanatory for these six departments in the budget document.

In addition to the IP budget, there is an allocation of `6.5 million for the World Intellectual Property
Organization (WIPO) as part of support to autonomous organizations.

It had been announced early in the financial year 2016-17 that issues of copyright had been shifted to the

1 Nagpal BB, DIPP allocation for IPR increased after copyright shift from HRD, RM Biz.
 Lesson 12 Copyrights 283

DIPP of the Commerce and Industry Ministry, which became the nodal department to deal with all issues
related to copyright in the country.

Now with the copyright department been shifted from Ministry of HRD to Ministry of Commerce and Industry
under DIPP, the new address of the Copyright Office, Government of India is as below:
Registrar of Copyrights
Copyright Office
Department Of Industrial Policy & Promotion
Ministry of Commerce and Industry
Boudhik Sampada Bhawan,
Plot No. 32, Sector 14, Dwarka,
New Delhi-110075

Copyright Board
Section 11 of the Act provides for the establishment of the Copyright Board and empowers the Central
Government to constitute the same consisting of a Chairman and not less than two, but not more than
fourteen members. Chairman of the Board should be a sitting or retired judge of the High Court or a person
qualified to be appointed as judge of the High Court. The Registrar of Copyright to act as Secretary of the
Copyright Board.

Functions of the Copyright Board

The main functions of the Copyright Board are as under:
1. Settlement of disputes as to whether copies of any literary, dramatic or artistic work or records are
issued to the public in sufficient numbers.
2. Settlement of disputes as to whether the term of copyright for any work is shorter in any other
country than that provided for that work under the Act.
3. Settlement of disputes with respect to assignment of copyright as dealt with in Section 19A.
4. Granting of compulsory licences in respect of Indian works withheld from public.
5. Granting of compulsory licence to publish unpublished Indian works.
6. Granting of compulsory licence to produce and publish translation of literary and dramatic works.
7. Granting of compulsory licence to reproduce and publish literary, scientific or artistic works for
certain purposes.
8. Determination of royalties payable to the owner of copyright.
9. Determination of objection lodged by any person as to the fees charged by Performing Rights
Societies.
10. Rectification of Register on the application of the Registrar of Copyright or of any person aggrieved.

The Copyright Board has no powers to limit the user of copyright to any particular territorial area. The appeal
against orders passed by the Copyright Board except under Section 6 lies to the High Court within whose
jurisdiction the appellant resides or carries on business.

The scope of the powers of the Copyright Board has been explained in the case of Shri Urmila Charan Gupta
v. Shri Charushila Sharan Gupta and Sumitra Nandand Gupta 1983 PTC 84. In this case it has been held
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that if the Board, in its powers, thinks fit or agrees to dispose of the matter of all the 38 books on a single
application, no one else is given the right to question its propriety.

Assignment of Copyright
The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may
assign to any person the copyright Section 18 of the Copyright Act provides for the assignment of copyright
in an existing work as well as future work. In both the cases an assignment may be made of the copyright
either wholly or partially and generally or subject to limitations and that too for the whole period of copyright
or part thereof. However, in case of assignment of copyright in any future work, the assignment has the real
effect only when the work comes into existence. Section 18(3) explains that a assignee in respect of
assignment of the copyright in future work include the legal representative of the assignee, if the assignee
dies before the work comes into existence.

Sections 17 and 18 of the Copyright Act, 1957 show where the copyright vests. If a work is done by an
author for a consideration for a publisher, the copyright in it would normally vest in the publisher subject to
any contract to the contrary, as is provided by Section 17 of the said Act. It can be legitimately said that this
Section has been inserted in the Act of 1957, but the rule of law has been same even prior to this statutory
provision. Secondly as provided by Section 18, the copyright could be assigned, and if it is so done it would
be vested in the purchaser. (Khemraj Shrikrishnadass v. M/s Garg & Co. and Another AIR 1975 Del 130.)

Mode of Assignment
Section 19 of the Act provides that an assignment of copyright should be in writing signed by the owner of
the copyright. Mere acceptance of remuneration or delivery of manuscript does not constitute an assignment
of copyright. Oral assignment is invalid and it is impermissible in law. Setty v. Dr. Suryakantha U. Kamath
K.A. Venugopala Setty v. Dr. Suryakantha U. Kamath AIR 1992 Kar 1.

Section 19 requires that the assignment should be in writing signed by the assignor or by his duly authorized
agent—if the assignment appears from any document and it is signed by the assignor or by his authorized
agent the statutory requirement is fulfilled. Srimagal and Co. v. Books (India) Pvt. Ltd. & Others AIR 1973
Mad 49: (1972) 2 Mad LJ 610.

Copyright is different from the material object which is the subject of the copyright. So it should be clear that
the transfer of the material object does not necessarily involve a transfer of the copyright. The assignment of
copyright should specify the assigned work, rights including duration, territorial extent of assignment and the
amount of royalty. However, in the absence of duration and territorial extent, the assignment remains valid
for a period of five years and within the territory of India.

In case assignee does not exercise his rights within a period of one year from the date of assignment, the
assignment in respect of such rights shall be deemed to have lapsed after the expiry of said period, unless
otherwise specified in the assignment.

The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned
to a copyright society in which the author of the work is a member is void.

The Assignment of copyright in any work to make a cinematograph film does not affect the right of the author
of the work to claim an equal share of royalties and consideration payable in case of utilization of the work in
any form other than for the communication to the public of the work, along with the cinematograph film in a
cinema hall.

The assignment of the copyright in any work to make a sound recording which does not form part of any
 Lesson 12 Copyrights 285

cinematograph film does not affect the right of the author of the work to claim an equal share of royalties and
consideration payable for any utilization of such work in any form.
Licences
Chapter VI containing Sections 30-32B deal with licences. Section 30 deals with licences by owners of
copyright; Section 30A contains provisions regarding application of Sections 19 and 19A; Section 31
provides for compulsory licence in works withheld from public; Section 31A deals with compulsory licences in
unpublished Indian works; Section 31B deals with Compulsory Licence for the benefit of disabled; Section
31C deals with statutory licence for cover versions; Section 31D deals with statutory licence for broadcasting
of literary and musical works and sound recording; Section 32 deals with licences to produce and publish
translations; Section 32A provides for licence to reproduce and publish works for certain purposes; and
Section 32B deals with termination of licences.
Licences by Owners of Copyright
Section 30 of the Act empowers the owner of the copyright in any existing work or the prospective owner of
the copyright in any future work to grant any interest in the right by licence in writing by him or by his duly
authorised agent. However, in the case of a licence relating to copyright in any future work, the licence shall
take effect only when the work comes into existence. Explanation to this section clarifies that where a person
to whom a licence relating to copyright in any future work is granted, dies before the work comes into
existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be
entitled to the benefit of the licence.
Compulsory Licence in Works Withheld from Public
Section 31 provides that if at any time during the term of copyright in any Indian work which has been
published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in
the work has refused to re-publish or allow the re-publication of the 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 or has
refused to allow communication to the public by broadcast of such work or in the case of a sound recording;
the work recorded in such sound recording, on terms which the complainant considers reasonable, the
Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being
heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for
such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to
republish the work, perform the work in public or communicate the work to the public by broadcast, subject to
payment to the owner of the copyright of such compensation and subject to such other terms and conditions
as the Copyright Board may determine.

