INTERNATIONAL COPYRIGHT ORDER

INTERNATIONAL COPYRIGHT UNDER THE INDIAN SYSTEM

In India, Copyright is regulated by the Copyright Act of 1957 and the Copyright
Rules of 2013, and the International Copyright Order, 1999. The Copyright Act
of 1957 is the primary Act concerning Copyright, while the Copyright Rules of
2013 and the International Copyright Order of 1999 are supplementary laws.

THE INTERNATIONAL COPYRIGHT ORDER, 1999

The International Copyright Order is an important piece of law concerning the

copyright of foreign works. It was passed on 24th March 1999 and came to
force on 6th April 1999. It was passed by the Central Government in the
exercise of its power given in Section 40 of the Copyright Act, 1957. It was
passed in supersession of its predecessor, the International Copyright Order of
1991.
The Order contains the conditions and formalities for foreign works and a
schedule which is divided into six parts which list out the countries that are
eligible for copyright protection in India. The countries which are parties to the

• Berne Convention, 1971

• Universal Copyright Convention, 1951

• Geneva Phonograms Convention, 1971

• Trade-Related Aspects of Intellectual Property Rights Agreement

that have either ratified, accepted or acceded to the above-mentioned

Conventions or are yet to ratify, accept or accede to the above-mentioned
Conventions are eligible to avail protection under the Copyright Act, 1957.

THE COPYRIGHT ACT OF 1957

While the Act itself deals with international copyright under Chapter IX, the
terms ‘foreign works’ or ‘international copyright’ are nowhere defined in the
Act9. However, section 2(l) of the Act defines ‘Indian work’ as a literary,
dramatic, or musical work where
(i) the author of which is a citizen of India; or

(ii) which is first published in India; or

 (iii) the author of which, in the case of an unpublished work is, at the time
of the making of the book, a citizen of India

Hence, we can presume that works other than Indian Works fall under the
category of Foreign Works. Also, the meaning of ‘Foreign Work’ can be culled
from section 40 of the Act.
Chapter IX deals with International Copyright under sections 40 to 43. In short,
the Act treats the Foreign Works of the countries mentioned in the International
Copyright Order, 1999 as if they were Indian Works, also giving the Central
Government power to restrict the rights of foreign authors under certain
circumstances.

SEC 40 – POWER TO EXTEND COPYRIGHT TO FOREIGN WORKS

This provision of the Copyright Act enables the Central Government to extend
copyright to foreign works by publishing an Order in the Official Gazette. An
essential feature of this provision is that only the countries mentioned in the
Order, which is The International Copyright Order, 1999, can be accorded
copyright in India. The “territories outside India” mentioned in subsections of
this section must be included in the International Copyright Order of 1999.
Hence countries which do not find their names in the International Copyright
Order, 1999 cannot claim copyright for their works in India. The Central
Government can extend any or all provisions of the Copyright Act to the works
falling under the following categories, thus treating them in a manner as if they
were Indian Works.
(a) Works published in any territory outside India to be treated in a
manner as if they were first published in India

(b) Unpublished works whose authors at the time of making the work were
subjects or citizens of a foreign country to be treated in a manner as if the
authors were Indian citizens.

(c) With respect to the domicile of an author in any territory outside India,
the Copyright Act will apply to him as if his domicile were in India

(d) Any work whose author at the date of the first publication of the work
was a subject or citizen of a foreign country, or who was dead at the time of
the first publication and a subject or citizen of a foreign country, the
Copyright Act will apply to him as if he were an Indian citizen at that date
or time.
PROVISO TO SECTION 40 OF THE COPYRIGHT ACT OF 1957

However, the proviso to this section dictates that before adding a country (other
than those countries with which India has entered into a Treaty or which is a
party to a Convention to which India is a party too) to the International
Copyright Order, 1999 or any other Order made under this section, the Central
Government should make sure that the concerned country has made or
undertaken to make provisions for the protection, in that country, of the works
entitled to copyright under the provisions in the Copyright Act of 1957, in other
words, the concerned foreign country should accord protection to works of
Indian authors.

The term of copyright protection in India shall not exceed the term of
protection accorded in the country of origin of the foreign work. Also, the
term of protection accorded by the foreign country should not exceed the
term of protection accorded by India.

The enjoyment of the rights accorded by the Copyright Act of 1957 shall be
subject to the fulfilment of the formalities and conditions prescribed by the
International Copyright Order, 1999. Also, the International Copyright Order
may provide that the whole of the Copyright Act, 1957 or any part of it shall not
apply to foreign works made before the commencement of the Order or the
Copyright Act; or to works first published before the commencement of the
Order.

