CHAPTER VI

INTELLECTUAL PROPERTY RIGHTS IN

COPYRIGHTS

6.1. Rights conferred by copyright:

According to Black’s Law Dictionary Copyright means that right which is literary

property recognised and sanctioned as per positive law. An author or originator

gets intangible and incorporeal right on certain literary or artistic production for

specified period. And

According to Oxford English Dictionary Copyright is an exclusive right for

certain term to an author, composer for print, publish and sell copies of his

original work.

The copyright confers following rights

1) Statutory Rights

2) Negative Rights

3) Multiple Rights

4) Economic Rights

5) Moral Rights

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1) Statutory Right:-

The copyright in a work is a creation of statute. A person owns a copyright

because the law recognizes the existence of such a right. The rights, which an

author of a work has by virtue of creating the work, are well defined.

2) Negative Right:-

Copyright is a negative right in the sense that it stops others from exploiting

the work of the author for their own benefit without the consent or the license

of the author.

3) Multiple Rights:-

A copyright is not a single right, but a bundle of rights, which can exist and be

exploited independently. The nature of these multiple rights depends upon the

categories of works, namely, literary, dramatic and musical works; original

artistic works; cinematograph films; and sound recording.

4) Economic Rights:-

The rights conferred on a copyright owner are economic rights because the

exploitation of the work by exercising these rights may bring economic

benefit. The author may exploit the work himself or licence others to exploit

any one or more of the rights for a consideration, which may be in the form of

royalty lump sum payment.

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 5) Moral Rights:-

The copyright consist moral rights on the author. Whether the moral rights are

not statutorily defined it includes following right.

i) The right to decide whether to publish or not to publish the work, i.e.

right to publication.

ii) The right to get authorship of a published or exhibited work.

iii) The right to prevent alteration or other actions that may damage the

author’s honour or reputation, i.e. the right of integrity.

These moral rights are recognized as “Author’s Special Rights”.

6.2. Ownership of Copyrights:-

In ancient India there were many creative minded persons like artist,

musicians and writers create their works for earning money and survive in

the society. At that that time there was not any question of copyright

protection, but after the development in the printing press and type writer

machines the question of copyright protection arose and also need arose to

make Copyright laws for India.

In the last 40 years because of tremendous development in the

communication sector such as television, broadcasting and photography

Indian economy increased in the international level and also require

development in the related laws copyright is one of them.

In Indian Copyright law the ownership for various works in copyright is as under

“Author” means

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 i) In the matter of a literary or dramatic work the author of the work.

ii) In the matter of a musical work, the composer.

iii) In the matter of an artistic work other than a photograph, the

producer and

iv) In the matter of a photograph, the person taking the photograph

v) In the matter of a cinematograph film or sound recording, the

producer and

vi) In the matter of any literary, dramatic, musical or artistic work,

which is, computer generated the person who causes the work to be

created.

Rights of Copyright holder in India:

i) For the purpose of produce the work in any material from including

the storing of it in any medium by electronic means.

ii) For the purpose of issue copies of the work to public not being

already in circulation

iii) For the purpose of perform the work in public or communicate it to

the public.

iv) For the purpose of make any cinematographic film or sound

recording in respect of the work.

v) For the purpose of make any translation of the work.

vi) For the purpose of make any adaptation of the work.

vii) For the purpose of a computer program, to sell or give on

commercial rental or offer for sale or for commercial rental any

copy of the computer program.

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6.3. Infringement of Copyright:-

In Indian Copyright Law Various circumstances provided upon which

registered Copyright is infringed and Indian Laws relating to Copyright

also provides e three types of remedies against infringement of copyright;

namely, civil, criminal and administrative. Any person can use copyright

work for specific purposes but he has to take care how it will not cause an

infringement.

6.3.1. Definition of Infringement- section 51

Copyright in any work is deemed to be infringed,

a) When any person without a licence from the owner of the copyright, or

the Registrar of copyright, or in contravention of the conditions of a

licence granted or any condition imposed by a competent authority

under the Act:

i) Does anything ,the exclusive right to do which is conferred upon

the owner of the copyright, or

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

b) Where a person ,

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 i) Makes for sale or hire, or sell or lets for hire or by way of trade

displays or offers for sale or hire any infringing copies of the

work, or

ii) Distributes, either for the purpose of trade or to such an extent

as to effect prejudicially the owner of the copyright, any

infringing copies of the wok, or

iii) Exhibits to public by way of trade any infringing copies of the

work, or

iv) Imports into India any infringing copies of the work except one

copy of any work, for the private and domestic use of the

importer.

The reproduction of a literary, dramatic, musical or artistic

work in the form of a cinematograph film will be deemed to be

an infringing copy.

In general it is the commercial exploitation of the work in any

form by a person without authority that constitutes

infringement.

6.3.2. Infringing copy- definition –sec.2 (m):-

Infringing copy means:

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6.3.2. Infringing copy- definition –sec.2 (m):-

Infringing copy means:

thereof otherwise than in the form of a cinematograph film.

1) In relation to a cinematograph film, a copy of the film or a record embodying

the recording of any part of the sound track associated with the film.

2) In relation to a sound recording, any such recording embodying the same

sound recording; and

3) In relation to a programme in which a broadcast reproduction right subsists

under section 37, a sound recording of the programme.

The import of one copy of any work for the private and domestic use of the

importer is permitted.

6.3.3. Essential ingredients of infringement:-

According to nature of copyright work an essentials for infringement can be

summarize as under:

1) There must be Reproduction of the work in a material form,

2) There must be Publication of the work,

3) There must be Communication of the work to the public,

4) There must be Performance of the work in public,

5) There must be making of adaptations and translations of the work and

doing any of the above acts in relation to a substantial part of the work.

Infringement of copyright cannot be avoided by a difference in

dimensions or inexact reproductions, if a substantial part of the work has

been copied.

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 In reality there is no evidence in infringement of copyright at that time

the offence of infringement is decide on the basis of circumstances. There is need

of direct evidence in any type of offence to prove it. But circumstances of the act

are amount to infringement of copyright if that act is committed with guilty

intention. In the case of infringement of literary works the defendants work

containing the same errors as in the plaintiff’s work, similarity in language and

idiosyncrasies in style may constitute some evidence of copying.

6.3.4. Proposition relating to infringement:-

In Anand v. Deluxe Films142 The Supreme Court of India consider various cases

from western country and American court and thereafter decide following

propositions for act of infringement.