Compulsory Licence in Unpublished or Published Works

Section 31A of the Act provides that in the case of any unpublished work or any work published or
communicated to the public and the work is withheld from the public in India, the author is dead or unknown
or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to
the Copyright Board for a licence to publish or communicate to the public such work or a translation thereof
in any language.
Before making an application to the Copyright Board , the applicant required to publish his proposal in one
issue of a daily newspaper in the English language having circulation in the major part of the country and
where the application is for the publication of a translation in any language, also in one issue of any daily
newspaper in that language.
The Copyright Board after holding such inquiry as may be prescribed, direct the Registrar of Copyrights to
286 PP-IPRL&P

grant to the applicant a licence to publish the work or a translation thereof in the language mentioned in the
application subject to the payment of such royalty and subject to such other terms and conditions as the
Copyright Board may determine, and thereupon the Registrar of Copyrights shall grant the licence to the
applicant in accordance with the direction of the Copyright Board.
Compulsory Licence for Benefit of Disabled
Section 31B (1) provides that any person working for the benefit of persons with disability on a profit basis or
for business may apply to the Copyright Board in prescribed manner for a compulsory licence to publish any
work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) of sub-section
(1) of Section 52 does not apply and the Copyright Board shall dispose of such application as expeditiously
as possible and endeavour shall be made to dispose of such application within a period of two months from
the date of receipt of the application.
The Copyright Board may on receipt of an application inquire, or direct such inquiry as it considers necessary
to establish the credentials of the applicant and satisfy itself that the application has been made in good faith
and a compulsory licence needs to be issued to make the work available to the disabled, it may direct the
Registrar of Copyrights to grant to the applicant such a licence to publish the work.
It may be noted that clause (zb) of sub-section (1) of Section 52 provides that the adaptation, reproduction,
issue of copies or communication to the public of any work in any accessible format, by—
(i) any person to facilitate persons with disability to access to works including sharing with any person
with disability of such accessible format for private or personal use, educational purpose or
research; or
(ii) any organisation working for the benefit of the persons with disabilities in case the normal format
prevents the enjoyment of such works by such persons.
However, the copies of the works in such accessible format are made available to the persons with
disabilities on a non-profit basis but to recover only the cost of production and the organization ensure that
the copies of works in such accessible format are used only by persons with disabilities and takes
reasonable steps to prevent its entry into ordinary channels of business.
It may be noted that “any organization” includes and organization registered under Section 12A of the
Income-tax Act, 1961 and working for the benefit of persons with disability or recognized under Chapter X of
the Persons with Disabilities (Equal Opportunities, Protection or Rights and full Participation) Act, 1995 or
receiving grants from the government for facilitating access to persons with disabilities or an educational
institution or library or archives recognized by the Government.”
Statutory Licence for Cover Versions
Section 31C (1) provides that any person desirous of making a cover version, being a sound recording in
respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or
with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this
section. However, such sound recordings shall be in the same medium as the last recording, unless the
medium of the last recording is no longer in current commercial use.
The person making the sound recordings required to give prior notice of his intention to make the sound
recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with
which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties
in respect of all copies to be made by him, at the rate fixed by the Copyright Board.

It may be noted that such sound recordings shall not be sold or issued in any form of packaging or with any
 Lesson 12 Copyrights 287

cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not
contain the name or depict in any way any performer of an earlier sound recording of the same work or any
cinematograph film in which such sound recording was incorporated and, further, shall state on the cover
that it is a cover version made under this section.

The person making such sound recordings shall not make any alteration in the literary or musical work which
has not been made previously by or with the consent of the owner of rights, or which is not technically
necessary for the purpose of making the sound recordings. However, such sound recordings shall not be
made until the expiration of five calendar years after the end of the year in which the first sound recordings of
the work was made.

It may be noted that cover version means a sound recording made in accordance with this Section 31C of
the Act.

Statutory Licence for Broadcasting of Literary and Musical Works and Sound Recording
Section 31D provides that any broadcasting organisation desirous of communicating to the public by way of
a broadcast or by way of performance of a literary or musical work and sound recording which has already
been published may do so subject to the fulfillment of prescribed conditions.

The broadcasting organisation required to give prior notice in prescribed manner of its intention to broadcast
the work stating the duration and territorial coverage of the broadcast, and pay to the owner of rights in each
work royalties in the manner and at the rate fixed by the Copyright Board.

The rates of royalty for radio broadcasting shall be different from television broadcasting and the copyright
Board shall fix separate rates for radio broadcasting and television broadcasting and the broadcasting
organisation to pay an advance to the owners of rights.

The broadcasting organisation required to maintain such records and books of account, and render to the
owners of rights such reports and accounts; and allow the owner of rights or his duly authorized agent or
representative to inspect all records and books of account relating to such broadcast in prescribed manner.

Licence to Produce and Publish Translations

Section 32 entitles any person to apply to the Copyright Board for a licence to produce and publish a
translation of a literary or dramatic work in any language after a period of seven years from the first
publication of the work. However, in respect of teaching, scholarship or research Section 32(1A) allows any
person to apply to the Copyright Board for a licence to produce and publish a translation, in printed or
analogous forms of reproduction, of a literary or dramatic work, other than an Indian work, in any language in
general use in India after a period of three years from the first publication of such work. Further, where such
translation is in a language not in general use in any developed country, such application may be made after
a period of one year from such publication.

Termination of Licence
Section 32B of the Act deals with termination of licences and provides that if at any time after the granting of a
licence, the owner of the copyright in the work or any person authorised by him publishes a translation of such
work in the same language and which is substantially the same in content at a price reasonably related to the
price normally charged in India for the translation of works of the same standard on the same or similar subject,
the licence so granted shall be terminated. However, such termination shall take effect only after the expiry of a
period of three months from the date of service of a notice in the prescribed manner on the person holding such
licence by the owner of the right of translation intimating the publication of the translation.
288 PP-IPRL&P

Copyright Societies
The Copyright (Amendment) Act, 1994 added a new Chapter VII on Copyright Societies. Section 33(1)
prohibits any person or association of persons to commence or carry on the business of issuing or granting
licences in respect of any work in which copyright subsists or any other rights conferred by the Act. The
aforesaid restriction is not applicable to Copyright Societies registered under Section 33(3) of the Copyright
Act.

A copyright society is a registered collective administration society under Section 33 of the Copyright Act,
1957. Such a society is formed by authors and other owners. The minimum membership required for
registration of a society is seven. Ordinarily, only one society is registered to do business in respect of the
same class of work. A copyright society can issue or grant licences in respect of any work in which copyright
subsists or in respect of any other right given by the Copyright Act.

Under clause (3) of Section 33 Central Government has been authorized to register association of persons
as copyright society after taking into account the following factors:
(i) the interests of the authors and other owners of rights under the Copyright Act;
(ii) the interest and convenience of the public and in particular of the groups of persons who are most
likely to seek licences in respect of the relevant rights; and
(iii) the ability and professional competence of the applicants.

However, an owner of copyright in his individual capacity continues to have the right to grant licences in
respect of his own works consistent with his obligations as a member of the registered Copyright society.
The Central Government cannot register more than one copyright society to do business in respect of the
same class of works.

The business of issuing or granting license in respect of literary, dramatic, musical and artistic works
incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright
society duly registered under this Act. This is a kind of compulsory collective licensing for managing of
performing rights. The registration granted to a copyright society shall be for a period of five years and may
be renewed from time to time before the end of every five years on a request in the prescribed form and the
Central Government may renew the registration after considering the report of Registrar of Copyrights on the
working of the copyright society under section 36.

The renewal of the registration of a copyright society shall be subject to the continued collective control of the
copyright society being shared with the authors of works in their capacity as owners of copyright or of the
right to receive royalty. Every copyright society already registered before the Copyright (Amendment) Act,
2012 came into existence shall get itself registered under this Chapter within a period of one year from the
date of commencement of the Copyright (Amendment) Act, 2012.

