COPYRIGHTS

This wasn’t taken care of an Industrial Property right in the Paris Convention. It was 1st taken
care of in the Bern Convention on Rights relating to Literary & Artistic Works. Hence, it isn’t
considered as an Industrial Property Right.

Not attached to any industrial activity.

For every creative work you create, the work becomes automatically protected through
copyright, whether you want to commercialise it or not.

Copyright protection shall not be subject to any formality, including registration – Bern
convention.

If creation of works is not subject to any agreement where terms & conditions are already fixed,
usually author of the copyrighted work becomes copyright owner as well.

What is protected under copyright law?

Works of copyright authors. These works are categorically listed under Sec 2(y) of Copyrights
Act, 1957. 4

Why amendments made in the 1957 Act? To reflect the Intl envt changes including the:

Ø TRIPS
Ø WIPO Copyright Treaty – to address challenges faced by copyrights in the digital
world.
Ø WIPO Performers Right Treaty*

Section 2(y):

(y) “work” means any of the following works, namely:—

(i) a literary, dramatic, musical or artistic work;

(ii) a cinematograph film;

(iii) a [sound recording];

Artistic work means: section 2 (c) “artistic work” means,—

(i) 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;
(ii) (ii) a [work of architecture]; and
(iii) (iii) any other work of artistic craftsmanship;

Over these works, someone can enjoy copyright.

Who is a copyright owner?

S. 17: First owner of copyright.— Subject to the provisions of this Act, the author of a work
shall be the first owner of the copyright therein

Under ordinary circumstances, author of a work shall be the 1st owner of the copyright – I
automatically will become the copyright owner.

There are also circumstances wherein copyright work’s author and copyright owner are
different. For example, if there is an arrangement/contract to the contrary – generally regulated
through contracts to this effect. Such circumstances are listed out u/s 17.

For example, employment relation in a newspaper, magazine, in case of Govt work (in the
absence of any agreement to the contrary) etc.

Section 14- what rights shall come under copyright. Thus, copyright is a bundle of rights.

For example, Chetan Bhagat transferred one of the copyrights, the right to make a
cinematographic film another person. But Chetan Bhagat always have moral rights reserved
with him – Once an author, always an author. He can part only with economic rights, not the
moral rights. {cannot distort the author’s work without the author’s consent}

Rights of copyright author Rights of copyright owner

Moral rights Economic rights

All further commercialization of the work will happen from the end of the copyright owner but
he shall safeguard the integrity of the work.

Idea -Expression Dichotomy:

Before I had formalized my idea into action, someone else expressed it (tangible for
perception). Only once it is expressed, we can say that the artistic work is in existence. Are we
protecting the idea or the expression? We are protecting the expression.

(the actual painting/ poetry/ photograph – and not the idea/theme)

9/04

The underlying theme/ idea behind any story isn’t protected.

When we look at the classes of works protected, some of them need their expression to be able
to accord protection. Example, painting, photographs ------- the very nature requires its
expression in some tangible form for protection.

Law hasn’t necessarily mandated fixation of works in a permanent format. For example, design
of even a temporary tattoo can be protected.

Dramatic work necessitates requirement of fixation in writing ---- sec 2(h)

Section 2(h): “dramatic work” includes any piece for recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing
or otherwise but does not include a cinematograph film.

Today, we have recordings, and clips but at that point of time of drafting the legislation, there
was no such facility available to preserve the proof of such creation when performed (unless
there is fixation in writing).

If there is no requirement of fixation in permanent format, how do we give copyright?

No single idea can be given monopoly --- ideas cannot be monopolized but only expressions
can.

Case laws which state only expression in some tangible form can be monopolised through
copyright and not mere ideas:

Ø Eastern Book Company v D. B Modak

EBC- makes judgements more reader friendly – break into paragraphs, gist, header etc. The
idea of restructuring and modifying judgements for making it reader friendly. Defendants also
started doing the same.