According to supreme court of India the copyright is not only for idea, there

should be any subject matter in any forms like books ,recordings etc and use of

that books ,recordings by other person without the consent of original author the

and then only it amounts to infringement of copyright.

Supreme court also observed if any same idea is developed between the mind of

more than one person and if it manifest in common manner the question arise how

to protect the interest of the both the persons. At that time court use various

methods according to judicial discretion and substantial content of the original

work.

142
AIR 1978 SC1613

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And to prove the infringement, the plaintiff has to show the pirated copies made

by the defendant. The pirated copies are effective evidence in case of giving the

punishment to the infringer.

According to supreme court of India One of the surest and safest tests to

determine whether an infringement is committed or not committed by the

infringer is view all the contents or material object made by the infringer and his

intention behind making of such material. Whether such material is similar or

likely similar with the original work then definitely it can be easily assessed the

infringement committed and infringer is liable for punishment. And his infringed

material liable for seize.

But the idea is similar of more than one person and it manifested in different

manner and in different material then court have to give the benefits to all the

parties and declare such same idea if manifested in different manner is not amount

to infringement.

But the supreme court also observed that Where ideas is similar and there is

coincidence in the manifestation then check the intention of both the parties and

thereafter decide the act of both parties is infringement or not.

The act of infringement is like the piracy act and it must be proved by the direct

and substantial evidence the court can apply different tests for determination.

When the question arose as to violation of the copyright at stage play by a film

producer or a director at that time the task of the plaintiff becomes more difficult

to prove piracy. In this circumstances judiciary can use various tests for

determination of such use of film and drama is actual violates the rights of

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original author .moreover it is need of hour in the competition of film producers,

artists and stage players to take care of original works and creative works of the

author. For this purpose the judiciary can prescribe some specific manner to deal

with the infringement cases relating to films, music, drama, and stage players etc.

In case of any activity of infringement comes in to the exceptions such activity is

infringement or not it has to be determine on the basis of merit of the case. In

prevailing law statutory exceptions provided for act of infringement its object may

be public interest and knowledge to new generation of the culture an history of

India.

In Copyright law 3 types of remedies provided against infringement of copyright

they are civil, criminal and Administrative. 143 Civil remedies enforce by way of

injunction, accounts of profits, delivery of infringing copies and damages for

conversion.

According to criminal remedy the infringer is liable for the imprisonment or fine

or both seizure of infringing copies and delivering them to the owner of the

copyright.

According to Administrative remedies owner can enforce his rights by moving

the Registrar of the Copyright to impose a ban on the import or the infringing

copies into India.

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Law Relating To Intellectual Property Rights:Dr.V.K.Ahuja;Lexis Nexis Edn.2007 Page no.173

152
 6.4. Remedies against copyright infringement:-

If the creative artistic work of an artist is protected by the copyright, then only

an artist of that creative work can sell or reproduce the copies of his creative

work, but other than him if any person try to sell or publish his work without his

permission it liable for action as owner of that work can use civil and criminal

remedies against the infringer.

6.4.1. Civil remedies:-

Indian Copyright law is provide the Civil remedies against the infringement of

Copyright, the Court of law can impose restriction and ban on use of original

Copyright work by way of passing the decree and orders under its civil

jurisdiction.

Civil remedies includes protection of separate rights, protection of authors special

rights, rights against the persons who possess or dealing with infringing copies.

In the suit for infringement of Copyright in appropriate cases, the court may grant

authority to the parties along with his advocate to enter the defendant’s premises

and inspect for any infringement and remove that types of copies without the

knowledge of the defendant. This is require for prevent any type of destruction of

evidence. But, this remedy is available only in rare cases and only after the court

is satisfied that it is necessary in the interest of justice. The plaintiff also has to be

very particular and thorough in his application if he were to avail of this remedy.

A suit for Copyright infringement can be filed in the District Court within the

local limits of which one of the plaintiffs is residing, irrespective of where the

defendant lives there.

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6.4.2. Criminal Remedies:-

Indian Copyright law is provide the Criminal remedies against the infringement of

Copyright, the Court of law can impose strict Punishment on infringer and ban on

use of original Copyright work by way of passing the orders under its criminal

jurisdiction.

Criminal remedies includes infringement of copyright and any other rights

conferred by the Copyright law, more punishment in second

convinction,intentional use of infringing copy for computer programme, power of

police officer to seize infringing copies.

According to Indian Copyright Law offence of infringement is punishable up to

period seven days to 3 years and a fine between Rs.50,000/- to Rs.2,00,000/-

(depending on the facts and circumstances of the case)

In Indian Copyright law also provides Enhanced punishment is for second and

subsequent convictions and the minimum sentence is 1 year and minimum fine is

Rs.1,00,000/- in infringement cases.

In Criminal remedy Judicial Magistrate First Class and Metropolitan Magistrate

can adjudicate the complaint and the Officer in charge of Police Station who is

above the rank of Sub-Inspector can seize the infringed copies of Copyright work.

If the offence of infringement is committed by the company at that time it is duty

of court to lift the corporate veil and find out who is responsible for act of

infringement and liable for punishment.

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It should also be noted that all infringing copies and all equipments used for

making these copies are deemed to be the property of the owner of the Copyright

and this may be delivered to him.

6.4.3. Administrative Remedies:-

In Administrative remedies power is given to the Registrar of Copyright for ban

on the import of infringing copies in India.

Apart from the remedies against infringement of copyright the copyright Act

provides for the protection of certain special rights :( moral rights)

6.4.4. Factors considered for Infringement of Copyright:-

In Intellectual Property by W.R.Cornish, 5th Ed., 2003, the author has considered

various factors involved in the determination of infringement of copyrights as

follows:

1) Copying

 causal connection

 Subconscious copying

 Indirect copying

2) Substantial taking

a) Unaltered copying

b) Extent of defendant’s alteration

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c) Character of plaintiffs and defendants works

d) Nature of plaintiff’s effort

e) Extent of plaintiff’s effort

f) Manner in which defendant has taken advantage of plaintiffs work

g) Extent of interference with plaintiff’s exploitation by defendants act

h) Reproduction by the original author.

To prove infringement the requirement is that infringing work similar with the

original work and its use like the original work.

According to circumstance the act of infringement is determined by the way of

comparison of original copy and infringed copy and assessment of part of both

copy and whole part of both copies. Apart from identity and similarity the

judiciary can apply its judicial mind for pass appropriate order and to give justice

in the case.