The Central Government has been empowered to cancel the registration of a Copyright Society if its
management is detrimental to the interests of the owners of rights concerned. The registration can also be
suspended by the Government for a period of one year if it is necessary in the interest of the owners of the
rights concerned and the government has to appoint an administrator to discharge the functions of the
Copyright Society.
Registered Copyright Societies in India

The following are the registered copyright societies in India:

(i) For Literary works associated with Musical Works: The Indian Performing Right Society Limited
 Lesson 12 Copyrights 289

(IPRS), 208, Golden Chambers, 2nd Floor, New Andheri Link Road, Andheri (W), Mumbai‐ 400
058 ( Website: http://www.iprs.org/ );
(ii) For Reprographic (photo copying) works: Indian Reprographic Rights Organization (IRRO),
18/1‐C, Institutional Area, Near JNU Campus, New Delhi – 110067, (Website: http://www.irro.in/ )
(iii) For Performers (Singers) Rights: Indian Singers Rights Association (ISRA) ‐ Registered on 14th
June, 2013 – Registered Office ‐ 2208, Lantana, Nahar Amrit Shakti.

Administration of Rights of Owner by Copyright Society

Section 34 of the Act empowers a Copyright Society to accept exclusive authorisation from an owner of
Copyright to administer any right in any work by issuing licences or collection of licence fee or both. Such
authorisation can however be withdrawn by an owner without prejudice to the rights of the Copyright Society.

A Copyright Society is competent to enter into agreement with any foreign society or organisation,
administering rights corresponding to rights under the Indian Copyright Act, to entrust such foreign society or
organisations the administration in any foreign country of rights administered by the said Copyright Society in
India or for administering in India the rights administered in a foreign country by such foreign society or
organisation.

Section 34(3) empowers the Copyright Society to:

(i) issue licences under Section 30 in respect of any rights under the Act;
(ii) collect fees in pursuance of such licences;
(iii) distribute such fees among owners of rights after making deductions for its own expenses; and
(iv) perform any other function consistent with the provisions of Section 35.

Section 35 deals with control over the society by the owner of rights and provides that every Copyright
Society is subject to the collective control of the copyright owners whose rights it administers. It does not
include owners of right administered by a foreign society or organisation.

Rights of Broadcasting Organisation and Performers

Chapter VIII of the Act containing Section 37-39A deals with rights of broadcasting organisations and of
performers.

Broadcast Reproduction Right

Section 37 entitles every broadcasting organisation to have a special right to be known as "broadcast
reproduction right" in respect of its broadcasts for twenty-five years from the beginning of the calendar year
next following the year in which the broadcast is made.

As per sub Section (3) of Section 37 during the continuance of a broadcast reproduction right in relation to
any broadcast, any person who, without the licence of the owner of the right does any of the following acts of
the broadcast or any substantial part thereof,-
(a) re-broadcasts the broadcast; or
(b) causes the broadcast to be heard or seen by the public on payment of any charges; or
(c) makes any sound recording or visual recording of the broadcast; or
(d) makes any reproduction of such sound recording or visual recording where such initial recording
290 PP-IPRL&P

was done without licence or, where it was licensed, for any purpose not envisaged by such licence;
or
(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or
visual recording referred to in clause (c) or clause (d) and subject to the provisions of Section 39
deemed to have infringed broadcast reproduction right.

Performer’s Right
Section 38 provides that 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. The performer's right
subsist until fifty years from the beginning of the calendar year next following the year in which the
performance is made.

Exclusive Right of Performer

As per Section 38A without prejudice to the rights conferred on authors, the performer’s right which is an
exclusive right subject to the provisions of the Act to do or authorize for doing any of the following acts in
respect of the performance or any substantial part thereof, namely:—
(a) to make a sound recording or a visual recording of the performance, including—
(i) reproduction of it in any material form including the storing of it in any medium by electronic or
any other means;
(ii) issuance of copies of it to the public not being copies already in circulation;
(iii) communication of it to the public;
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the
recording;
(b) to broadcast or communicate the performance to the public except where the performance is
already broadcast.

It may be noted that once a performer has, by written agreement, consented to the incorporation of his
performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the
enjoyment by the producer of the film of the performer’s right in the same film. However, the performer shall
be entitled for royalties in case of making of the performances for commercial use.

Moral Right of Performer

Section 38B of Act provides that the performer of a performance shall, independently of his right after
assignment, either wholly or partially of his right, have the right to claim to be identified as the performer of
his performance except where omission is dictated by the manner of the use of the performance; and to
restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that
would be prejudicial to his reputation.

It may be noted that mere removal of any portion of a performance for the purpose of editing, or to fit the
recording within a limited duration, or any other modification required for purely technical reasons shall not
be deemed to be prejudicial to the performer’s reputation.

Acts not Constituting Infringement of Broadcast Reproduction Right and Performers Right
Section 39 stipulates situations in which no broadcast reproduction right or performer’s right shall be deemed
 Lesson 12 Copyrights 291

to be infringed. These include:

(a) the making of any sound recording or visual recording for the private use of the person making such
recording, or solely for purposes of bona fide teaching or research; or
(b) the use, consistent with fair dealing of excerpts of a performance or of a broadcast in the reporting
of current events or for bona fide review, teaching or research; or
(c) such other acts, with any necessary adaptations and modifications, which do not constitute
infringement of copyright under Section 52.

International Copyright
Copyright Protection to Foreign Works

The Copyright Act applies only to works first published in India, irrespective of the nationality of the author.
However Section 40 of the Act empowers the Government of India to extend the benefits of all or any of the
provisions of the Act to works first published in any foreign country. The benefits granted to foreign works will
not extend beyond what is available to the works in the home country and that too on a reciprocal basis i.e.
the foreign country must grant similar protection to works entitled to copyright under the Act. The term of
Copyright in India to the foreign work, will not exceed that conferred by the foreign country.

Government of India has passed the International Copyright Order, 1958. According to this order any work
first published in any country which is a member of the Berne Convention or the Universal Copyright
Convention will be accorded the same treatment as if it was first published in India.

Conditions of Copyright Protection

The following are the requisites for conferring copyright protection to works of international organisations:
(a) The work must be made or first published by or under the direction or control of the International
Organisation.
(b) There should be no copyright in the work in India at the time of making or on the first publication of
the work.
(c) If the work is published in pursuance of an agreement with the author, such agreement should not
reserve the author any copyright in the work or any copyright in the work should belong to the
organisation.

Power of Central Government to Apply Chapter VIII to Broadcasting Organisations and

Performers in Certain Other Countries
Section 40A inserted by the Copyright (Amendment) Act, 1999 provides that subject to the satisfaction of
Central Government that a foreign country (other than a country with which India has entered into a treaty or
which is a party to a Convention relating to rights of broadcasting organisations and performers to which
India is a party) has made or has undertaken to make such provisions, if any, as it appears to the Central
Government expedient to require, for the protection in that foreign country, of the rights of broadcasting
organizations and performers as is available under this Act, it may, by order, published in the Official
Gazette, direct that the provisions of Chapter VIII shall apply:
(a) to broadcasting organizations whose headquarters is situated in a country to which the order relates
or, the broadcast was transmitted from a transmitter situated in a country to which the order relates
as if the headquarters of such organisation were situated in India or such broadcast were made
from India;
292 PP-IPRL&P

(b) to performances that took place outside India to which the order relates in like manner as if they
took place in India;
(c) to performances that are incorporated in a sound recording published in a country to which the
order relates as if it were published in India;
(d) to performances not fixed on a sound recording broadcast by a broadcasting organisation the
headquarters of which is located in a country to which the order relates or where the broadcast is
transmitted from a transmitter which is situated in a country to which the order relates as if the
headquarters of such organisation were situated in India or such broadcast were made from India.