Defendants weren’t restrained from relying on original judgement and bettering it for user
experience – bettering the judgement to make it reader friendly, I wasn’t this idea of structuring
that was subject to monopoly. Problem lies in the expression of judgements by defendant.

Court: Defendant is free to do the same independently. No original judgement from any Court
of Law can be copyrighted – neither can any public document. The revised format of judgement
– to the extent of direct quotations from judgement, plaintiff cannot claim copyright. However,
any value addition to the original judgements, their own inputs, to make it user friendly, and
restructuring it in that specific manner is protected.

Idea of structuring isn’t protected but actual inputs made by plaintiff is.
 Ø R. G Anand v Delux Films:

Classical & landmark case in copyright law which clarifies idea-expression dichotomy.

R.G Anand had written a dramatic script, which was reduced into writing, as mandated by law.
Delux Films wanted to covert it into film, and movie was made. Plaintiff had disclosed the
script to Delux Films – it was just a consultation.

Defendant launched the film based on the same storyline of the script without plaintiff’s
consent.

Plaintiff: Script + idea

Defendant: Cinematography + idea

The fact that both have a similar idea is immaterial. Idea isn’t protected. Idea/ Theme might be
common to a lot of works. Only if the expression is substantially similar, there exists a
copyright infringement.

Factors considered by Court:

Ø Whether there is substantial similarity or not

Ø Access by defendant to plaintiff’s work – in this case, yes
Ø Would a 3rd person be able to identify the commonalities if 2 works are handed over tot
him – whether commonalities is more than differences
Ø Whether there are significant additions which change the overall general impression in
the final expressions?

Because the expressions don’t match and there are more differences/dissimilarities than
commonalities, a case of copyright infringement wasn’t made out.

10/04/2024

s. 2(d): defines author

• Literary or dramatic work – author of the work. A number of stakeholders when a

literary work is published – to specify clearly – author of work
• Musical work – composer {many stakeholders – but it’s the composer who is deemed
the author}
• Any work possessing artistic quality, other than photograph – artist
• Architecture –
• Photograph – person taking the photograph
 • Cinematographic film or sound recording – producer
• Computer generated work – person who causes the work to be created.

s. 2(z): joint authorship – collaboration of one or more authors where contribution of one author
isn’t distinguished from the other – it’s an absolute blend of work. Contribution of one author
isn’t distinct from the contribution of another author. When the work is so blended to the extent
that they cannot be separated from each other.

[co-author and joint authorship is diff]

Unless there is an agreement to the contrary

Agreement, policy, or undertaking regulates copyright.

There is a possibility for you to enjoy trademark and copyright together.

There is also a possibility of overlap b/w design & copyright: Over artistic works/creations
over which you can claim design right.

This artistic work can acquire industrial property by claiming TM or design right. Remaining
is purely creative work.

As long as it is purely under creative ambit, it is protected under copyright. When it acquires a
design right and thus, an industrial property, it becomes protected under Design Act.

Design law: what it protects & duration (get this part) No criminal remedies in case of
infringement of design right – only civil remedies.

If you don’t want to use the artistic work as design for articles, you need not register it for
design right, under Designs Act.

Duration of copyright: Lifetime of author + 50/60 years

Copyright is usually preferred over design because: longer duration, more choices of
enforcement, more stringent protection.

Sec 15(2): overlap b/w copyright and design act. Protection under 15(2) will cease to exist if
more than 50 articles are manufactured/produced (If you wanted to exploit it industrially more
than creativity, you would have gone for design right. If you want mass industrial production,
go for design right]

Tarun Tahiliani v Rajesh Masrani: clarify operation of 15(2). TT designed expensive limited
edition lehengas – decided to manufacture only 20 of them. Respondent selling the copy in
Chandhi Chowk. TT claimed copyright infringement. Respondent claimed – creation itself was
for application to articles & not purely under creation ambit. There is no requirement of formal
registration to bring an action of overlap u/s 15(2) and you can enforcement your right through
15(2).