Plagiarism is not considered infringement of copyright .thus if a film producer

makes use of ideas.

If the similarity between the works is solely due to coincidence, for example,

photographs of an object taken by two persons from the same position and angle

there is no infringement.

There is no infringement if what a person has taken is only the essential idea of

the work, even if it is highly original provided he has given expression to that idea

in his own way.

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Plaintiff has to prove following things for action of Infringement:

1) That there is close similarity between the two works,

2) That the defendant has directly or indirectly mad an unlawful use of the

plaintiffs work,

3) That there is a chain of causation linking the plaintiffs copyright work with the

defendants alleged infringing copy, and

4) The defendant had access to the plaintiffs work or an infringing copy of the

work.

Causal connection:-

There must be some casual connection between the original work and the alleged

infringing copy apart from sufficient degree of objective similarity between the

two works. Any substantial material or object is a prima facie evidence for treat

the act of infringement.

Bootlegging:-

Unauthorised recording of live performance is called bootlegging. The Copyright

Act does not provide a remedy against bootlegging since there is no copyright in a

live performance. However the present Act provides certain special rights to

performers called performers right to prevent bootlegging.

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Adaptation of original work:-

In the case of literary, dramatic, musical or artistic work in which copyright

subsists, to make any adaptation of the work without the consent of the owner of

the copyright amounts to an infringement.

Importation of infringing copies:-

Importation of infringing copies into India is an act of infringement. But

importing one copy of the work for the private and domestic use of the improper

is allowed. This exception does not apply to import of cinematograph film or

records. Thus importing even a single copy of video cassette or a musical record

or cassette is an infringement of the copyright in the work.

Importation into India of copies of books lawfully published in a foreign country

for the purpose of trade will constitute infringement. In case of infringed copies

import in India from the other countries is also an act of infringement.

6.4.5. Authorisation of infringement:-

There is no express provision under the Copyright Act, 1957 to the effect that a

person who authorises another to carry out an infringement is himself an infringer.

However under s.14 “to authorise the doing of any of the acts” referred to therein

is itself one of the rights of the copyright owner. Accordingly a person who

authorises another to commit infringement himself commits an infringement.144

“Authorisation’ means sanction, approval or countenance”. It can also mean

permit. Anyone who sanction, approves or countenance an infringement may be

144
Sec.14 of Copyright Act,1957

158
liable. in case of no ill intention of the person of production of similar copies of

original work it will amount to authorisation of that similar copies. men’s rea is

applicable for determine the infringement and authorisation of the original works.

The tort of authorising a breach of copyright is not complete until the breach

which has been authorised has been committed.

A person who supplies machines (e.g. cassette recorder) which can be used by the

purchaser for infringing sound recording or tape cannot be said to authorise acts

of infringement.

Organisers of public entertainments:-

If public entertainments are organised by hiring musician’s as independent

contractors the organisers may be deemed to be authorising or permitting

infringement if they leave the choice of music to the musicians. They should

either obtain an appropriate licence or require the musicians to obtain the same.

Where the defendant is only the owner of the hall and not the organiser of the

entertainment he may not be held to have authorised infringement if he was

simply “indifferent” to the choice of music. Under the U.K. law the occupier of

premises who provides receiving equipments for broadcasts or diffusion or

apparatus for playing records is treated as causing the subject-matter to be heard

or seen in public and thus infringing the copyright in the records.

A dealer, who has placed orders with a manufacturer for the supply of a quantity

of a particular article which was manufactured and supplied to him, has authorised

their manufacturer and accordingly authorised infringement of copyright in the

drawings of the article.

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6.4.6. Acts not constituting Infringements- statutory exceptions:-

The copyright Act provides certain exceptions to infringement. It can be used by

defendant as defences.

According to Section 52 of Copyright Act certain provisions about which acts do

not constitutes infringement of copyright. They are as under

 a fair dealing with any work, not being a computer programme, for the

purposes of private or personal use including research, criticism or review,

making copies of computer programme for certain purposes, reporting of

current events and current affairs, including the reporting of a lecture

delivered in public.

 The storing of any work in any electronic medium for the purposes mentioned

in this clause, including the incidental storage of any computer programme

which is not itself an infringing copy for the computer programme which is

not itself an infringing copy for the said purposes, shall not constitute

infringement of copyright.

 Reproduction for judicial proceedings and reports thereof, reproduction

exclusively for the use of members of legislature, reproduction (artistic work

excluded) in a certified copy made or supplied in accordance with law.

 Reading or recitation in public of extracts (literary or dramatic work).

 Publication in a collection from the use of educational institutions in certain

circumstances.

 Reproduction by teacher or pupil in the course of instructions or in question

papers.

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 Performance in the course of the activities of educational institutions in certain

circumstances.

 The making of sound recording under certain circumstances subject to certain

conditions.

 The causing of a sound recording to be heard in public by utilising it in an

enclosed room or in clubs in certain circumstances.

 Performance in an amateur club given to a non-paying audience or for

religious institutions.

 Reproduction in newspaper and magazine of an article on current economic,

political, social or religious topics in certain circumstances.

 Publication in newspapers or magazines a report of a lecture delivered in

public.

 Making a maximum of 3 copies for the use of a public library.

 Reproduction of unpublished work kept in a museum or library for the

purpose of study or research.

 Reproduction or publication of any matter published in official Gazette or

reports of Government commission or other bodies appointed by Government.

 Reproduction of any judgment or order of court, tribunal or other judicial

authority not prohibited from publication.

 Production or publication of a translation of Acts of Legislature or rules.

 Making or publishing of a painting, drawing or photographs of a work of

architecture.

 Making or publishing of a painting, drawings or photographs or engraving of

sculpture or other artistic work permanently situated in a public place.

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 Inclusion in a cinematograph film of any artistic work permanently situated in

a public place and other artistic work by way of background or incidental to

the principal matter represented in the film.

6.5. Infringement of Literary, Dramatic or Musical Works:

If a person without the consent or licence of the owner of the copyright does

or authorise the doing of any of the following acts, he will be guilty of

infringement of the copyright in the work.

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;

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 3) To perform the work in public or communicating it to the public;

4) To make any cinematograph 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 cls.(1) to (6);

8) To make infringing copies of the work for sale or for hire or sells or lets

for hire or display or offers for sale or hire infringing copies or;

9) in respect of a computer programme which is a form of literary work

a) to do any of the acts specified above and

b) to sell or give on hire, or offer for sale or hire, any copy of the computer

programme, regardless of whether such copy has been sold or given on hire on

earlier occasions.