Section 40A (2) also provides that the order so made by the Central Government may provide that:
(i) the provisions of Chapter VIII shall apply either generally or in relation to such class or classes of
broadcasts or performance or such other class or classes of cases as may be specified in the order;
(ii) the term of the rights of broadcasting organisations and performers in India shall not exceed such
term as is conferred by the law of the country to which the order relates;
(iii) the enjoyment of the rights conferred by Chapter VIII shall be subject to the accomplishment of such
conditions and formalities, if any, as may be specified in that order;
(iv) chapter VIII or any part thereof shall not apply to broadcast and performances made before the
commencement of the order or that Chapter VIII or any part thereof shall not apply to broadcasts
and performances broadcast or performed before the commencement of the order;
(v) in case of ownership of rights of broadcasting organisations and performers, the provisions of
Chapter VIII shall apply with such exceptions and modifications as the Central Government, may
having regard to the law of the foreign country, consider necessary.

Power to Restrict Rights of Foreign Broadcasting Organisations and Performers

Section 42A provides that if it appears to the Central Government that a foreign country does not give or has
not undertaken to give adequate protection to rights of broadcasting organisations or performers, the Central
Government may, by order, published in the Official Gazette, direct that such of the provisions of this Act as
confer right to broadcasting organizations or performers, as the case may be, shall not apply to broadcasting
organizations or performers whereof are based or incorporated in such foreign country or are subjects or
citizens of such foreign country and are not incorporated or domiclied in India, and thereupon those
provisions shall not apply to such Broadcasting organizations or performers.

Registration of Copyright
Chapter X of the Act containing Sections 44 to 50A deal with various aspects of registration of copyright. The
mechanism for registration of copyright has been contemplated under Section 44 of the Act. It is evident from
the provisions of the aforesaid section that registration of the work under the Copyright Act is not compulsory
and is not a condition precedent for maintaining a suit for damages, if somebody infringes the copyright.
Registration is not a prerequisite for acquisition of a copyright (Nav Sahitya Prakash & Others v. Anan Kumar
& Others AIR 1981 All 200).

Sections 44 and 45 of the Act is only an enabling provision and the provisions contained therein do not affect
common law right to sue for infringement of the copyright, therefore, registration of the work under the Act is
not compulsory and that registration is not a condition precedent for maintaining a suit for damages for
infringement of copyright (R. Madhavan v. S K Nayar AIR 1988 Ker 39). The only effect of registration is
what is stated in Section 48, to wit, that it shall be prima facie evidence of the particulars entered in the
 Lesson 12 Copyrights 293

register. There is no indication in any of the provisions of the Act, read individually or a whole, to suggest that
registration is condition precedent to subsistence of copyright or acquisition of ownership thereof.

There is no section in the Copyright Act, 1957, to the effect that the author can have no right or remedy
unless the work is registered. Satsang and Another v. Kiron Chandra Mukhopadhyay & Others AIR 1972 Cal
533. In Jayanthilal M. Munoth and Ors. v. M. Durairajan, [2006] 132 Com Cases 797(Mad) where a petition
was filed for infringement of copyright and the same was challenged by the respondents on the ground that
that there was no registration of copyright. The Court held that registration of copyright was not a pre-
condition for filing a suit or for launching prosecution for violation of copyright.

The Register of Copyrights is to be maintained by the Copyright Office to enter the names or titles of works
and the names and addresses of authors, publishers and owners of copyright. The Register of Copyrights is
to be kept in six parts, namely, Part I Literary works other than computer programmes, tables and
compilations including computer data bases and dramatic works; Part II Musical works; Part III Artistic works;
Part IV Cinematograph films; Part V Sound Recording; and Part VI Computer programmes, tables and
compilations including computer data bases.

Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration of a work.
Copies of the Act and Rules can be obtained from the Manager of Publications, Publication Branch, Civil
Lines, Delhi or his authorised dealers on payment. The procedure for registration is as follows:

• Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement
of Further Particulars) as prescribed in the first schedule to the Rules ;

• Separate applications should be made for registration of each work;

• Each application should be accompanied by the requisite fee prescribed in the second schedule to the
Rules ; and

• The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or
Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the
advocate should also be enclosed.
Each and every column of the Statement of Particulars and Statement of Further Particulars should be
replied specifically.

Both published and unpublished works can be registered. Copyright in works published before 21st January,
1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still
enjoy copyright. Three copies of published work may be sent along with the application. If the work to be
registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the
stamp of the Copyright Office in proof of the work having been registered. In case two copies of the
manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as
far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the
applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the
return of the extracts after being stamped with the seal of the Copyright Office.

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

INFRINGEMENT OF COPYRIGHT
Copyright protection gives exclusive rights to the owners of the work to reproduce the work enabling them to
derive financial benefits by exercising such rights. If any person without authorisation from the owner
294 PP-IPRL&P

exercises these rights in respect of the work which has copyright protection it constitutes an infringement of
the copyright. If the reproduction of the work is carried out after the expiry of the copyright term it will not
amount to an infringement

In Penguin Books Ltd., England v. M/s India Book Distributors & Others AIR 1985 Del. 29, it was observed
that whenever there is misappropriation of intellectual property of which the primary beneficiary is the
copyright owner there is infringement of copyright. Copyright is a property right. Throughout the world it is
regarded as a form of property worthy of special protection in the ultimate public interest. The law starts from
the premise that protection would be as long and as broad as possible and should provide only those
exceptions and limitations which are essential in the public interest.

Section 51 of the Act contemplates situations where copyright in a work shall be deemed to be infringed. As
per this section copyright in a work is infringed when any person without a licence granted by the owner of
the copyright or the Registrar of Copyright or in contravention of the conditions of a licence so granted or of
any condition imposed by a competent authority does —
(1) anything for which the exclusive right is conferred upon the owner of the copyright, or
(2) permits for profit any place to be used for the communication of the work to public where such a
communication constitutes an infringement of the copyright in the work, unless he was not aware
and had no reasonable ground for believing that such communication would be an infringement of
copyright.
(3) when any person (i) makes for sale or hire or lets for hire or by way of trade display or offers for sale
or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially
the owner of the copyright, or (iii) by way of trade, exhibits in public, or (iv) imports into India any
infringing copies of the work.

However, import of one copy of any work is allowed for private and domestic use of the importer. Explanation
to Section 51 clarifies that the reproduction of literary, dramatic, musical or artistic work in the form of
cinematograph film shall be deemed to be an infringing copy.

The copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner
of the copyright, does anything, the sole right to do which is conferred on the owner of the copyright. Kartar
Singh Giani v. Ladha Singh & Others AIR 1934, Lah 777 (DB).

The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent
registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different
Act, namely, 1957 Act (M/s Power Control Appliances & Others v. Sumeet Machines Pvt. Ltd. (1994) 2 SCC
448).

In Ushodaya Enterprises Ltd v T.V. Venugopal, 2001 PTC 727, the division bench of the Andhra Pradesh
High Court held that even though the defendant has registered the carton under the Trademark Act, that may
not come to the aid of the defendant as the case of the plaintiff is that it owns a copyright of the artistic work
under the Copyright Act and no registration is required for the same. Thus the court held that the plaintiff was
justified in alleging infringement of his artistic work.

One of the surest test to determine whether or not there has been a violation of copy right is to see if the
reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and
get an unmistakable impression that the subsequent work appears to be a copy of the first. In other words,
dealing with the question of infringement of copy right of the applicant’s work by the respondent’s work, the
Court is to test on the visual appearance of the object and drawing, design, or artistic work in question and
 Lesson 12 Copyrights 295

by applying the test viz., `lay observer test’ whether to persons who are not experts in relation to objects of
that description, the object appears to be a reproduction. If to the `lay observer’, it would not appear to be
reproduction, there is no infringement of the artistic copy right in the work. A bare look at these two artistic
works `Sharp’ and `Sharp tools’. Moreover, the work `sharp’ in the work of the appellant is embedded in a
semi-circle design with rays emitting from it as if it were a rising Sub; whereas, in the respondent’s work it is
plainly `Sharp Tools’ with no design super imposing it. Judging by the eye alone, they appear to Court to be
totally different. One does not think that any one looking at these two works would say that they are similar in
any manner nor do any one would say the design, the lay-out and the manner in which the words written in
the works of the respondent was on obvious imitation, much less an imitation of the appellant’s work.
Applying the various tests set out above, it cannot be said that the respondent had committed an act of
piracy by way of copying the copyright of the appellant. As rightly pointed out by the Copyright Board that
there can be no copyright in the word or words, but the right can only be in the artistic manner in which the
same is written, and in this case the works were totally dissimilar. [Associated Electronic & Electrical
Industries (Bangalore) Pvt. Ltd. v. M/s Sharp Tools AIR 1991 Kar 406].