SECTION 40A – APPLICATION OF CHAPTER VIII TO

BROADCASTING ORGANISATIONS AND PERFORMERS

This provision empowers the Central Government to extend the rights under
Chapter VIII to broadcasts and performances of foreign countries if it is
satisfied that such country has made or undertaken to make the necessary
provisions for the protection of rights in that country, as it is available in India
under the Copyright Act of 1957. The Central Government can extend the rights
of Broadcasting Organizations conferred under Chapter VIII of the Copyright
Act, 1957
(a) To Broadcasting organizations whose headquarters is situated in a
country which is included in the International Copyright Order, 1999 or
the broadcast was transmitted from a transmitter situated in a country
included in the Order, as if the headquarters of such organization were
situated in India or such broadcast was transmitted from a transmitter
situated in India
(b) To performances that took place in a territory outside India in a
manner as if they took place in India

(c) To performances that are incorporated in a sound recording that was

published in a country included in the Order as if it were published in
India

(d) To performances not fixed on a sound recording broadcast by a

broadcasting organization whose headquarters is located in a country
which is included in the Order as if the headquarters were situated in India
or where the broadcast is transmitted from a transmitter situated in a
country which is included in the Order as if such broadcast was
transmitted from India

This section also empowers the International Copyright Order to apply Chapter
VIII either fully or in part to the foreign broadcasts or performances; to
generally or to classes of broadcasts or performances. The term of the rights of
the broadcast organizations and performers in India should not, however,
exceed the term of rights accorded by the country of origin of the foreign work,
provided it does not exceed the period provided in the Copyright Act of 1957.
The enjoyment of the rights under Chapter VIII shall be subject to the fulfilment
of the formalities and conditions specified in the Order. Chapter VIII does not
extend to any performances or broadcasts made before the commencement of
the Order.

SECTION 41 – EXISTENCE OF COPYRIGHT THROUGHOUT INDIA

According to this section, copyright in a foreign work would exist throughout
India where

(a) A (foreign) work is made or first published by or under the direction or

control of any organization and

(b) There is no copyright in the work in India at the time of the first publication
of the work and

(c) Either, the work is published in pursuance of an agreement in that behalf

with the author where the agreement does not reserve to the author the
copyright in the work (or) under section 17, which deals with the concept of
First Owner of Copyright, any copyright in the work would belong to the
organization.

Any international organization which at the material time did not have the legal
capacity of a body corporate shall have and deemed at all material times to have
had the legal capacity of a body corporate for the purpose of holding, dealing
with, and enforcing copyright and in relation to all legal proceedings related to
copyright. The organizations which come under this section are those
organizations which are included in the International Copyright Order, 1999.

SECTION 42, 42A AND 43 – POWER OF CENTRAL GOVERNMENT

TO RESTRICT THE RIGHTS OF FOREIGN WORKS

Section 42 empowers the Central Government to retract or restrict the rights of

such foreign works, whose authors are not Indian and not domiciled in India,
first published in India when it feels that the concerned country has not
reciprocated the protection given by the Indian government by not giving
adequate protection to the works of Indian authors.
This is an important provision in terms of diplomacy and international trade as
protection is given to certain intellectual properties on a reciprocal basis. This
provision serves as a safeguard to protect the interest of Indian authors and their
works internationally.

Section 42A is similar to section 42 but applies to foreign broadcasting

organizations and performers which are incorporated in such foreign country or
are subjects or citizens of such foreign country and not domiciled in India.
Section 43 dictates that every Order made by the Central Government under
Chapter VIII should be laid before both the Houses of the Parliament as soon as
it is made, and shall be subject to the modifications the Parliament may make
during that session or the session immediately following.

SUMMARY
Copyright protection of foreign works in India is achieved through Chapter IX
of the Copyright Act, 1957 and the International Copyright Order, 1999. Only
the countries mentioned in the Schedule of the International Copyright Order,
1999 are eligible to avail the copyright protection and it is deemed to exist
throughout the territory of India. This protection accorded by the Indian
Government is dependent on the protection accorded by the concerned foreign
country to the works of Indian authors. Hence the Copyright Act, 1957
empowers the Central Government to retract any protection or right extended to
a foreign work if it is not satisfied that the country of origin of such foreign
work has not taken enough steps to protect the works of Indian authors. The
foreign works are treated as if they are Indian works. Also, the term of
protection accorded in India shall be the same extended to Indian Works and
should not exceed the term of protection accorded in the country of origin. This
is in consonance with the Principle of National Treatment.