Copyright

Copyright is a legal right created by the law of a country that grants the creator of original work exclusive
rights for its use and distribution. This is usually only for a limited time. Copyright is a form of intellectual
property, applicable to certain forms of creative work. It is often shared among multiple authors, each of
whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders.
Nature and Salient Features of Copyright Act
Introduction
Copyright is a form of intellectual property protection granted under the Indian Copyright Act 1957 to the
creators of original works of authorship such as literary works (including computer programmes, tables
and compilations), dramatic, musical and artistic works, cinematographic films and sound recordings.
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.
India being a member both of the Berne Convention and the Universal Copyright Convention, amended its
Copyright Act of 1957, in 1983, 1984, 1992, 1994, 1999 and 2012 to bring the Indian law in conformity with
these international conventions.
Subject Matter of Copyright
In order to secure copyright protection what is required is that the
author must have bestowed upon the work,
1. Sufficient judgment,
2. Skill, and
3. Labour or Capital.
In Walter v. Lane, (1990) AC 539, it is immaterial whether the work is wise or foolish, accurate or inaccurate,
or whether it has or has not any literary merit.
In another case Ravencraft v. Herbert, (1980) RPC 103, copyright protects the skill and labour employed by
the author in the production of his work.
Works in which Copyright subsists
Literary work
It includes computer programmes, tables, compilations including computer database. A literary work need not
be of literary quality. Even so a work as an index of railway stations or a list of stock exchange quotations
qualifies as a literary work if sufficient effort has been expended in compiling it, to give it a new and original
character. Copyright subsists in the original adaptation of another literary work because the adaptation itself
can be a literary work. Adaptation in relation to literary work means the conversion of the work into a
dramatic work by way of performance in public. A genuine abridgement of a literary work is an original work
and can be subject of copyright. It is entitled to copyright if it is new and original and the author has bestowed
sufficient skill and labour upon it.
In Gleeson v. Denne, (1975) RPC 471, it was held that, if one works hard enough, walking down the streets,
taking down the names of people who live at houses and makes a street directory as a result of that labour,
this has been held to be an exercise sufficient to justify in making claim to copyright in the work which is
ultimately produced.
Dramatic work
It includes any piece for recitation, choreographic work or entertainment in a dumb show, the scenic
arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph
film.
Musical work
Consists of music and includes any graphical notation of such work, but does not include any works or any
action intended to be sung, spoken or performed with the music. Copyright is recognized in original musical
work under the provisions of Section 13(1)(a). Section 2(p) defines ‘Musical Work’ as a work consisting
of music and includes any graphical rotation of such work but does not include any words or any action,
intended to be sung, spoken or performed with music. Adaptation of a musical work is also entitled to
copyright protection. Adaptations in common parlance are usually termed as arrangement, e.g., a
musical work may be modified by the accompanying orchestra.
In Redwood Music v. Chappel (1938), RPC 109, it was held that if a musical arranger so decorates, develops,
transfers to a different medium or otherwise changes the simple music of a popular song so as to make his
arrangement fall within the description of an original musical work, such arrangement or adaptation is capable
of attracting an independent copyright.
Artistic work
It means painting, a sculpture, a drawing, an engraving or a photograph, whether or no any such work
possesses artistic quality. A work of ‘architecture’ means any building or structure having an artistic character
or design or any model for such building or structure.
In Associated Publishers v. Bashyam, AIR 1961 Mad 114, where a portrait of Mahatma Gandhi was made
based on two photographs, it was held that a portrait based on photographs will be entitled to copyright if it
produced a result different from the photograph & the portrait itself is original.
Cinematograph film
Means any work of usual 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 sound track associated with the film is a part of the cinematograph film which is the subject of copyright.
In Balwinder Singh v. Delhi Administration, AIR 1984 Delhi 379, and in Tulsidas v. Vasantha Kumari,
(1991) 1 LW (Mad) 220 at 229, it was held that video and television are both cinematograph films.
Sound recording
Copyright subsists in a sound recording. According to Section 2(xx), a sound recording means a recording of
sounds from which such sounds may be produced regardless of the medium on which such recording is made
or the method by which the sounds are reproduced. Copyright in the music vests in the composer and the
copyright in the music recorded vests in the producer of the sound recording
Who is an author?
Generally, an author is that person who writes or composes the work, either all by himself or according to the
direction given by another person. Whenever a copyrightable work is created, the author puts in his
intellectual ability in order to create the work. Hence, the Copyright Act, 1957, recognizing the efforts put by
the authors, grants authorship rights to the author of the creation. The Copyright Act, 1957 has set a general
rule under the definition of the author of various works laid down under Section 2(d), which states that the
author is the first owner of the Copyright. Section 2(d) of the Copyright Act, 1957. The section reads as
follows:
1. In literary or dramatic works, the author of such work shall be the author.
2. In musical works, the music composer shall be the author.
3. In artistic works, the artist shall be the author.
4. For a photograph, the person clicking such photograph shall be the author.
5. In cinematographic films, the producer of such a film shall be the author.
6. For a sound recording, the producer of such sound recording shall be the author.
7. When a literary, dramatic, artistic or musical work is a computer generated then the person who
causes such work to be created is the author.