M/s. Video Master & another v. M/s. Nishi Productions & others, 1998(3) Bom. CR 782. The given case
examined the circumstances under which the exhibition of film by various modes infringed copy rights. The
plaintiff was assigned video playback and cable T.V rights and he objected to the defendants being given the
satellite broadcasting rights. The Court observed that there were various modes of communication to public
and each one was separate and divisible. It was held that each of the modes of communication could exist in
different persons at the same time without infringing copy right of the other.

The Bombay High Court in Hindustan Lever Ltd., v. Nirma Private Limited, Ahmedabad, AIR 1991 held that
the dissimilarities were totally inadequate to wipe out general impression of the unwary purchaser. Thus,
there was prima facie infringement of copyright. The case dealt with the infringement of the copyright in the
label when there were only few changes made in the colourable imitation of label.

In Eastern Book Company & Others v. Navin J. Desai & Another 2001 PTC (21) 57 Del., Delhi High Court
has held:

Copyright is a limited monopoly having its origin in protection. There cannot be any monopoly in the subject
matter which the author has borrowed from public domain. Others are at liberty to use the same material.
Material in which no one has a copyright is available to all. Every man can take what is useful from the,
improve, add and give to the public the whole comprising the original work with his additions and
improvements. Under the guise of the copyright, the plaintiffs cannot ask the Court to restrain the defendants
from making this material available to public. Judgements/orders published by the plaintiffs in their law
reports ‘Supreme Court Cases’ is not their original literary work but has been composed of, complied and
prepared from and reproduction of the judgements of the Supreme Court of India, open to all. Merely by
correcting certain typographical or grammatical mistakes in the raw source and by adding commas, full stops
and by giving paragraph numbers to the judgement will not their work as the original literary work entitled to
protection under the Copyright Act. Plaintiffs, therefore, have no copyright in the judgements published in
their law reports. There being no copyright in the plaintiffs, there is no question of the defendant infringing
any alleged copyright. Plaintiffs have failed to make out any prima facie case in their favour and are,
therefore, not entitled to any relief in the application.

In Godrej Soaps (P) Ltd. v. Dora Cosmetics Co.2001 PTC (21) 407 Del. It was held that the Delhi High Court
held that where the carton was designed for valuable consideration by a person in the course of his
employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff
is the assignee and the legal owner of copyright in the carton including the logo.
296 PP-IPRL&P

Crowning Glory carton was designed for valuable consideration by a person who produced the said work in
the course of his employment with advertising company under a contract of service for and on behalf of the
plaintiff. By the reason of the circumstances in which the said artistic work was produced, the plaintiff is the
owner of the legal and equitable title in the artistic work. As a matter of abundant caution the copyright in the
carton was assigned to the plaintiff. Plaintiff has proved that it is the assignee of the copyright in the carton
for ‘Crowning Glory’

Statutory Exceptions
Certain exceptions to infringement have been stipulated by the Copyright Act. The object of these exceptions
is to enable the reproduction of the work for certain public purposes, and for encouragement of private study,
research and promotion of education. The list of acts which do not constitute infringement of copyright has
been provided under Section 52 of the Act. These include

(i) A fair dealing with literary, dramatic, musical or artistic work, not being a computer programme, for the
purposes of—
• private or personal use, including research;
• criticism or review, whether of that work or of any other work;
• reporting of current events and current affairs, including the reporting of a lecture delivered in public.
• It may be noted that storing of any work in any electronic medium including the incidental storage of any
computer programme which is not itself an infringing copy for the said purposes, shall not constitute
infringement of copyright.

(ii) The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such
computer programme, from such copy in order to utilise the computer programme for the purposes for which
it was supplied; or to make back-up copies purely as a temporary protection against loss, destruction or
damage in order only to utilise the computer programme for the purpose for which it was supplied.

(iii) the doing of any act necessary to obtain information essential for operating inter-operability of an
independently created computer programme with other programmes by a lawful possessor of a computer
programme provided that such information is not otherwise readily available.

(iv) the observation, study or test of functioning of the computer programme in order to determine the ideas
and principles which underline any elements of the programme while performing such acts necessary for the
functions for which the computer programme was supplied.

(v) the making of copies or adaptation of the computer programme from a personally legally obtained copy
for non-commercial personal use.

(vi) the transient or incidental storage of a work or performance purely in the technical process of electronic
transmission or communication to the public.

(vii) transient or incidental storage of a work or performance for the purpose of providing electronic links,
access or integration, where such links, access or integration has not been expressly prohibited by the right
holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is
of an infringing copy.

It may be noted that if the person responsible for the storage of the copy has received a written complaint
from the owner of copyright in the work, complaining that such transient or incidental storage is an
infringement, such person responsible for the storage shall refrain from facilitating such access for a period
 Lesson 12 Copyrights 297

of twenty-one days or till he receives an order from the competent court refraining from facilitating access
and in case no such order is received before the expiry of such period of twenty-one days, he may continue
to provide the facility of such access.

(viii) the reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a
judicial proceeding.

(ix) the reproduction or publication of any work prepared by the Secretariat of a Legislature or, where the
Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the
use of the members of that Legislature.

(x) the reproduction of any work in a certified copy made or supplied in accordance with any law for the time
being in force;

(xi) the reading or recitation in public of reasonable extracts from a published literacy or dramatic work.

(xii) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for
instructional use, and so described in the title and in any advertisement issued by or on behalf of the
publisher, of short passages from published literary or dramatic works, not themselves published for such
use in which copyright subsists. However, not more than two such passages from works by the same author
are published by the same publisher during any period of five years.

In the case of a work of joint authorship, references in this clause to passages from works shall include
references to passages from works by any one or more of the authors of those passages or by any one or
more of those authors in collaboration with any other person.

(xiii) the reproduction of a literary, dramatic, musical or artistic work—

• by a teacher or a pupil in the course of instruction; or

• as part of the questions to be answered in an examination; or

• in answers to such questions.

(xiv) the performance, in the course of the activities of an educational institution, of a literary, dramatic or
musical work by the staff and students of the institution, or of a cinematograph film or a sound recording if
the audience is limited to such staff and students, the parents and guardians of the students and persons
connected with the activities of the institution or the communication to such an audience of a cinematograph
film or sound recording.

(xv) the causing of a recording to be heard in public by utilising it,-

• in an enclosed room or hall meant for the common use of residents in any residential premises (not
being a hotel or similar commercial establishment) as part of the amenities provided exclusively or
mainly for residents therein; or

• as part of the activities of a club or similar organisation which is not established or conducted for profit;

• as part of the activities of a club, society or other organisation which is not established or conducted for
profit.

(xvi) the performance of a literary, dramatic or musical work by an amateur club or society, if the
performance is given to a non-paying audience, or for the benefit of a religious institution.
298 PP-IPRL&P

(xvii) the reproduction in a newspaper, magazine or other periodical of an article on current economic,
political, social or religious topics, unless the author of such article has expressly reserved to himself the right
of such reproduction.

(xviii) the storing of a work in any medium by electronic means by a noncommercial public library, for
preservation if the library already possesses a non-digital copy of the work.

(xix) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or
plan) by or under the direction of the person in charge of a non-commercial public library for the use of the
library if such book is not available for sale in India;

(xx) the reproduction, for the purpose of research or private study or with a view to publication, of an
unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the
public has access.