Infringing copy means reproduction of the work made or imported in

contravention of the provisions of the Act. 145 The reproduction of the work in

the form of a cinematograph film is deemed to be an infringing copy.

“Literary work” means computer programmes, tables and compilations

including computer databases.146

145
sec.2 (m).
146
See sec. 2(o).

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 “Dramatic work” includes any piece of 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 film147.

“Musical work” means a work consisting of music and includes any

graphical notation of such work but does not include any word or any action

intended to be sung, spoken or performed with the music148.

“Computer” includes any electronic or similar device having information

processing capabilities.149

“Computer programme” means a set of instructions expressed in words,

codes, schemes or in any other form, including a machine, readable medium,

of causing a computer to perform a particular task or achieve a particular

result150.

The rights conferred by s. 14(a) must be interpreted consistent with the above

definitions.

Storing the work in any medium by electronic means would, include storing

the work by recording it on magnetic tape, in the form of cassettes, or compact

disc or in a computer database. Storing by recording is more appropriate for

147
See sec.2 (h)
148
See s. 2(p)

8 See sec.2 (ffb)

database.

Perform the work in public, in the case of literary work, is possible only by

recitation. It is more appropriate for dramatic and musical work. In the

alternative, literary, dramatic, musical work can be communicated to the

public by diffusion or through satellite or cable. See sec. 2(ff).

There must be substantial copying of the work. In deciding whether copying is

substantial there are four principal matters to be taken into account, namely:

First the thing keep in mind the quality is more important than quantity,

Secondly, how much of this material is the subject-matter of copyright and

how much is not,

Thirdly, whether there has been any intention on the part of the defendant to

take for the purpose of saving himself labour,

Fourthly, the extents to which the plaintiffs and defendants work are

competing works.

Since there is no copyright in ideas a film or a book, but not using the

character or dramatic incidents of that other work, is not an infringement of

the copyright in that work.

Language copying:

If the language of one work is copied in a number of instances it may be

considered an infringement.

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 Unconscious copying:-

Unconscious or subconscious copying may constitute infringement. This

happens when a person who has heard a song and afterwards forget about it,

and after some years composes a song believing to be his own but which

resembles the song which he has once heard.

Reproduction:-

What is relevant to consider constituting reproduction has been stated as

follows:

1) There must be sufficient degree or similarity between the two works and

some causal connection between the plaintiffs and the defendants work.

2) If it is not relevant to inquire whether the defendant was or was not

consciously aware of such causal connection.

3) Where there is a substantial degree of objective similarity this will afford

prima facie evidence of causal connection between the two works.

4) The defendant’s denial of conscious copying may provide some evidence

to rebut the inference to causal connection but it is not conclusive.

6.5.1. Exceptions to infringements of Literary, Dramatic or

Musical Works:

The following acts in respect of a literary, dramatic, musical or artistic work are

permitted without infringing the copyright.

Fair dealing:-

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A fair dealing of the work is permitted for research, private study, criticism or

review or for reporting current events in a newspaper or periodical or broadcast or

in a cinematograph film or in a photograph. How much of the reproduction may

be considered as fair will depend upon the circumstances of the case. In the case

of artistic work fair dealing will involve two dimensional reproductions of the

work miniature models of the work.

About question of fact the court will take into consideration:

1) The quantum and value of the matter taken in relation to the comments

or criticism,

2) The purpose for which it is taken,

3) the work is published or no not published, circulated (if not

published), and

4) The likelihood of competition between the two works.

The publication of the whole of the work cannot be justified on the ground that it

was required for research or private study. A student of music may however copy

the whole of a musical work for the purpose of research and private study. in the

case of a painting, drawing or other artistic work in two dimensions the whole of

the work may be reproduced for the purpose of criticism. Study notes containing

substantial reproduction of the original works which were intended as

supplementary aid for students, have been held to be not fair dealing.

Although some taping is an infringement of copyright it is well nigh impossible to

prevent it.

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Reproduction -section 52

Reproduction of a part or whole of the work is permitted for the following

purposes:

a) In judicial proceedings or in a report thereof,

b) For the exclusive use of members of a legislature (state or central)

c) In case lawful circulation of certified copy (artistic work excluded),

d) For teaching or examination purposes,

e) For use in a newspaper, magazine or periodical of n article of

current economic political, social or religious topics unless the

author has expressly reserved the right to himself,

f) For use of public libraries (not more than three copies) where the

work is not available in India,

g) Reproduction of an unpublished work kept in a library subject to

certain conditions,

h) Reproduction or publication of certain Government publications,

e.g.;

i) Any matter published in any official gazette, except Acts of a

legislature,

ii) Acts of a legislature accompanied by Commentaries,

iii) Reports of Committees appointed by Government if there is

Prohibition,

i) Judgments or orders of any judicial authorities unless prohibited.

ii) Production or publication of any translation of Acts of a legislature if

such translations have not already been published or not available,

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 iii) Publication in a newspaper or magazine of a report of a lecture

delivered in public,

iv) Inclusion of short passages of any work in a collection of non-

copyright matter meant for educational institutions subject to certain

conditions.

Performance

Performance of a work or a film or record by the staff of educational institutions

subject to certain conditions or performance of the work by amateur club or

society before a non-paying audience or for the benefit of religious institutions

does not constitute infringement.

Sound recording

a) Making of sound recordings in respect of a work is permitted under certain

circumstances on payment of royalty, and

a. Playing of sound recording in residential premises or in a club not for

profit is also permitted.

The exhibition of a cinematograph film in which a literary, dramatic or

musical work is recorded or reproduced after the expiry of the term of

the copyright in the film is not an infringement of the copyright in the

work recorded.

In cases where use of the work is permitted an acknowledgment of the

work should be made giving particulars of the author.

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Musical work-special features

The acts constituting infringement of a musical work are the same as those for

literary and dramatic works.

Infringement of a musical work is not to be determined by a note for comparison

but should be determined by the ear as well by the eye. The question whether the

defendant has copied the plaintiffs work depends to a large extent on the judge’s

own impression and on expert evidence. The defendant may make use of the

plaintiff’s work, but if he has not copied a substantial part of the plaintiffs work or

if he has altered it substantially it may not constitute infringement.

