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CHAPTER-1 INTRODUCTION 1.1 GENERAL Property according to traditional classification may be either movable or immovable.

Both movable and immovable properties fall under the category of corporeal property which is capable of being physically touched, sensed and perceived, it is also called tangible property. Another property is intangible property which cannot be seen. It relates to intellectual property, securities and individual reputation etc. Intellectual property is that property which is created by human intelligence i.e. mental labour, and it includes property and literary property. The category of industrial property includes patents, trademarks, industrial designs and layout designs. Literary property includes copyright and neighboring rights including the performer's rights. In recent times many new forms of intellectual property have come into existence. They include plant varieties, plant breeders’ rights, digital copyright and domain names etc. Many new forms are related to Information Technology (IT), Chemical Technology (CT) and Bio-technology (BT). However these parts are attracting the attention of the commercial world. Because of phenomenal advancement of science and technology new forms of intellectual property also came into existence, they include business methods, computer programs etc. Mere ideas cannot be protected under intellectual property. They can be protected only when they are put in materialistic form (which is tangible). The answer to the question, "What constitutes the most precious thing in the world?" Is undoubtedly 'the human mind'. This is because the mind has conceived innovative ideas and created the mechanisms to apply them. Many things around us which have occurred merely due to innovation and creativity. If individuals who conceive the innovative ideas are not rewarded, it would lead to the curtailment of their creativity. This is where the concept of intellectual property steps in the main reason having intellectual property right is to reward the persons who put in efforts into intellectual creations. Another reason is by giving protection to intellectual 1

property many such endeavors are encouraged and industries based on such work can thrive. Further, it also leads to financial returns and prosperity. This form of intellectual property has got greater recognition only in the 18th century. In fact intellectual property acquired greater recognition in international law, when compared to the municipal laws. In today’s world the international dimension of intellectual property is of ever increasing importance for three compelling reasons
1) The composition of world trade is changing; currently commerce in

intellectual property has become an even greater component of trade between the nations. The value of information products has been enhanced greatly by the new technologies like semi-conductor chip, computer software and biotechnology.
2)

The world commerce has become even more interdependent, establishing a need for international co-operation. No longer can a simple country impose its economic will on the rest of the world. Accordingly countries have recognized this interdependence and have called for a broadening of international agreements, arrangements involving intellectual property.

3)

New reprographic and information storage technologies permit unauthorized copying if take place faster and more efficiently than ever undermining the creator's work. Intellectual property is predominantly recognized in the commercial world to

protect the interest of mercantile community. It is specially created and recognized in law in spite of its monopolistic nature for a definite period or for an unlimited period based upon the nature of creation. The flow of knowledge based information can be constrained by space and national borders. The need for comprehensive international agreements governing intellectual property could be seen even in the 19th century, which came into fruitarian with the union of Paris for the Protection of Industrial Property (1883) and the Berne Convention for the protection of Literary and Artistic works (1886).

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World Intellectual Property Organization (WIPO) which governs the intellectual property rights of member states. There are many international instruments and international institutions help in understanding of the international regime of intellectual property rights, through trips, GATT; patent co-operation Treaty, Budapest Treaty, Madrid Agreement, Lisbon Agreement, Trademark Treaty and regulation and Universal Copyright Conventions etc., WIPO Copyright Treaty. An invention can be patented and no other person can use that invention for his own without paying fees to the owner. It is same with authorship in various forms. The notion that an author should have an exclusive 'copyright' in his creation, it took a firm shape at the beginning of the eighteenth century. Copyright is considered as a kind of property, but its precise nature differs substantially from other forms of property with which more people are familiar. Indian Copyright Act of 1957 provides copyright protection of original literary, dramatic, musical and artistic works, cinematograph films and records during the authors’ life and for 50 years. Subsequent to the authors’ death also. Briefly, copyright means the right to copy or the right to restrict or control copying. Starting with books copyright protection has gradually expanded to cover other domains of intellectual creations like art, sculpture, architecture, choreography, films, records and broadcasting. Accordingly legislative actions against infringement and video piracy had come into force to protect the copyright. A brief historical view will help in understanding why copyright protection has started, with the invention of printing which made it possible. Copyright is an exclusive right granted to the author to make copies or reproduction of his work for a certain period. Law confers monopoly right on the author for the intellectual effort. Copyright restricts any person except author, to use the works without the authors will. Copyright restricts the reproduction of the work in any material form, publication performance in public, broadcasting, transmission over a diffusion service and the making of an adaptation. Adaptation includes the conversion of a non-dramatic work into a dramatic work and vice-versa, a translation 3