However, where the identity of the author of any such work or, in the case of a work of joint authorship, of
any of the authors is known to the library, museum or other institution, as the case may be, the provisions of
this clause shall apply only if such reproduction is made at a time more than sixty years from the date of the
death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is
known or, if the identity of more authors than one is known from the death of such of those authors who dies
last;

(xxi) the reproduction or publication of-

• any matter which has been published in any Official Gazette except an Act of a Legislature;
• any Act of a Legislature subject to the condition that such Act is reproduced or published together with
any commentary thereon or any other original matter;
• the report of any committee, commission, council, board or other like body appointed by the
Government if such report has been laid on the Table of the Legislature, unless the reproduction or
publication of such report is prohibited by the Government;
• any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or
publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as
the case may be.

(xxii) the production or publication of a translation in any Indian language of an Act of a Legislature and of
any rules or orders made thereunder-
• if no translation of such Act or rules or orders in that language has previously been produced or
published by the Government; or
• where a translation of such Act or rules or orders in that language has been produced or published by
the Government, if the translation is not available for sale to the public:
• however, such translation contains a statement at a prominent place to the effect that the translation
has not been authorised or accepted as authentic by the Government.

(xxiii) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or
the display of a work of architecture.

(xxiv) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic
work failing under sub-clause (iii) of clause (c) of Section 2, if such work is permanently situate in a public
place or any premises to which the public has access.
 Lesson 12 Copyrights 299

(xxv) the inclusion in a cinematograph film of-

• any artistic work permanently situate in a public place or any premises to which the public has access;
or
• any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the
principal matters represented in the film.

(xxvi) the use by the author of an artistic work, where the author of such work is not the owner of the
copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.
However, he does not thereby repeat or imitate the main design of the work.

“(xxvii) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical
drawing, for the purposes of industrial application of any purely functional part of a useful device;

(xxviii) the reconstruction of a building or structure in accordance with the architectural drawings or plans by
reference to which the building or structure was originally constructed . However, the original construction
was made with the consent or licence of the owner of the copyright in such drawings and plans.

(xxix) in relation to a literary, “dramatic, artistic or” musical work recorded or reproduced in any
cinematograph film the exhibition of such film after the expiration of the term of copyright therein .However,
the provisions of sub-clause (ii) of clause (a), sub-clause (a) of clause (b) and clauses (d), (f), (g), (m) and (p)
shall not apply as respects any act unless that act is accompanied by an acknowledgment-
• identifying the work by its title or other description; and
• unless the work is anonymous or the author of the work has previously agreed or required that no
acknowledgement of his name should be made, also identifying the author.

(xxx) the making of an ephemeral recording, by a broadcasting organisation using its own facilities for its own
broadcast by a broadcasting organisation of a work which it has the right to broadcast; and the retention of
such recording for archival purposes on the ground of its exceptional documentary character.

(xxxi) the performance of a literary, dramatic or musical work or the communication to the public of such work
or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the
Central Government or the State Government or any local authority. However, religious ceremony including
a marriage procession and other social festivities associated with a marriage.

“(xxxii) the adaptation, reproduction, issue of copies or communication to the public of any work in any
accessible format by any person to facilitate persons with disability to access to works including sharing with
any person with disability of such accessible format for private or personal use, educational purpose or
research; or any organisation working for the benefit of the persons with disabilities in case the normal format
prevents the enjoyment of such works by such persons. However, the copies of the works in such accessible
format are made available to the persons with disabilities on a non-profit basis but to recover only the cost of
production and the organization shall ensure that the copies of works in such accessible format are used
only by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of
business.

It may be noted that “any organization” includes and organization registered under Section 12A of the
Income-tax Act, 1961 and working for the benefit of persons with disability or recognized under Chapter X of
the Persons with Disabilities (Equal Opportunities, Protection or Rights and full Participation) Act, 1995 or
receiving grants from the government for facilitating access to persons with disabilities or an educational
institution or library or archives recognized by the Government.”.
300 PP-IPRL&P

(xxxiii) the importation of copies of any literary or artistic work, such as labels, company logos or promotional
or explanatory material, that is purely incidental to other goods or products being imported lawfully.

Remedies against Infringement of Copyright

Protection of rights under the copyright law, which is basically a negative right is as much a problem of
complying with the mandatory provisions of the procedural law as the effective exercise of investigative and
adjudicatory functions by the enforcing authorities and the courts.

Section 54 to Section 62 of the Copyright Act provide for civil remedies under the Act. Section 55 provides
that where copyright in any work has been infringed, the owner of the copyright can, except as otherwise
provided in the Act, be entitled to all remedies like injunctions, damages and accounts as are conferred by
law for the infringement of a right. However, if the defendant proves that at the date of the infringement he
was not aware and had no reasonable ground to believe that copyright subsisted in the work, the plaintiff will
not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the
whole or part of the profits made by the defendant by the sale of the infringing copies as the court may, in the
circumstances, deem reasonable.

In Zee Telefilm Limited v. Aalia Productions & Others 2000 PTC 382 Bom. there was a dispute relating to
transfer of copyright in TV serial ‘India’s Most Wanted’. It was held that in the absence of any specific rights
assigned by the defendants in respect of concept/script/story/synopsis/structure and/or format of programme,
the plaintiffs cannot seek injunction against the defendant. The assignment agreement executed between the
plaintiff and the defendants as regards structure, format, concept, synopsis and script vague and uncertain,
the plaintiffs are not entitled to any interim relief.

The case of Hawkins Cookers Ltd. v. Magicook Appliances Co., 100(2002) DLT698 discussed the grant of
permanent injunction to the plaintiff for restraining the defendant from using a label for pressure cookers,
which was deceptively similar to the registered trade mark ‘HAWKINS’ of the plaintiff – On non-appearance
of the plaintiff, an ex-parte order was passed and it was ruled that, the unjust enrichment by the infringing
party, was a mischief and the plaintiff was to be protected from it as per Section 55 of the Copyright Act,
1957. Hence permanent injunction was granted.

In any civil proceedings under the Copyright Act for infringement of copyright, it is the District Court which will
have jurisdiction over such matters. Section 62 (2) further provides that notwithstanding anything contained
in the Civil Procedure Code, 1908 or any other law for the time being in force, the District Court within the
local limits of whose jurisdiction the person instituting the suit is actually or voluntarily residing or carrying on
business or personally working for gain will have jurisdiction in the matter.

Administrative remedies consist of moving the Registrar of Copyrights under Section 53 to ban the import of
infringing copies into India and the delivery of infringing copies confiscated to the owner of the copyright.

Criminal remedies provide for the imprisonment of the accused or imposition of fine or both, seizure of
infringing Copies and delivery of infringing copies to the owner of the copyright. Prior to the maximum
punishment for infringement of copyright under Section 63 of the Copyright Act, 1957 was one year's
imprisonment and fine. These punishments were enhanced by the Copyright (Amendment) Act, 1984 with a
view to curbing widespread piracy in video-taping and musical records. Under these provisions, a person
who knowingly infringes or abets the infringement of copyright in a work or any other right conferred by the
Copyright Act, is punishable with imprisonment for a term of not less than six months but which may extend
to three years and fine which shall not be less than ` 50,000/-, but which may extend to ` 2.00,000/-.
However, the court has the discretion to reduce the minimum ter n of imprisonment and the minimum fine for
adequate and special reasons. For the second and subsequent convictions, the minimum term of
 Lesson 12 Copyrights 301

imprisonment has been prescribed as one year and the minimum fine ` 1,00,000/-. The amendment in 1994,
has further restricted the discretion of the court to impose lesser penalties than the minimum prescribed in
the Act. The imposition of lesser penalties than the minimum prescribed in the Act has been restricted to
cases where the infringement has not been made for gain in the course of trade and business. In other
words, courts have been given discretion to impose a lesser penalty where the infringement is of a technical
nature and not motivated by business considerations.