Acts not constituting infringement in Musical Work:

The statutory exceptions to infringement of copyright in a musical work are:

a) Fair dealing for research or private study, criticism or review, reporting

current events in newspaper/magazine or by broadcast or in a

cinematograph film.

b) Reproduction for judicial proceedings or for the exclusive use of members

of a legislature, in a certified copy, for educational purposes including as

part of question papers or answers to such questions, or of an unpublished

work kept in a library for research and private study.

c) Performance in the course of activities of an educational institution, by an

amateur club or society for a non-paying audience or for the benefit of

religious institution.

d) Making of records on payment of royalty if the work had previously been

recorded.

170
 e) Exhibition of the film in which the work has been recorded after the expiry

of the term of copyright in the film.

In all cases where reproduction of the work is permitted the reproduction

should be accompanied by an acknowledgement as prescribed151.

6.6. Infringement of artistic works:-

In respect of an artistic work infringement of the copyright consists

in doing or authorising the doing of any of the following acts without the

consent or licence of the copyright owner:

i) Reproducing the work in any material form, including the depiction in three

dimension 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 the work to the public not being copies already in

circulation,

iv) Including the work in a cinematograph film,

v) Making any adaptation of the work,

vi) In relation to an adaptation of the work any of the acts referred to above

151
(Intellectual Property Law P. Narayanan Eastern Law House Third Edition,

Eleventh Impression 2015)

171
 vi) Making for sale or hire, or selling or letting for hire, offering for sale etc.,

infringing copies of the work,

vii) Distributing, exhibiting in public for trade, infringing copies of the work,

viii) Imparting infringing copies of the work except one copy for private use.

Artistic work means

painting,sculpture,drawing,diagram,map,chart,plan,engraving,photograph,an

architectural work of at and other work of artistic craftsmanship. Infringing copy

means a reproduction of the work made or imported without the consent or

licence of the copyright owner.

Industrial drawings:

Copyright subsists in any original drawing including industrial

drawings on the basis of which machines or parts of machines are made. Apart

from the reproduction of such drawings which obviously constitute infringement,

the three dimensional representation of such drawing which is a reproduction of

the original drawing in a material form will also constitutes infringement. Where

there is copyright in the drawing of an article, copying of the article made in

accordance with that drawing is indirect copying of the drawing and constitutes

infringement of the copyright. Infringement may be committed by what is called

‘reserve engineering’. One can dismantle a machine, make sketches and drawings

of the various parts and then make the machines from such drawings. This act is

an infringement of the copyright in the drawings from which the machine was

originally produced.

172
When a person purchases a machine he has an implied licence to repair the

machine and for that purpose to manufacture by himself or through others spare

parts by the process of reserve engineering without infringement of the original

drawings.

There is controversy as to whether any person can reproduce the drawings

in a patent specification after the expiry of the patent and whether the patentee

may be deemed to have abandoned his copyright in the patent drawings after the

expiry of the patent. It would appear that since the right conferred under the

Patent Act and the Copyright Act are distinct there is no basis for inferring that by

taking out a patent for the product the patentee has abandoned his copyright in the

drawings forming part of the specification. In fact it may so happen that the owner

of the patent may not be the owner of the Copyright in the drawings.

Where a garment is made by copying another garment made from some

drawings it is an infringement of the copyright in this circumstance merely

knowledge of same drawings in garment is sufficient for constitute the case of

infringement.

Construction of a building or structure in accordance with drawings

and plans in which copyright subsists in an infringement of the copyright in the

drawings and plans. If the construction of a building or structure of building

infringes the copyright in some other work which is already started ,in that case

the owner of copyright cannot seek the remedy of injunction.

According to decisions given by the high court’s and supreme court of

India any preparation of painting work drawing work or any photography of a

sculpture or any work of craftsmanship is subject to assessment of public.

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6.6.1. Acts not constituting infringement of artistic works

The following acts do not constitute infringement of copyright in an

artistic work:

a) Fair dealing for the purpose of research or private study, criticism or

review, reporting current events, in a newspaper or periodical, or by

broadcast or in a cinematograph film by means of photographs.

b) Reproduction for the purpose of judicial proceedings or any report

thereof, in any work prepared for the exclusive use of members of any

legislature, by a teacher or a student in the course of instruction, or as

part of question papers or in answers to such questions.

c) Use of architectural drawings for reconstruction of a building or

structure originally constructed in accordance with such drawings with

the consent or licence of the copyright owner.

d) Use by the author of any mould,cast,sketch ,plan, model or study

made by him for the purpose of any work although the copyright of

which is not owned by him.

6.7. Infringement of cinematograph films:-

Definition of infringement

In respect of a cinematograph film infringement consists in doing or authorising

the doing of the following acts without the licence of the owner of the copyright

in the film.

174
1) To make a copy of the film, including a photograph of any image forming

part thereof;

2) To sell or give on hire or offer for sale or hire, any copy of the film,

regardless of whether, such copy has been sold, or given on hire on earlier

occasion;

3) To communicate the film to the public;

a) “Communication to the public” means making the film available to the

public for being seen or heard or otherwise enjoyed by the public

directly or by any means of display or diffusion and regardless of

whether any member of the public actually sees, or hears or otherwise

enjoys the film so made available. The communication may be made

through satellite or cable or any other means of simultaneous

communication to more than one household or place of residence

including residential rooms of the hotel or hostel s.2 (ff).

4) To permit for 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 film.

5) To make an infringing copy of the film for sale or hire or to sell or let for

hire or by way of trade display or offer for sale or hire an infringing copy;

6) To exhibit infringing copies in public by way of trade;

7) To distribute infringing copies either for the purpose of trade or to such an

extent as to affect prejudicially the owner of the copyright;

175
 8) To import into India any infringing copies of the work. However, the

import of one copy of the film for the private and domestic use of the

importer is permitted.

a. ‘Infringing copy’ means a copy of the film made on any medium by

any means- s.2 (m)(ii), if such copy is made contrary to the provisions

of the Act.

b. “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.

Playing a video tape in public would constitute infringement of the

film.

There is no exception to infringement of a cinematograph film as in the

case of literary, etc., works.

A cinematograph film except in the case of live performance like

sporting events or other public events or natural events, etc., is ordinarily based on

some literary, dramatic, musical or artistic work in which copyright may subsist.

Hence the producer of a film must obtain licence from the copyright owners such

work because making a cinematographic film in respect of such work is the

exclusive right of the copyright owner of the work. After the term of the copyright

in the film (i.e. 60 years from the year of publication) has expired exhibition of

the film is permitted even though the copyright in the literary, etc. Work on which

it is based has not expired.