Who is an owner?
The concept of ownership is very different under the Copyright Act. As we discussed above, the general rule
is that the author is the first owner of the copyright. However, the Copyright Act, 1957 specifies certain
exceptions to this general rule. Therefore, it becomes very important to understand the difference between
authorship and ownership of copyright. Let us understand with the help of illustrations.

Illustration: If ‘A’ asks ‘B’, a painter to paint his portrait for an agreed sum of money, then although B has
created the painting, he shall be the author and A who paid consideration for the portrait shall become the first
owner of the copyright arising and accruing out of the portrait.

Thomas vs Manorama: In this case, it was held that once the employment agreement is terminated, the work
created by a person subsequent to such termination shall be the first and true owner of copyright arising out of
such subsequent works and the former employer shall possess no copyright on such subsequent copyrightable
work.

Rights of the copyright owner

Right of Reproduction This is the most prominent right which is acquired after the copyright protection. This
right authorizes the person having such copyright to make copies of the protected work in any form. Prior to
copying the permission of the author is required unless it can be shown that such copying is not intended to
make any commercial benefits out of it.

Right to Distribute Right to distribute is an off-shoot of the right of reproduction. The person who owns the
copyright owner may distribute his work in any manner he deems fit. The owner is also entitled to transfer the
whole or some rights in favor of any other person while retaining others.

Right to make Derivative Works The copyright owner has the right to use his work in various ways, for
instance making adaptations or translations. One example of adaptation is making a movie based on a novel,
so here to make any derivative work the consent of the owner is mandatorily required.
Right to Publicly Perform The owner of the copyright has the right to publicly perform his works. Example,
he may perform dramas based on his work or may perform at concerts, etc. This also includes the right of the
owner to broadcast his work. This includes the right of the owner to make his work accessible to the public on
the internet. This empowers the owner to decide the terms and conditions to access his work.

Right to Follow This right is granted generally only to the authors and artists. This empowers the authors to
obtain a percentage of the subsequent sales of his work and is called Droit de Suite or Right to Follow. The
right is also available to artists on resale of their work.

Right of Paternity The Right of Paternity or Attribution gives the copyright owner a right to claim authorship
of the work. Under the Right of Paternity a copyright owner can claim due credit for any of his works. Thus, if
a movie is produced based on a book by an author, and he hasn’t been given due credit in it, he can sue the
makers to acknowledge his work.

Contract of Service Where a man employs another to do work for him under his control so that he can direct
the time when the work shall be done, the means to be adopted to bring about the end, and the method in
which the work shall be arrived at, then the contract is a contract of service.

Contract for Service If a person employs another to do a certain work but leaves it to the other to decide how
that work shall be done, what steps shall be taken to produce that desired effect, then it is a contract for
service. His status is that of an independent contractor who himself decides about the manner of doing work,
in such cases the copyright vests in him and not with the employer.

Computer Software and Copyright Protection

In India, computer software does not form the subject matter of patents as it does not fulfill the requirements
for a patentable product. India has adopted most of the international instruments like TRIPS, Berne
Convention, WIPO Copyright treaty etc and has also incorporated law on software protection. The major
statutes that cover software protection in India are the Copyrights Act, 1957 and Patents Act, 1970.
The Copyright Act of 1957 is the law governing copyrights in India. The Act was amended in 1999 so as to
make the Act compatible with the provisions of TRIPS.

Copyright, in relation to a computer program means the exclusive right to do or authorize to do any of the
following acts :
(1) To reproduce the work in any material form including the storing of it in any medium by electronic means;
(2) To issue copies of the work to the public not being copies already in circulation;
(3) To perform the work in public, or communicate it to the public;
(4) To make any cinematographic film or sound recording in respect of the work;
(5) To make any translation of the work;
(6) To make any adaptation of the work;
(7) To do, in relation to a translation or an adaptation of the work any of the acts specified in relation to the
work in the above;
(8) To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer
program. Commercial renting does not apply to computer programs where the program itself is not the
essential object of the rental.
To do any of the above acts related to the computer program or to use it, a license is required from its owner.
Any person who knowingly makes use of an infringing copy of a computer program is liable to be punished
with imprisonment for a term of at least seven days and can be extended to three years and with fine of at least
Rs. 50,000.
 UNIVERSITY OF LONDON PRESS LTD. V. UNIVERSITY TUTORIAL PRESS, LTD.[2]

There were two examiners who were appointed for the University of London’s matriculation examination but
on the condition that all or any copyright in the examination papers would belong to the University of
London. The same was entered into via a copyright deed assignment between the university and the plaintiff
company, University of London press.