Section 54 defines the term owner of copyright. In Rupendra Kashyap v. Jiwan Publishing House 1996 PTC
(16) 439 Del., it was held that CBSE is a public undertaking; examination papers are literary work made
under the direction and control of CBSE and applicability of Section 17(dd) of Copyright Act is squarely
attracted to the facts of the case. CBSE is the first owner of the copyright in the examination papers on which
examinations are conducted by it.

In another case Allahabad high Court has held that the copyright in the question papers set for the High
School and Intermediate examinations belongs to the paper-setters and since this copyright neither belonged
to nor has been assigned to the Board, the notification which declares that ‘copyright of the question papers
set at the examinations conducted by Board shall vest in the Board’ is clearly bad. Simply by issuing a
notification under the Intermediate Education Act, the State Government could not arrogate to itself or to the
Board a right which neither of them possessed under the law relating to copyright, embodied in the Copyright
Act of 1957 (Agarwala Publishing House v. Board of High School and Intermediate Education & Another AIR
91: 1996 All LJ 550).

Section 58 entitles the owner of the copyright to initiate proceedings for the possession of infringing copies
and other materials related thereto. In this context, the section clarifies that all infringing copies of any work
in which copyright subsists and all plates used or intended to be used for the production of such infringing
copies shall be deemed to be the property of the owner of the copyright.

Eastern Book Company & Ors.vs. D.B. Modak & Anr. Appeal (civil) 6472 of 2004, D/12/12/2007(AIR
2008 Supreme Court 809,810)

The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or
publication would not infringe the copyright. That being the position, the copy-edited judgments would not
satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-
edited judgments and the original or innovative thoughts for the creativity are completely excluded.
Accordingly, original or innovative thoughts are necessary to establish copyright in the authors work. The
principle where there is common source the person relying on it must prove that he actually went to the
common source from where he borrowed the material, employing his own skill, labour and brain and he did
not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of
the court, unless so made by the court itself. To secure a copyright for the judgments delivered by the court,
it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the
judgment printed in SCC some quality or character which the original judgment does not possess and which
differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original
idea but with the expression of thought. Copyright has nothing to do with originality or literary merit.
Copyrighted material is that what is created by the author by his own skill, labour and investment of capital,
maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being
should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data
contained in the work, a work somewhat different in character is produced by the author. To claim copyright
in a compilation, the author must produce the material with exercise of his skill and judgment which may not
be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely
labour and capital. The derivative work produced by the author must have some distinguishable features and
302 PP-IPRL&P

flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment
would not satisfy the test of copyright of an author.

Adding, in the copyedited version the cross-citations to the citation(s) already given in the original text;
adding names of cases and cross-citations where only the citation of the case is given; adding citation and
cross-citations where only name of the case is given; inserting citation in case history where only the title and
year of the impugned/earlier order is given; presenting in their own style the cases when they are cited
repeated in the judgment; providing precise references to the quoted matter in the judgment by giving exact
page and paragraph number as in the original case source/treatise/reference material; adding margin
headings to quoted extracts from statutes/rules, etc., when they are missing from the original text of the
judgment; adding the number of the Section/Rule/Article/paragraph to the extract quoted in the original text;
adding the names of Judges on whose behalf opinion given ; adding ellipsis “.........” to indicate breaks in
quoted extract; supplying the matter inadvertently missed in quoted extracts in the original text of the
judgment; changing the text as per corrigenda issued, etc. etc., does not give the Law Journal copyright in
the copy-edited judgement.

Win Medicare Pvt Ltd. v. K. Pharmaceutical Works 126 (2006) DLT 651 Badar Durrez Ahmed, J.

Brief Facts:

Plaintiff is the manufacturer of BETADINE and also the owner of the design of the bottle and the labels.
Defendant also manufactured similar product and marketed the same. The shape of the bottle and the
artwork, color combination of the labels etc., were identical with that of the plaintiff. Plaintiff sued for
infringement and consequent damages.

Decision: Suit decreed.

Reason:

A comparison of the bottles, of the plaintiff and defendant, clearly shows that the defendant substantially
copied the bottle of the plaintiff. Thereby the defendant has adopted an identical and/or substantially similar
getup, layout and color combination on its “Povidone Iodine Solution” bottle labels which would amount to the
infringement of the copyright which vests with the plaintiff in the said label. In these circumstances, the act
and conduct of the defendant would amount to passing off and, therefore, the suit is decreed.

Expar S A & anr vs. Upharma Laoratorie Ltd. & anr [JT 2004 9 (3) 1 sc] Ruma Paul & P. Venkatrama
Reddi, JJ. [Decided on 20.02.2004]

Brief Facts: The appellants filed a suit for infringement of copyrights, in respect of their medicinal product
'Maloxine", against the respondents in the Delhi High Court and sought injunction against them. The Single
Judge of the Court granted an interim injunction against which both the appellants as well as the
respondents went in appeal to the Division Bench. The Division Bench allowed the appeal of the
respondents and directed the appellants suit to be returned to them for filing before the appropriate court.
Against this order of the Division bench the appellants moved the Supreme Court raising an issue whether
the High court of Delhi has the jurisdiction under section 69(2) of the Copyrights Act to entertain the suit filed
by the appellants

Decision: Appeal Allowed.

Reasons:

The object and reason for the introduction of subsection (2) of section 62 was not to restrict the owners of the
copyright to exercise their rights but to remove any impediment from their doing so. Section 62(2) cannot be
 Lesson 12 Copyrights 303

read as limiting the jurisdiction of the district court only to cases where the person instituting the suit or other
proceeding, or where there are more than one such persons, any of them actually and voluntarily resides or
carries on business or presently works for gain. It prescribes an additional ground for attracting the
jurisdiction of a court over and above the 'normal' grounds as laid down in section 20 of the Code. Even if the
jurisdiction of the court were restricted in the manner construed by the Division Bench, it is evident not only
from the cause title but also from the body of the plaint that the Appellant No.2 carries on business within the
jurisdiction of the Delhi High Court. The appellant no.2 is certainly "a person instituting the suit". The Division
Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it
found that the appellant no.2 had not claimed ownership of the copyright of the trademark infringement of
which was claimed in the suit. The appellant no.2 may not be entitled to the relief claimed in the suit but that
is 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.

Service of a mere notice may not be sufficient to found jurisdiction unless such notice formed an integral part
of the cause of action. But a 'cease and desist' notice in a copyright action cannot, particularly in view of
section 60 of the Act, be termed to be a 'mere' notice. Such a threat may give rise to the right to institute a
suit to counter such threat and to ask for relief on the ground that the alleged infringement to which the threat
related was not in fact an infringement of any legal right of the person making such threat.

The impugned decision is accordingly set aside and the matter is remanded to the Division Bench for
disposal of the appeals filed by the respondents and appellants on merits.

Moral Rights — Author’s Special Right

Apart from remedies for infringement of copyright, the Act expressly provides for the protection of special
rights of the author known as moral rights. Under Section 57 of the Act an author of copyright work can
restrain or claim damages in respect of any distortion or mutilation of the work or any other action in relation
to the said work which would be prejudicial to his honour or reputation. These rights can be exercised 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.

Anton Pillar Injunctive Relief in India

Besides traditional remedies the non-traditional forms of remedies like, Anton Piller Order, interlocutory
injunction, etc, have assumed more popularity nowadays.

The first use of such order was made by Templeman J, in EMI v. Pandit, (1975) 1All E R 418, to protect the
offending evidences from being destroyed. However, it was only after the case of Anton Piller KG v.
Manufacturing Process,(1976) 1All E R 779.418, that it gained recognition and popularity.