12/04/2024

REQUIREMENT OF PROTECTION

Sec 2(y) specify the works which get copyright protection.

Literary works: anything written, like a book, poem etc. But if we look at the definition
provided u/s 2(o) - “literary work” includes computer programmes, tables and compilations
including computer 4 [databases];

It includes computer programmes, tables etc apart from traditional works, under the scope of
literary work.

Sec 3(k) of Patents Act talk about computer programmes. There are parts of computer
programmes which get protection under patents act and parts which find protection under
copyrights act.

The programming behind the software gets protection which includes the source code and
object codes.

Databases:

Sec 2(h): “dramatic work”

Sec 2(p): “musical work”

Sec 2(xx): “sound recording”

Sec 2(f):

18/04

Section 13 of the Copyright Act – requirements for enjoying copyrights.

Requirement for originality – originality of works is protected under copyrights so that they
are not adapted, translated, reproduced etc. (mentioned in s. 14)
The structure of section 14 provides a list for different types of art, and they are mostly similar
in nature, the difference being due to the commercial nature of the art. In most clauses common
rights are given. Communication to the public is one such right.

Economic rights under s. 14 are a bundle of rights. Different natured activities can be taken in
line of commercialisation. These bundles of rights are subjected to the work itself. What the
work is shall define what the rights are going to be. The work must meet certain thresholds for
the work to receive copyright.

s. 17 – the author of the work shall be the first copyright holder. As per the expression of s. 17,
this is always the general rule. If the person chooses to, they can pass over the copyright to
another person.

s. 13

- territorial application

- original: the determination of originality is not provided in the act. This would require some
amount of creative input. There would be multiple facets that come into play to determine
originality.

Three tests for the same

1. The doctrine of Sweat and Brow/ sweat of the brow

There might be work which is similar/inspired by other work. If there is some input (primarily
your labour), the work would be considered as your original work. (University of London Press
vs University of Tutorial Press). The case was regarding question papers of 2 colleges.

The copyright does not need the expression to be absolutely novel or original. It does however
require that the work should not be copied from another work. It must originate from the author
and similarity of the work with others does not preclude enjoyment of copyright.
Origination of the work from the author is only one aspect in the copyright. Additionally, it is
his hard work that contributes to the copyright.

Walter vs Lane

A person gave a speech and a newspaper journal produces it verbatim. Every expression would
be unique, every person would have put in their own labour and hard work, which would
amount to a valid copyright protection.

This standard has been considered to be very low due to it being very manual in nature.

2. Modicum of Creativity Test (Easter Book vs DB Modak)

One needs to have some tangible form of creativity, so that the previous work and the borrowed
work has some difference. If there is a creative input that has gone into it while refurbishing
the work, then it would be copyrighted.

If there have been substantive changes made in the structure, briefs have been created, headings
etc. have been changed, from the original work; this would amount to the present work getting
protected.

3. The test of Skill and Judgement

If there is a phone book and someone makes a newer version of it, can it be copyrighted:

Time and energy + creativity (changing the structure, making a table etc.) + skill (filtering,
making it accessible, remove irrelevant data).

This compilation would have the protection of copyright, since independent skill and
judgement has gone into it.

Najma Heptulla vs Orient Longman Ltd.

Someone narrated a story and the other person wrote it down. This brought in the concept of
joint ownership, because the 2 forms of art were so separable from each other (doctrine of
merger).

Does such work enjoy originality?

The author had a lot of information, they reduced it to a structured format, arrange the sequence
for the ordinary reader to understand the flow of the narration etc.

Section 13(2) – territorial nexus requirement

This shall only be extended and applied in India.

- In case of a published work – should be published in India. If it is outside India, the

person should be a citizen, the author if dead, should have been a citizen of the country
at the time of his death.
- Unpublished works – during the making of the work is a citizen or domiciled in India.