sell or make copies or distribute the copies of the work.or a version for publication in which the story or action is conveyed wholly or mainly by pictures. entertainment and computer industries. music. 64(A. is called his copyright. and ii) The law on neighboring rights. 4 .P)-2006(33) PTC 456. The basic areas that are covered under the copyright protection are in the field of printing. 2006(3) Raj. which is the result of the intellectual labour. Section 14 of Indian Copyright Act defines copyright as an "exclusive right by virtue of and subject to. Copyright law can be divided into i) Copyright law in the strict sense of the work. Vs.e. The primary function of a Copyright law is to protect the fruits of a man's work. labour. In fact 'copyright' was the first intellectual property which received legal recognition in the world. The law of copyright has to protect a man's copyright irrespective of his status as a family man or saint.1 Copyright is a unique kind of intellectual property. authors were given copyright to use his work in any manner as he likes to reproduce. Meta Musicals. the copyright protection extends to the original works of the authors. It does not fall in the category of intellectual property. Jayalakshmi Vs. The primary function of a copyright law is to protect the fruits of mans work. Copyright is a unique kind of intellectual property the importance of which is increasing day by day. the protection of intellectual creativity. Shiv K. Ltd. i. Holy Faith International Pvt. 2001 (1) Raj 150. skill or test from annexation by other people. labour. skill or test from being taken away by other people. The right which a person acquires in a work. The right which a person acquires in a work which is the result of his intellectual labour is called his copyright. artistic and dramatic works and 1 2 Sulamangalam R..2 However. Kumar. the provision of this Act" to do and authorize doing of any number of prescribed acts in relation to literary. communication.

to cinematograph films and records. Consequently. Copyright constitutes property rights in personam and in rem. it has been stressed in India. The requirement of 'originality' in Indian law. AIR 1955. does not refer to ideas but rather to the manner and material forms of their expression. violation of which can be redressed under the protection of the Act. Obviously. as elsewhere.3 3 Govindan Vs. Mad 391 at 393. The expression of thought. the form. 5 . labour and capital. craftsmanship. formulation. The meaning of copyright for each category of work is quite extensive and that copyright protection extends to all binds of work including those which represent "originality" at vanishing point. owing its existence and stature within the four corners of the Act. craftsmanship. The extent or amount of originality in expression or material form may be very small but that small amount is protected by law. the notion of originality does not even entail a modicum of novelty or creativity. skills. knowledge. or more colorfully it should not amount to piracy of another's skills. labour and capital in the production of any work. In a sense. Gopalakrishnan. plan or arrangement of presentation as testifying to the investment by the author of mental faculties. order.S.R.1977) prevention of unlawful reproduction of dealing with the manner and material form in which ideas are expressed. Section 16 of the Act makes it clear that no person is entitled to copyright "or any similar right in any work otherwise than under in accordance with the provisions of this Act or of any other law for the time being in force". Iyenger. It is also important to stress at the outset that copyright is defined as a statutory right. In other words the requirement of originality is an elliptical way of expressing the idea that the work should not be a substantial copy of another work. originality also refers not to novelty or creativity in ideas but only to the manner and material form of their presentation. the Copyright Act 1957 (101 3rd ed. The objective of copyright. rather the protection aims of T. is not to "create monopoly in ideas". competence. competence. No customary law is to be pleaded. copyright law protects the author against dishonest and willful misappropriation or theft of the author's efforts.