The statutes governing intellectual property in India like Copyright Act, 1957, Trade Marks Act, 1999; Patents
Act, 1970 (as amended by Patents (Amendment) Act, 2005, Designs Act, 2000 etc. stipulate the rights that
are available to the intellectual property owner, besides containing a sound mechanism to prevent the
infringement of intellectual property rights. The remedies available for protection of IPR are broadly classified
into civil and criminal remedies.

The orders in line of Anton Piller order are made under the head of civil remedies. The application of Anton
Piller order in India is still in a nascent stage. There is not much case-laws debating over the aspects of
Anton Piller order. One of the earliest case that dealt with the concept of Anton Piller order, though cursorily
was National Garments v. National Apparels,(1990) PTC98.

In Bucyrus Europe Ltd. v. Vulcan Industries Engineering Co. Pvt. Ltd., 2005(30) PTC 279, the court observed
304 PP-IPRL&P

that an Anton Piller order can be passed in the following situations:

• Where the plaintiff has an extremely strongly prima facie case;
• Where the actual or potential damage to the plaintiff is very serious;
• Where it was clear that the defendant possessed vital evidence; and
• There was a real possibility that the defendant might destroy or dispose of such material so as to defeat
the ends of justice.
The purpose of Anton Piller order is the preservation of evidences.
The application of Anton Piller order in India is still in nascent stage and lot many questions are still left
unanswered.

APPEALS
An appeal under the the Copyright Act, 1957 lies against (a) certain orders of magistrate & (b) against orders
of Registrar of Copyrights and Copyright Board:-

As per Section 71 of the Act any person aggrieved by an order under sub-section (2) of Section 64 or
Section 66 may, within thirty days of the date of such order, appeal to the court to which appeals from the
court making the order ordinarily lie, and such appellate court may direct that execution of the order be
stayed pending disposal of the appeal.

Section 72(1) provides that any person aggrieved by any final decision or order of the Registrar of Copyrights
may, within three months from the date of the order or decision, appeal to the Copyright Board.

Any person aggrieved by any final decision or order of the Copyright Board, not being a decision or order
made in an appeal under sub-section (1), may, within three months from the date of such decision or order,
appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on
business or personally works for gain.

However, no such appeal shall lie against a decision of the Copyright Board under Section 6.

INTERNATIONAL CONVENTIONS
The first multilateral agreement on copyright is the Berne Convention which was concluded in 1886 and was
meant for providing protection to literary and artistic works. A country joining the Convention has to provide
copyright protection to literary and artistic works of member countries in its own territory and also entitled for
enjoying reciprocal protection from others. The Berne Convention was revised seven times in 1896 (at
Paris), 1908 (at Berlin), 1928 (at Rome), 1948 (at Brussels), 1967 (at Stockholm) and 1971 (at Paris) and
finally in 1978. Among these, the 1971 revision (the Paris Act) is of particular importance to the developing
countries as it provided special concessions to these countries in making translations and reproduction of
foreign literary works for educational purposes. Ninety countries are at present member of the Berne
Convention.

The post Second World War era saw the emergence of the need for protecting copyright on an universal
basis. Till then countries in the North America were not party to the Berne Convention and copyright
protection in these countries were governed by various national and regional agreements.

In August, 1952 the Intergovernmental Copyright Conference was convened in Geneva which led to the
adoption of another historical copyright convention, namely the Universal Copyright Convention (UCC). The
UCC is not a substitute for the Berne Convention. Rather it tried to establish the link between the countries
 Lesson 12 Copyrights 305

on the Bern Union and those in North America. India is a member of both the Berne Convention and the
UCC.

TRIPS Agreement negotiated at the Uruguay Round of General Agreement on Tariffs and Trade (GATT) in
1994 came into effect on 1 January 1995. The text comprises 73 articles grouped in seven different parts.
The standards for specific IPRs such as copyright and related rights are discussed under articles 9-14.

LESSON ROUND UP
• Copyright is a well recognized form of property right which had its roots in the common law system and
subsequently came to be governed by the national laws in each country.
• Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of
cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction,
communication to the public, adaptation and translation of the work.
• In India, the law relating to copyright is governed by the Copyright Act, 1957 which has been amended in 1983,
1984, 1985, 1991, 1992, 1994, 1999 and 2012 to meet with the national and international requirements
• Under the Copyright Act, 1957 copyright subsists throughout India in the following classes of works: Original
literary; dramatic, Musical and artistic works; Cinematograph films; and Sound recordings.
• The definition of “Literary wok” under the Copy Right Act, 1957 includes computer programmes, tables and
compilations including computer “literary data bases.
• Literary, dramatic, musical or artistic works enjoy copyright protection for the life time of the author plus 60 years
beyond i.e. 60 years after his death. In the case of copyright in posthumous, anonymous and pseudonymous works,
photographs, cinematograph films, sound recordings, works of Government, public undertaking and international
organisations, the term of protection is 60 years from the beginning of the calendar year next following the year in
which the work has been first published.
• The Act provides for the establishment of the Copyright Board and empowers the Central Government to constitute
the same consisting of a Chairman and not less than two, but not more than fourteen members.
• The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign
to any person the copyright Section 18 of the Copyright Act provides for the assignment of copyright in an existing
work as well as future work.
• An assignment of copyright should be in writing signed by the owner of the copyright.
• The Act empowers the owner of the copyright in any existing work or the prospective owner of the copyright in any
future work to grant any interest in the right by licence in writing by him or by his duly authorised agent.
• Central Government has been authorised to register association of persons as copyright society. The Central
Government cannot register more than one copyright society to do business in respect of the same class of works.
The Act empowers a Copyright Society to accept exclusive authorisation from an owner of Copyright to administer
any right in any work by issuing licences or collection of licence fee or both.
• The Act recognizes rights of broadcasting organisations and of performers. The Act entitles every broadcasting
organisation to have a special right to be known as "broadcast reproduction right" in respect of its broadcasts for
twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.
• The Copyright Act applies only to works first published in India, irrespective of the nationality of the author. However
the Act empowers the Government of India to extend the benefits of all or any of the provisions of the Act to works
first published in any foreign country.
• Government of India has passed the International Copyright Order, 1958. According to this order any work first
published in any country which is a member of the Berne Convention or the Universal Copyright Convention will be
accorded the same treatment as if it was first published in India.
• The registration of the work under the Copyright Act is not compulsory and is not a condition precedent for
306 PP-IPRL&P

maintaining a suit for damages, if somebody infringes the copyright.

• Act contemplates situations where copyright in a work is deemed to be infringed and provides for civil remedies,
administrative remedies and criminal to the owner of the copyright in the event of infringement.
• Apart from remedies for infringement of copyright, the Act expressly provides for the protection of special rights of
the author known as moral rights.
• Besides traditional remedies, the non-traditional forms of remedies like, Anton Pillar Order, interlocutory injunction,
etc, have assumed more popularity nowadays.

SELF TEST QUESTIONS

1. Briefly explain the term “copyright” and the rights conferred by the copyright.
2. There is no copyright in an idea. Explain.
3. The philosophical justification for including computer programmes within the definition of “literary
work'' has been that computer programmes are also products of intellectual skill like any other
literary work. Discuss
4. Copyright protects the rights of authors. How an author has been defined under the Copyright Act?
5. Write short notes on the following:
(a) Assignment of copyright
(b) Copyright societies
(c) Term of copyright
(d) Broadcast and reproduction right
(e) Anton Piller order
6. Briefly explain the procedure relating to registration of copyright. Is registration of the work
compulsory under the Copyright Act?
7. What do you mean by performer’s right? What are the exclusive rights of a performer under the
Copyright Act?
8. Who is authorized to constitute the Copyright Board? Enumerate the functions of the Copyright
Board.
9. Briefly outline the remedies available to a copyright owner when his copyright is infringed?
10. Can copyright be assigned? If so, what is the mode of assigning copyright?