19/04

19th April, 2024

Section 17 – First owner of CR

• Determines who owns the copyright – it is the first author who owns the CR but there
can always be exceptions as provided in the section.

• It has a general clause “subject to an agreement to the contrary” – this is what is

important – all CR rights are essentially dependent upon agreements – it is the parties
of the agreement who determine the terms of the agreement – are you a freelancer or a
fixed employee? Is it fixed remuneration or a monthly salary? Etc. etc.

Firstly apply the agreement, if not, secondly apply the provisos to the section, and thirdly,
you apply the general rule of the author being the first owner of CR.
 • For clause (a), the work has to be of a specific type – (a) 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;

o CR is divided between the actual owner and the proprietor – the proprietor
is the owner of the CR for the purpose of publication of the work arising out of
a contract of service, while for all other purposes, the author himself is the
owner of the CR.

o This is because the work is created from the beginning for the publication of the
work.

• Whether a work of specific task to be performed for specific remuneration would be a

contract of service as per clause (a)? Whether a question paper being made for an
examination would amount to the literary work under clause (a)?

• For such circumstances that seem to fall under this clause but do not really fall within
this for technical purposes, clause (c) applies.

(c) in the case of a work made in the course of the author’s employment under a contract of
service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall,
in the absence of any agreement to the contrary, be the first owner of the copyright therein;

Depending on the underlying work, we are identifying who the author is – in a contract for
service, it is the person creating the work who owns the work, otherwise it is subject to the
agreement.

• Employee-employer relationship has to be established for this clause to apply

• In a case, two professors were commissioned to make QPs for the University of London
– the QPs were published by the defendant’s press with a compilation of the QPs and
criticisms and comments on the QP.
 o The determination of copyrightability was that if you have done it as part of a
Contract of Service, then the employer for whom that work is created owns the
copy and hence the uni should have a claim and not the professors per se – this
is why the uni alsp brought an action of infringement against the defendants –
the court said that the uni should also have a copyright over the QPs because
they employed the professors to make those QPs for them – the term of task
allocation was such that they simply had to make the QP, take the money and
leave – the CR was with the uni only – because an agreement existed also, the
CR existed with the uni – thus, the professors could not claim CR infringement
over the QPs but the university could.

• Clause (b)

(b) subject to the provisions of clause (a), 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;

o They are commissioned works done at the instance of another and for the payment of
valuable consideration – this person paying the money will be the first owner of the CR
due to 1) the payment of remuneration and 2) the work being done at the instance of
this person.

• GeePee Films Pvt. Ltd. v. Pratik Chaudhary and Ors.

o Songs were requested to be created by the defendants who were relatives of

each other – two people were commissioned by the plaintiff to create songs for
a movie and publication in CDs and cassettes - this work was completed.

o But then the plaintiff found that the music was also sold by the defendants
separately in their CDs – the plaintiff claimed CR infringement under clause (c)
– the limited requirement in (c) are met and hence their CR should apply

o The defendants argued that they took the rights to sell the music from the two
people who composed the music – for any such musical work, it should be the
composer who is the owner of the musical work,

o The plaintiffs argued that the “author’s employment” was the relevant portion –
and this was used in a cinematographic work as well, where the author
would be the producer, GeePee Films.
 o The court interpreted the meaning of “producer” as well – to claim the
protection of author must first qualify as producer of the cinematographic work

§ (uu) “producer”, in relation to a cinematograph film or sound

recording, means a person who takes the initiative and responsibility
for making the work;]

§ The court said that GeePee did not qualify for the same since they
did not take the responsibility for making the work, since
“responsibility” were to mean all legal liability related to the work
as well – GeePee did not have such liability according to the court.

o The actual composers were held to be the CR owners of the work – so since the
actual CR owners were the composers of the work and they had authorised the
defendants to publish the music, the court held that this was not a case of CR
infringement.