"The congress shall have power. It is generally held that titles of books. In case of joint works where the individual contributions of the participating authors are not distinguishable.Copyright is defined in the concise oxford dictionary as "the exclusive right given by law. by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries". directories and such other compilations of public domain materials are also protected. whose protection has ceased. as artistic works. Illustration in books may have a separate copyright. condensations or rearrangements of literary works. In regard to topographical details. 4 U.. there may be a separate copyright vesting in the editor in regard to arrangement. whether it is of merit or not. are eligible for protection. etc (or his assignee) to print.S. composer. Publishers of maps might like to know that it is an offence to show wrong international boundaries and these are to be verified in advance with the survey of India. These may not necessarily be held by the author of the literary work. The moral justification for providing legal protection is based on the principle that a man is entitled to the fruits of his brain as much as he is entitled to the fruits of his mechanical labour. In an encyclopedia. Constitution Art 1. in addition to the copyright held by the contributor of an article.. Adaptations. publish and sell copies of his original work". 6 . Sec. gazetteers. for a certain term of years. which are mere words. 4 All original literary works are eligible for protection what is protected however is not the idea but the literary form. the rights are held jointly. the survey of India would ask for copyright fees in all those cases where their topographical details are used. to an author. Dictionaries.8. do not have copyright. Publishers of law books may note that though any one may reproduce under Sec.to promote the progress of science and useful arts.52 (l)(g) of the 1957 Act yet head notes may have copyright and these may not be lifted from other law reports. provided they be original and not merely copied from an earlier work..

persons concerned with cinematograph film and recording and broadcasting authorities and printing.3 OBJECTIVES OF THE STUDY 1) An attempt is made in the present study to evaluate. This study intended to study developments of copyright and importance of copyright in India. musical. what is the importance of copyright law? Why and how they were recognized and protected by the institution of copyright? What are the legislations passed and how are they implemented? How conventions are helpful in protection of copyright internationally. the back of the title page of any book will contain a copyright notice. 2) The researcher has taken up the study the different aspects of copyright from their origin and development. dramatic or musical works. (1) the letter 'c' in a circle © (2) the name of the copyright proprietor and (3) the year and date of publication. communication. the emerging trends and different provisions of copyright law in India. publishers. but also artists. architects. Under the Berne Convention.Almost invariably. Now-a-days the law of copyright has gained much importance not only in literary. unless the state where the work is first published stipulates such a condition in its domestic law. dress designers. The notice is to consist of three parts namely. Under the universal copyright convention. publishing and entertainment industries. such a notice is not necessary. entertainment and in computer fields. 1. 1.2 SIGNIFICANCE OF PROBLEM Copyright is a kind of intellectual property the importance of which has increased enormously in recent years due to eh rapid technological development in the field of printing. however a copyright notice has to be included in a prominent place. 7 . The absence of this notice may invalidate copyright in universal copyright convention countries not belonging to the Berne Union. multimedia. 3) Number of questions is involved in this study like. Infringement of copyright can be stopped by an action for infringement.

1. 8 . P.org. 1. journals and periodical.R. it is based on published works like books.org. www. articles. amendments. objectives of study. 1. Researcher also consulted the legal luminaries and experts in the field of intellectual property law. reports.6 PLAN OF STUDY The present study is divided into Six chapters. Dr. W. www. Reddy's Intellectual Property Rights and the law focus on the copyrights law in India and its relativeness with other intellectual property rights.4 METHODOLOGY The present research work is explanatory and descriptive design of study. The first chapter deals with the introduction significance of problem. journals and newspapers and internet etc. G. methodology used. etc. enactments. In addition to these books. and commentaries of different jurists about the copyright law in India.wipo.B. and review of literature and plan of study. These works give information about the cases. Narayanan book on intellectual property gives full length information of copyrights.Cornish book on intellectual property gives the information about origin and development of copyright law. From the study the main source of information to be collected from secondary sources like books. Websites like www.S.spicyip. many websites give much information about the latest developments and position of copyrights in different countries and its enactment. Descriptive design because various legislations and international Conventions on the protection of copyright are to be discussed elaborately.com gives much information of copyrights in India.iprlawindia.5 REVIEW OF LITERATURE The present study which is based on secondary data method.