After the whole examination got over, the defendant company, i.e. University Tutorial Press issued
publications of the question papers along with their criticism and answers. The University of London along
with the two examiners, Prof. Lodge and Mr. Jackson, brought up a case against the University Tutorial Press
for Copyright infringement.

There were, in total, four issues raised in this case:

(a) Do the examination papers come within the definition of the term “literary works” under the Act;

(b) If the exam papers were held to be literary works, were they “original”;

(c) At the time when the exam papers were being made, in whom did the copyright reside; and

(d) Did the University tutorial press infringed the copyright rights of the examiners.

It was held that with respect to “literary works”, there is no statutory definition under the UK act of
Copyright, but it is said that literary works include maps, charts, tables, etc. Also, the work has to be
expressed in a printed or written form not keeping into consideration the quality of the work. Since, both the
examiners had applied there mind, labour and judgment, hence the exam papers were held to be literary
works.

With regards to the second issue it was held that since it is already established that copyright law doesn’t
protect idea but protects the expressions of the thought, being in printed or written form in case of literary
works, hence, it was held that the papers set by the examiners were their original literary works.

It was held in 3rd issue that the examiners were the ones who made the papers by applying their skills, they
were in a contract with the University of London and were even paid a lump sum money in return for the
work.

Finally, in 4th issue, it was held that the examiners were not the staff of the university as they were in contact
with other educational institutions as well and they were working for it in a contractual obligation. The work
belonged to the examiners and they had entered into a copyright assignment deed through the university with
the plaintiff company and hence, the University of London was rightly entitled to the copyright of
examination papers. The defendants contended that they published the exam papers for the purpose of private
study and asserted that this is an action of “fair dealing” under the act. Both the publications by both the
universities were done for educational purposes but the defendants could not bring sufficient evidence to
protect themselves under the defense of fair dealing. Hence, the plaintiffs won the case.
 RG. Anand v. M/S Delux Films and Ors

Facts of the case

1. ‘Hum Hindustani’ was a play written by Mr. R.G. Anand, the appellant, and an architect by
profession, in 1953. It was a hit amongst the masses when performed the first time and was re-
performed in the subsequent years. This success got the appellant thinking about turning the play
into a film. The respondent, a film producing company, somehow came to know of the appellant’s
intent and approached him to take things forward in this respect. However, even after a brief
discussion in 1955, the respondent did not revert to the appellant on the same.
2. The appellant got wind that the respondent was making a film titled ‘New Delhi’, which he
believed was an imitation of his famous play Hum Hindustani. When he pulled up the respondent
about it, the latter assured him that the film was not in any way a copy of his theatrical stage show
and he need not worry about it. But when the appellant watched it after the release in 1956, the
film managed to convince him that it was indeed a copy of his stage show.
3. Inevitably, the appellant filed a suit of permanent injunction in the Trial Court in Delhi. He
appealed that the respondent had tried to imitate his work, breaching his copyright, and pleaded
for a restraining order against the respondent. But the court refused to grant the same, stating that
both the film and the play did not have similarities.
4. The appellant then took to the High Court of Delhi, seeking to set aside the order imparted by the
Trial Court. But even the High Court refused to entertain his plea, asserting that the Trial Court
was correct in its stance. Seeing no other way, the appellant finally approached the Supreme Court
by special leave petition under Article-136 of the Indian Constitution, 1949.

Issues involved
The primary issue involved herein was whether the film titled ‘New Delhi’, created by the respondent
breaches the appellant’s copyright for the play titled ‘Hum Hindustani’ or not.

Judgment of the Court

The Supreme Court stated that even though the film and the play had a foundation based on the idea of
provincialism, similarities were negligible. Both of them were very different in their context. There were
various plots in the film that were not present in the play. The apex court also stated that an ordinary man
would not scan any similarity between the two. Thus, it was held that there was no breach of the appellant’s
copyright. The Supreme Court accordingly rejected the appellant’s plea, upholding the Trial Court and the
Delhi High Court’s decision.