• VT Thomas v. Malayala Manorama

o A cartoon artists who has made certain characters who is working with a
magazine, then leaves and works as a freelancer, takes on a job somewhere else
and uses those characters there also – the past employer brings an action against
this artist saying that the character was made for the periodical during the course
of his employment as per clause (a)

o But the artist claimed that he was the independent owner since they were
devised much before he entered into the employment with the magazine – they
were specifically redesigned for certain expressions while he worked with them
but for all other purposes, he had independently created those characters – had
those characters been created during the course of employment for the purpose
of publication then maybe the house could claim CR ownership over

o The court said that the expression of the characters before and after the course
of employment, the artist would enjoy rights, but during the course of
employment and because they were created for the purpose of publication,
would belong to the proprietor.

o Thus, the court said that the artist was free to use these characters for any form
of expression since he himself owned the CR.
20th April, 2024

Registration – Chapter X (ss. 44 to 50A)

• In CR, they have placed registration only after talking about rights, acceptance,
infringement etc.

• The procedure for CR is pretty much irrelevant because it is not a bare minimum
requirement for enjoying CR protection over a work – you have CR protection even
without registration – the Berne Convention and TRIPs outrightly say that CR
protection is not to be subject to any formality.

• Ss. 44 to 50A do not really talk about the process involved – most of it is about the
maintenance of the CR Register, when it is to be modified, rectified and amended.

• CR Office is a separate office established by the central government, unlike other IPs –
it has its own Registrar of CRs to whom you have to make the application.

• The process requires an application to be filed – this is absolutely optional because you
have CR over your work even without registration – the registration helps only with
respect to a specific claim to prove that the CR existed on the date being claimed (Anil
Gupta v. Kunal Dasgupta) – this acts as proof that your work came into existence on
the date you are claiming.

• The application has to be made to the Registrar by the

author/owner/publisher/interested party.

• Interested parties include assignees – when you want to assign a CR to a third party

Term of Protection – important (study from ppt)

Published literary, dramatic, musical and artistic Life of author + 60 years

works including photographs – if published within
[Lifetime of the author – not clear
the lifetime of the author - s.22
whether it starts from creation of the
work or the publication of the work – it
 is interpreted as being from the creation
of the work]

Literary, dramatic, musical and artistic works 60 years from the beginning of the
(other than a photograph) which is published calendar year next following the year in
anonymously or pseudonymously which the work is first published

[life of the author is indeterminable here

since we do not know who the author is]

Literary, dramatic, musical and artistic works Life of the author + 60 years
(other than a photograph) which are published
anonymously or pseudonymously where the
identity of the author is disclosed before the expiry
of the above said period.

Posthumous work – unpublished literary, 60 years from the beginning of the

dramatic or musical work or an engraving, in calendar year next following the year in
which CR subsists at the date of the death of the which the work is first published or its
author – s.24 adaptation is published.

Cinematograph films – s.26 60 years from the beginning of the

calendar year next following the year in
which the film is published.

Sound recording – s.27 60 years from the beginning of the

calendar year next following the year in
which the sound recording is published.

Government works – where the government is the 60 years from the beginning of the
author of the CR – s. 28 calendar year next following the year in
which the work is first published.
 [S. 28 – it is required that the government owns the
CR – not that the CR is owned by someone else
even though it is a government work.]

Works of public undertakings – where the public 60 years from the beginning of the
undertaking is the owner of CR – s. 28A calendar year next following the year in
which the work is first published.

Works of international organisations 60 years from the beginning of the

calendar year next following the year in
which the work is first published
[international organisation has to own the work,
not someone else]

If there are two authors, then depending on who dies later, it is that date + 60 years.

Infringement of Copyrights

• If someone has a CR, any unauthorised use of it would amount to infringement of their
CR.

• What amounts to infringement is easier to understand than what does not amount to
copyright.

Section 51

• Sometimes, authorisation from the Registrar and not the author, can be taken for those
cases where a book is required to be adapted in Braille for persons with disabilities.
Thus, the first thing the clause requires is that you take permission for the adaptation of
the work.