1) The second chapter is origin and development of copyrights law in India an approach. 3) The fourth chapter deals with Infringement of Copyrights. rights of owners of copyright. meaning of copyright.Analysis of the law which deals with definition of copyright. and infringement of copyright. 9 . 4) The fifth chapter deals with the Legal Protection of Copyright in India and Judicial Perspective of Copyrights. 5) The sixth chapter deals with the Conclusion and Suggestions for the implementation of the Act. 2) The third chapter is Copyright .

of about six hundred odd ex-princely states which never became. composers. 2. after attainment of the Indian independence. had the power to modify the provisions of this Act. It is discussed in the following chapters. when India became a free republic. etc from unauthorized usage of others. But there is some evidence that some such states elected to adopt basic features of English statutes on copyright. But it affects the rights of talented people. legally. The term of copyright was for the life time of the author plus seven years post-mortem.1 ORIGIN AND DEVELOPMENT OF COPYRIGHTS LAW IN INDIA It is customary to commence historical accounts of copyright law with enactment of the 1914 Act which did nothing more than extend all vital respects the United Kingdom copyright Act to India. which persisted about a decade or so. modifying them in some respects to suit local conditions. hence government made necessary legislations to protect the works of the owners by giving copyright to them.AN APPROACH General There is need to protect the works of writers. equity and good conscience" or as regards the application of British statutes or territories then administered by the East India Company. under Section 26. But in no case the total term of copyright was to exceed the period of forty. Its preamble recites several doubts which exist or which "may exist" concerning recognition and enforcement of copyright as a part of the common law or administration of justice on the basis of "justice.two years. The government was empowered to license publication of the book if the owner of copyright upon the death of the author refused to allow its 10 . The then Indian legislature. play rights.CHAPTER-2 ORIGIN AND DEVELOPMENT OF COPYRIGHT LAW . First statute on copyright was enacted during the east India Company’s regime in 1847. a part of British India and continued their "sovereign" existence till 26 January 1950. poets. We lack knowledge about systems of copyright protection and indeed of the total legal systems. An adequate history of copyright law in India must take note of the systems developed in the Portuguese and French enclaves in India. Printing made it easy to prepare multiple copies of a work quickly and cheaply.

projector. Infringing copies were deemed to be copies of the proprietor of copyrighted work. and is administered by WIPO. there were 117 states which become parties to the Berne Convention. Berne Convention. Registration of copyright with the home office was mandatory for the enforcement of rights under the Act. The Act provided specifically that under a contract of service copyright in "any encyclopedia review. a) Berne Convention For The Protection Of Literary And Artistic Works The International Union for the Protection of Literary and Artistic works was first established in 1886 in Berne. The Berne Convention has 38 articles and an appendix incorporating special provisions for the developing countries. Unauthorized printing of copyright work for "sale hire or exportation" or for selling. publisher or conduct". publishing or exposing to sale or hire constituted infringement. magazine. It is popularly known as the Berne Union or Berne Convention. c. following international conventions are directly concerned with the international protection of copyright. Suit or action for infringement was to be instituted in the "highest local court excursing original civil jurisdiction". 2. The substantive provisions of Berne are 11 . but the proviso to section 14 specifically reserved the subsistence of copyright in the author and his right to sue for its infringement to the extent available in law other than the 1847 to 1911. 1887 and has been revised five times with two additions. a. Universal Copyright Convention. 1971. It entered into force on 5th December. 1996. periodical work or work published in a series of books or parts" shall vest in the "proprietor. The latest text is that of the Paris Revision. Switzerland. b. International Convention for the Protection of Performers. As on January 1. We do not have much information on how this legislation operated during the period 1847 to 1911.2 INTERNATIONAL CONVENTIONS PROTECTING COPYRIGHT In the globalization of trade and commerce there is every need for the protection of copyright internationally.publication.