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 If a cinematograph film is based on a copyrighted literary, etc., work

without a licence from the owner of the copyright in that work, it is an

infringement of the original work. Such a film will not be entitled to copyright.

The question whether a cinematograph film is an infringement of the

copyright in another film depends upon the circumstances. Much will depend

upon whether the plot, story and characters are taken from a copyrighted work or

from the public domain, the extent of the similarity and whether the labour and

effort bestowed upon one film been appropriated by the producer of another film.

The owner of the copyright in a dramatic work has the exclusive

right to make any cinematograph film or a sound recording in respect of an

adaptation of the work. A clever film producer may take the central ideas from the

work and make such alterations in the scenario, story, plot and incidents in

making the film so as not to infringe the copyright. The case of Anand v. Deluxe

Films (AIR 1978SC I613) is an excellent illustration of the difficulties involved in

establishing that a cinematograph film is an infringement of a dramatic work.

Reprinting individual pictures from the film as still pictures are infringement of

the copyright in the film.

6.8. Infringement of copyright in sound recording:-

Definition of infringement

In the case of a sound recording the doing or authorising the doing of any of the

following acts by utilising the sound recording without the consent or licence of

177
the copyright owner constitutes infringement of the copyright in that sound

recording:-section 51 read with s.14 (I)(e).

1) To make any other sound recording embodying it;

2) To sell or give on hire or offer for sale or hire any infringing copy

of the sound recording regardless of whether such copy has been

sold or given on hire on earlier occasions;

3) To communicate the sound recording to the public;

4) To permit 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 sound recording unless he was

not aware and had not reasonable ground for believing that such

communication to the public would be n infringement of the

copyright;

5) To make infringing copies for sale or hire, or to sell or let for hire,

or by way of trade displays, to offer for sale or hire;

6) To distribute either for the purpose of trade or to such an extent as

to affect prejudicially the owner of the copyright;

7) To exhibit in public by way of trade;

8) To import into India any infringing copy, however, the import of

one copy of sound recording for the private and domestic use of the

importer is permitted.

“Sound recording” means a recording of sound from which such

sounds may be produced regardless of the medium on which such

178
 recording is made or the method by which such sounds are produced.

As to who is the first owner of copyright in a sound recording

Infringing copy means any other recording is made or imported

contrary to the provisions of the Act.

In sound recording it may be come literary work if that work recorded by way of

spoken or by way of recite any content or any dialogue of any dramatic work or

any stage playlist may also any spoken song or recited song. There may be

copyright subsisting in the subject-matter recorded. Since making of a sound

recording of a literary, dramatic or musical work constitutes infringement of that

work a sound recording made without the licence of the owner of the copyright in

that work will constitute infringement of that work.

Home taping of sound recording

Home taping of sound recordings has become very common although

it is an infringement of the copyright in the sound recording. It is perhaps

impossible to prevent home taping for private use because of practical difficulties.

Accordingly seldom any action is taken against home taping. But taping of a

sound recording for commercial purposes will be a different matter.

A dealer who hires records to customers is not authorising them to home tape the

record although many of them in fact do so. Videotaping of televised programmes

is an infringement of the copyright in the television programmes.

6.8.1. Exceptions to infringement of the copyright in a sound

recording

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 There is no fair dealing provision for sound recording as such.

Accordingly copying a recording at home for whatever use even if it be for

research or private study will be an infringement of the copyright in the recording.

Sound recording will not constitute infringement:

i) If the Sound recording is played in residential premises exclusively

meant for the residents,

ii) If the sound recording is played as part of the activities of non-profit

making club, society or organisation.

Playing a sound recording in private is not an infringement of the

copyright in the sound recording. Broadcasting authorises, if they want to

broadcast the recording must obtain a licence for the purpose from the recording

company who are ordinarily the owners of the copyright in the sound recording.

6.9. Main issues in a suit for infringement of copyright:-

At the time of enforcement of right against infringement there mat may be

following issues they are as under. The following issues arise in a suit for

infringement of copyright;

1) is the plaintiff entitled to file the suit, in other words is he the owner of the

copyright alleged to be infringed.

180
2) Does copyright subsist in the work alleged to have been infringed?

3) Does what the defendant has done or proposes to do constitute infringement of

the copyright in the work.

4) Does the defendants act come within the scope of any of the exemption to the

infringement?

5) What remedies the plaintiff is entitled do.

Interlocutory injunction:-

An order of interlocutory injunction will be given only on the

basis of prima facie circumstances and it is very difficult to plaintiff to produce

prima facie evidences before the court of law. the defendant also defend himself

as there is no any evidences against him and request to court reject the contention

of the plaintiff. For the purpose of injunction the court cannot make order directly

against defendant because his right to trade and business have to be protect. The

defence may be taken by the defendant is that he is using and making all things in

bona fide manner.

Damages on account of profits:-

There are two types of damages available to a successful

plaintiff, one under Sec.55 for infringement and the other under Sec.58 for

conversion.

181
Criminal Proceedings

In addition to civil remedy the Copyright Act enables the owner of

the copyright to take criminal proceedings against an infringer.

The copyright Act requires certain particulars to be displayed on

records and video films or containers thereof. These include the name and address

of the person who has made the record, name and address of the owner of the

copyright and year of first publication and in the case of a video film, a copy of

the certificate granted by the Board of the film Certification for the

Cinematograph film, the name and address of the person who has made the film

and the name and address of the copyright owner. Any person who publishes a

record or a video film in contravention of the above requirements will be punished

with imprisonment which may extend to three years and with fine.

Section 65A and 65 B have been inserted by the Copyright

(Amendment) Act, 2012 which deal with protection of technological measures

and protection of rights management information.

Section 2(xa) has also been inserted by the Copyright

(Amendment) Act 2012 which defines rights management information. it means

the title or other information identifying the work of performance; the name of the

author or performer; the name and address of the owners of rights; terms and

conditions regarding the use of the rights and any number or code that represents

the information referred to above. Any violation of s.65B attracts punishment of

imprisonment which may extend to two years and fine.

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6.10. Term of copyright:-

The term of copyright protection in India is depending on the nature of work.

Copyright protection for literary work, dramatic work and artistic work is lifetime

of the author until sixty years from the beginning of the calendar year from the

death of the author. Copyright protection is same for the photographs etc.