• The first act which amounts to infringement is doing anything which would otherwise
have been an exclusive right of the CR owner as per S.14.

• (ii) permits for profit any place to be used for the communication of the work to the
public where such communication constitutes an infringement of the copyright in the
work, unless he was not aware and had no reasonable ground for believing that such
communication to the public would be an infringement of copyright; or]
 o Actual communication or a place for communication being provided also
amounts to infringement.

• Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any
work for the private and domestic use of the importer – de minimis exception – it is
not bulk importing happening, it is just one copy being imported – it is too minimalist
to be viewed from the lens of infringement.

Super Cassettes Industries Limited & Ors. v. Chintamani Rao & Ors– use of musical works
by news channels

• Some pictures, scenes and music from some movies were being used by news channels
– some of the msuciisians brought an action against the news channel for using the
music – the music was not for reporting but it was for a specific programme that was
for commercial exploitation – they were using the plaintiffs works for a commercial
activity for sale

• The court agreed – such use over and above the mere sue of reporting amounts to unfair
use – hence they were injuncting from continuing to use such clips

The Chancellor, Masters, and Scholars of the University of Oxford and Ors. v. Narendra
Publishing House Co. and Ors.

• The QP case – the defendant took the QPs of the University of Oxford and published it
as a step-by-step guide – would this be permitted

• This was technically not for research purposes, it was a guide

• The court identified this as transformative work and not unfair use – there has been a
certain degree of value addition – it was under fair use

The Chancellor, Masters, and Scholars of the University of Oxford and Ors. v. Rameshwari
Photocopy Services

• D Photocopy case – Delhi Uni had this premise where the Delhi School of Economics
operated – the photocopier services operated within premises that were elapsed out to
them.
 • There were readings published by reputed publishers – these were photocopied by the
photocopiers for Rs. 35 and sold to students so they did not have to buy the book –
essentially the sale of intended users was compromised in this case.

• The court held that the reproduction of the whole of the book is unfair, but when
students, researchers and teachers try accessing quality work, they cannot be restricted
from accessing the content merely because of copyright restrictions – the court said that
they can reproduce the relevant portions and photocopy the same

• The teachers and students were not going to buy the books anyway so there is no
prejudice being caused to the commercial interest anyway – this was the reasoning
given.

Indian Performing Rights Society v. Ad Venture Communication India Pvt Ltd.

• IPRS is a copyright society under the CR Act – it is a rights management society which
claims authorisation form the owners to licence their copyright to people who wish to
use their works

• These societies enable the channel between the owners and users – if you are a hotelier
and want to use music 24/7 in their hotel, you will approach the society for permission
and licence in lieu of a licensing fee

• The court said that if you profit, you pay a lciense, if you do not profit, you do not
have to pay a licence.

• In this case, no authorisation was taken from the society who was the sole authoriser
for that particular musical work

• The court looked into whether this could be exempted from liability under s.52 clauses
– for fair use, the factors on the basis of which this doctrine has been evolve needs to
be looked into – the court looked at foreign jurisdictions and looked at the four factor
test:

o Some manners of dealings with the work may be fair – the difference lies in
judicial and administrative approach

o In India there is a list, but in the US there is no such list

o In India, the fair dealing test has influenced the structure of S.14

o The four factor test is:

 1. The purpose of use – personal reference, R&D, teaching etc. – if no
commercial benefit then no copyright infringement.

2. The nature of work being made use of – in some cases, the work may
have been made freely available, or may have fallen in the public domain
after the expiry of copyright.

3. The quantity of the work being reproduced – reproducing the entire

work as opposed to specific portions of the work being reproduced – the
latter is fair use, while the former is not

4. The effect of the use of the work on the original work – is the work
being created by you competing with the original work? will it put the
original work in a bad light?

o These four factors were affirmed in the IPRS case.