scientific and artistic domain. topography or science. illustrations. architecture sculpture. works of drawing. whatever may be the made or form of its expression. The published and unpublished works of authors. pamphlets and other writings. which is the oldest International Convention governing Copyright. constitute intellectual creations shall be protected as such. plans. the following in its article 2 The expression "literary and artistic works" shall include every production in the literary. Translations. This convention is based on national treatment and compliance with convention minima. without prejudice to the copyright in each of the works forming part of such collections. works of applied art. arrangements of music and other alterations of a literary or artistic works such as encyclopedias and anthologies which. compilations and derivative works. lectures. irrespective of the mode or form of its expression. adaptations. are covered under the protective umbrella of the Convention. followed by administrative provisions. painting. sculpture. by reason of the selection and arrangement of their contents. Therefore works such as choreography.found in the first 20 articles. cinematographic works to which are assimilated works expressed by a process analogous to cinematography. scientific and artistic domain. The Berne Convention (1886). words of drawing. such as books. musical compositions with or without words. sketches and three dimensional works relative to geography. photographic works. dramatic or dramatic-musical works. photographic works. architecture. painting. to which are assimilated works expressed by a process analogous to photography. to which are assimilated works expressed by a process analogous to cinematography. The conventions scope and application is very broad encompassing "literary and artistic works" which include every production in the literary. and architecture. maps. addresses. who are the nationals of member countries. engraving and lithography. engraving and lithography. and even the industrial designs find protection under the Berne Convention. sermons and other works of the same nature. 12 . painting architecture. choreographic works and entertainments in dumb show.

These provisions go a long way in preventing the plagiarism and other firms of violation of copyrights. Soviet Union and China did not joint it. b) Universal Copyright Convention The Universal Copyright Convention was signed and entered into force on September 6. India is a member of the Berne Convention. The protection given is for published as well as unpublished works. Therefore the UCC was developed as an alternative to Berne Convention to allow these countries to participate in an international agreement. The convention limits the formalities that can be required of works first published outside the territory of a member state.The Convention has established a minimum term of protection of life plus 50 years or an alternative of 50 years from publication for anonymous and pseudonymous works. or life of the author plus 25 years. For such works the only formalities allowed are that all the copies of the work must bear the symbol © accompanied by the copyright proprietor's name and the year of first publication placed in such conspicuous manner so as to be noticed easily. certain major states like the U. The contracting states are under an obligation to provide adequate and effective protection. Berne Convention requires that the author's moral rights be recognized and endure beyond the life of the author. The basis of the UCC is the national treatment and also the requirement of maintenance of specific minimum legal standards by each contracting state. Even though the Berne Convention has been the mainstay of international copyright. 13 . The developing countries have been given certain special privileges beginning with the Stockholm revision in 1967. It also recognized certain limitations to the exclusive rights such as fair use privilege and a possible limitation on the right of recording a musical works.A. The member countries must grant a minimum copyright term of 25 years from publication.S.. 1952 and it was revised in 1971 at Paris. The foreign authors of other member countries must be granted exclusive rights for at least seven years. The UCC is under and administered by the UNESCO of the UNO. A part from the authors exclusive economic rights. Similar privileges are found in the appendix to Paris text of 1971.