Copyright in cinematograph film consist until sixty years from the beginning of

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

Protection of the Copyright in a work does not permanent but its protection

available for a long time. The term of copyright protection is limited to the life of

the author and fifty years after his death (usually referred to a ‘fifty years pma’, ie

post mortem auctoris) in most of the countries. The limited duration of copyright

protection is compromise between those who argue that copyright should be

permanent, e.g., last as long as the work is used because it is appreciated and

enjoyed by the public, and those who argue that it is a personal right and should

terminate with the life of the author so that the public can enjoy its unrestricted

use after his death.

The compromise between the two groups having two different opinions

gives rise to the notion that eventually the work should enrich the national culture,

and become public property after a specified period. After the expiry of the

copyright term, the work falls into public domain. In other words, after the expiry

of copyright term, any person can use the copyright work without any permission

or authorisation and without paying any fee or royalty. Apart from economic

rights, the moral rights of the author also cease to exist after the expiry of

copyright in the work. In such a case, the users may use the work in any way they

183
like, and no cause of action will lie against them even if the work has been

distorted or mutilated.

6.10.1. Term of Copyright in Published Literary, Dramatic, And

Musical Works:

Section 22 of the Copyright Act, 1957 as amended by the Copyright

(Amendment) Act 1992 provides that copyright subsists in any literary, dramatic

or musical work published within the lifetime of the author until sixty years from

the beginning of the calendar year nest following the year in which the author

dies. In case of joint ownership of copyright in musical work then calculation will

be start from the author who dies last it may be two or more than two person the

calculation is after the last died person.

Before the amendment in the copyright law the term copyright

protection was fifty years from the death of the author. The reason for executing

copyright term was to protect the work of Guru Rabindranath Tagore, the

copyright in which was due to expire on 31 December 1991.

In United Kingdom, under s.12 of the CDPA, the term of copyright in

a literary, dramatic or musical work was 50 years from the end of the calendar

year in which the author died. However, if the work was of unknown authorship,

copyright expired at the end of the period of 50 years from the end of the calendar

year in which it was first made available to the public(copyright, design and

Patent Act 1988 s 12 (2))

184
 Following EC Directive, the general term for copyright in literary,

dramatic, musical and artistic works is the authors’ life and 70 years thereafter. If

there are joint authors, then the term is measured from the death of the longest

living among those who qualify for United Kingdom copyright.(ibid 13(4)) the

twenty year increase in term applies to works created before its introduction date

(1 January 1996) as well as to those created subsequently.(duration of copyright

and rights in performances regulations 1995,reg. 16.) this has the effect not only

of extending the protection of works which are still in British copyright on the

introduction date, but even of reviving copyright in works which in Britain had by

then fallen into the public domain. Copyright reviews wherever a work is still

protected in one EEA State on 1 July 1995.

Computer-generated literary, dramatic, musical and artistic works, ie,

works generated by a computer in circumstances such that there is no human

author of the work, are subject to a special rule, reflecting the fact that they do not

have a human author, and are entitled only to a fixed period of 50 years from the

end of the year in which the work was made (copyright, design and patent Act

1988,s 12 (7))

In India, there is no difference between the computer programs and

computer generated works in so far as the term of copyright is concerned. The

copyright Act 1957 provides protection to copyright in a literary, dramatic and

musical work published within the lifetime of the author until 60 years from the

185
beginning of the calendar year next following the year in which the author

dies.152(copyright Act 1957,s 22)

Under copyright ACT, 1957 copyright is anonymous and

pseudonymous works subsists until sixty years from the beginning of the calendar

year next following the year in which the work is first published. However, where

the identity of the author is disclosed before the expiry of the said period,

copyright shall subsists until 60 years from the beginning of the calendar year

next following the year in which the author dies.

6.10.2. Artistic Work:-

Section 22 of the Indian Copyright Act, 1957 as amended by the Copyright

(Amendment) Act 1992 provides that copyright subsists in any artistic work other

than a photograph, published during the lifetime of the author until 60 years from

the beginning of the calendar year next following the year in which the author

dies.

Copyright in to the form of anonymous and in to the form

pseudonymous works subsists until 60 years from the beginning of the calendar

year next following the year in which the work is first published. And if the

identity of the author is disclosed before the expiry of the said period, copyright

shall subsist until 60 years from the beginning of the calendar year next to the

year in which the author dies.(ibid,s23(1))

152
copyright act,1957,s 23(1))

186
 In United Kingdom, the CDPA provides that the term of

copyright in an artistic work in 70 years from the end of the calendar year in

which the author dies. However, if the work is of unknown authorship, copyright

expires at the end of the period of 70 years from the end of the calendar year in

which it is first made available to the public. Making available of an artistic work

to the public includes (i) exhibition in public ;( ii) a film including the work being

shown in public; or(iii) being included in a broadcast or cable programme service.

No account however shall be taken of any unauthorised act.153

6.10.3. Cinematograph Film

In India, copyright subsists in a cinematograph film until 60 years

from the beginning of the calendar year next following the year in which the film

is published.(copyright act 1957,s26) ‘publication’ is defined under the Copyright

Act,1957 to mean making a work available to the public by issue of copies or by

communicating the work to the public.(ibid s.3)

It is noteworthy that the copyright Act 1957 lays down term of

protection in respect of published films only. The Act is silent in respect of the

term of unpublished cinematograph films. It is certain that copyright subsists in

unpublished cinematograph films under s 13(2)(ii) of the Copyright Act 1957. It is

difficult to say whether copyright protection is available to unpublished

cinematograph film for an unlimited period o time. The Act should be amended to

incorporate a provision for providing specific term for the protection of

unpublished cinematograph films.

153
ibid 12 (1)

187
 Under CPDA, prior adoption of Duration Directive, copyright in a

film expired at the end of 50 years from the end of the calendar year in which it

was made, or if it was released before the end of that period,50 years from the end

of the calendar year in which it was released.(copyright, design and patent act

1988,s13(1)) after adoption of duration directive, copyright in a film expires at the

end of the period of 70 years from the death of persons concerned with

the film.(ibid 13 B) United Kingdom has carried out its obligation under Duration

Directive to increase the term of film copyright to make it 70 years from the death

of the aforesaid persons. This operates for all films, old and new, and enhances

the entitlement of the producer, who is as yet the sole ‘author’ of a film. The very

considerable investment, which goes into major film productions, has been held to

justify a special way of measuring lives.

As the new term of copyright applies to existing films,(Existing

films mean those existing at the date by which the Duration Directive should have

been implemented,ie,1 July 1995) it extends the duration of those films in which

copyright has not expired and revives copyright in those which have fallen into

the public domain154.

154
Duration Directive, art 2(2).

188
6.10.4. Sound Recording

In India according to s.27 of the Copyright Act 1957,copyright

in a sound recording subsists until 60 years from the beginning of the calendar

year next following the year in which the sound recording is published .a work is

not deemed to be published, if published without the licence of the owner of the

copyright.(copyright Act 1957,s 4.) the Act is silent in respect of the term of

provision, it is difficult to say whether copyright protection is available to

unpublished sound recordings for an unlimited period of time.

Under CDPA, copyright expires at the end of the period of 50

years from the end of the calendar year in which it is made, or if released (ie in an

EEA country, first published, broadcast, cable cast) before the end of that period,

50 years from the end of the calendar year in which it is released.(copyright,

design and patents Acts 1988,s 13 A(2),following art 3(2),Duration Directive.)

6.11. Role of copyright societies in the Administration of

Copyright:-

Copyright societies play a very important role in the collective management of

copyright which serves the interest of not only of the copyright owners, but also

the users of the works and the public at large. Prior to 1994 amendment, the Act

provided for the Performing Rights Societies which carried on the business of

issuing or granting licences for the performance in India of any work in which

copyright subsisted. The 1994 amendment has extended the operation of the legal

provisions to the business of issuing licences in respect of all rights relating to any

class of work in which copyright subsists under the Act.

189
Chapter VII of the Act provides adequate general provisions for the registration

and management of such copyright societies in the interests of authors and

copyright owners for whom it would be impracticable or uneconomical to licence

the use of their works individually to all users, or to collect fees from them, and

also in the interests of general public and particularly of users of rights who may

not conveniently be able to obtain licences from individual authors or copyright

holders. The copyright societies, therefore, help in enforcing copyright with the

benefits both to the copyright owners and to the general public.

6.11.1. Registration of copyright society:-

It is mandatory for any person or association of persons to get itself registered

with the central Government to carry on the business of issuing or granting

licences in respect of any work in which copyright subsists or in respect of any

other rights conferred by the Act (copyright Act,1957,s 33(1)) any association of

persons, whether incorporated or not, comprising seven or more owners of

copyright, formed for the purpose of carrying on the business of issuing or

granting licences in respect of any class of works in which copyright subsists or in

respect of any other right conferred by the Act may file an application in Form II-

C with the Registrar of Copyrights for submission to the central Government for

grant of permission to carry on such business, and for its registration as a

copyright society.155

155
(ibid, s 33(2);copyright Rules 1958,r 12 (1)

190
6.11.2. Conditions for Registration of a Copyright Society:-

The central Government may register an applicant as a copyright

society within 60days from the date of receipt of application made by the

applicant through te Registrar of Copyrights. However, the Central Government

may also reject the application if:

i) If it is found that the applicant has no professional competence to

carry on its business or has no sufficient funds to manage its affairs; or

ii) if it is found that there exists another copyright society registered

under the Act for administering the same class of works and it is functioning

well; or

iii) It has reason to believe that the members of the applicant are not

bona fide copyright owners or that they have not voluntarily signed the instrument

setting up the applicant and application for registration; or

iv) The application is incomplete in any respect.

The applicant shall be given an opportunity of being heard before its application is

rejected.156

6.11.3. Factors to be considered before Registration:-

Before registering any association of persons as copyright society, the

central Government shall have regard to:

156
copyright Rules 1958,r 14 B

191
 i) The interest of the authors and other owners or rights under the

Act;

ii) The interest and convenience of the public, particularly 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 applicant (copyright

Act1957, s 33 (3).

In India, PPL, IPRS and SCRIPT copyright societies are registered

with central Government.

Ordinarily, one copyright society shall be registered to do

business in respect of the same class of works.(ibid 33(3),proviso.) it is

noteworthy that a copyright owner shall, in his individual capacity, continue 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(ibid 33(1) proviso)

6.11.4. Cancellation or suspension of the Registration:

The central Government may cancel the registration of such society after the

prescribed inquiry, if it is satisfied that the society is being managed in a manner

detrimental to the interests of the owners of copyright concerned. The central

Government may also suspend the registration of such society pending inquiry for

a period not exceeding one year, if it is of the opinion that in the interest of the

concerned copyright owners, it is necessary to do so. For this period, it shall

192
appoint an administrator to discharged the functions of the copyright society.(ibid

33(5))

6.11.5. Agreement between copyright society and similar Foreign

Society:-

Act allows copyright society to enter into agreement with any

foreign society or organisation administering similar rights, to entrust to such

foreign society or organisation the administration in any foreign country of rights

administered by the copyright society in India or vice versa. It is, but it is

obligatory that such society or organisation shall not be permit any

discrimination in regard to the terms of licence or the distribution of fees collected

between rights in Indian and other works157.

In India, the IPRS has direct reciprocal agreements with APRA, MACP, KCI,

PRS, COMPASS and CASH. The other societies are related to IPRS through

PRS. Thus, IPRS is contracted to societies of 164 countries, meaning thereby that

Indian repertoire is protected in those countries, and IPRS represent their rights in

India.

The Act authorises a copyright society to exercise following powers subject to the

prescribed conditions:

1) Issue licences under s 30 in respect of any rights under this Act;

2) Collect fees in pursuance of such licence;

157
copyright Act 1957,s 34.

193
3) Distribute such fees among owners of rights after making deductions for its

own expences; and

4) Perform functions which are consistent with s 35.(Copyright Rules 1958,r 14 H

(2))

The distribution of fees collected shall be subject to a deduction not exceeding 15

percent of the collection on account of administrative expenses incurred by the

copyright society.(copyright Act 1957,s 34 A)

6.11.6. Copyright society and public interest:-

Copyright society serves the interests of copyright owners and the public at large.

By becoming an important mechanism for collecting royalties from the users of

copyrighted work, the society protects the interests of copyright owners

effectively.

On the other hand, the society enables the users of

copyrighted works to obtain permission to use copyrighted work in a simple,

workable, practicable and cheaper manner. As the copyright societies control most

of the copyrighted work, the users need not locate the copyright owners. Further,

the users avoid travelling, and save precious time and money, as they need not go

to the copyright owners to contract, negotiate or obtain their individual

permissions. The users need only to pay fee to society, and get rid of many

problems. The copyright societies prove effective in enforcing copyright and

protecting public interest. In case of infringement actions brought by third parties,

194
the users are normally indemnified by the societies. There is likelihood for the

users of succeeding in such cases.

195