The Rome Convention which was completed on October 26. 1964 basically intends to protect the neighboring rights. India is a member of the UCC. reproduction and rebroadcast of their broadcasts. If not fixed on a phonogram. Any user of such phonograms has a duty to pay a single remuneration equitable in nature to artists or producers for a public performance of a phonogram. The provisions of the UCC were strengthened by the convention and protocols. 1996. 5The UCC was revised in Paris in 1971. 5 See Article XVII and Appendix declaration relating to article XVII of the Convention. The rights in respect of phonograms and performances and broadcasting are called neighboring rights. broadcasting organizations shall enjoy the right to the fixation. the Convention protects such broad-cast also. Special provisions allow the developing countries to obtain compulsory licenses under certain conditions to translate copyrighted works for teaching. if incorporated in a phonogram that is protected by the Convention. 1961 and entered into force on May 18. 1952 and at Paris in 1971. Similarly. 95 states where members of UCC. The UCC protects the economic rights of the authors effectively. and is carried by a broadcast. In so far as the broadcasting rights are concerned. of Geneva. Producers of Phonograms and Broadcasting Organizations Phonogram means a sound recording.One notable feature of the UCC is that it contains a Berne safeguard clause which prohibits a Berne Convention Country from denouncing Berne Convention and relying on the UCC in its copyright relations with members of the Berne Convention. performers are protected against the unauthorized broadcast of their public performances and enjoy the rights to a first fixation of their performance. in response to demands made by the developing countries. c) International Convention for the Protection of Performers. producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their programs in the form of phonograms. Under the Convention. 14 . The convention grants protection to performers if their performance takes place in another contracting state. producers of phonograms. As January 1. The beneficiaries of the convention are performers. It also allows reproduction of copyrighted works for use in systematic instructional activities. and broadcasters. scholarship and research purposes.

As of January 1. 15 . The purpose of copyright law is to promote the progress of science and useful arts. music and other works of authorship in order to benefit the public. The authors’ interest is secondary to that of the public. If the performance is not incorporated in a phonogram. there were 50 states which became members of the Rome Convention. by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries. the year when the broadcast took place will determine the duration of protection. 2. The eligibility to participate in the Rome Convention is that a state must have become a member of either the Berne Convention or the Universal Copyright Convention.3 COPYRIGHT RIGHT LAW IN UNITED STATES The copyright law of the United States governs the legally enforceable rights of creative and artistic works. literature. natural right in an author to prevent others from copying or otherwise exploiting his work. 1996. computed from the end of the year when the fixation was made for phonogram and performances incorporated therein. Copyright law has expanded coverage to include the idea of stimulating the creation of as many works of art. The copyright law gives authors limited property rights in their works.subject to any limitations imposed under the domestic law. but for the ultimate purpose of benefiting the public by encouraging the creation and dissemination of more works. the term will be calculated from the end of the year when the performance took place. Copyright never gives rights in the idea being expressed or in facts or other elements of the public domain which an author may incorporate into his work. Generally the protection is granted for a 20 year term. The United States recognizes no absolute. India was not a member on that date. For broadcasts.

16 . the author is the owner in the absence of any agreement. Other works include audiovisual works. pantomimes and choreographic works. In case of joint work. and sound recordings by means of digital audio transmission. lease or lending. To reproduce the work in copies or phone records. First Owner of Copyright The author of a work is the initial owner of the copyright. pantomimes and motion pictures and other audiovisual works. To publicly displays the work in the case of literary. b. dramatic. The distinction between "idea" and "expression" is a fundamental part of U. pantomimes and pictorial.S. graphic or f. An important limitation on the scope of copyright protection is the idea/ expression. dramatic and choreographic works. graphic and sculptural works. To distribute copies or phone records of the work to the public by sale or other transfer of ownership or by rental. Ownership of copyright in a collective work. the authors of a joint work are co-owners of a single copyright in the work. To prepare derivative works based upon the work. while the copyright law protects the expression of an idea. or separate copyright works then. derivative works.The United States copyright law protects "original works of authorship" including literary. musical. e. musical. musical. architectural works etc. A collective work is a collection of independent. compilations. artistic and certain other intellectual works. This protection is available to both published and unpublished works. Exclusive Rights of Owner of Copyright The owner of copyright has exclusive right to do and to authorize others to do a. it does not protect the idea itself. To publicly perform the works in the case of literary. law. pictorial. sound recordings. dramatic and choreographic works. c. d.

Rights of the Owner The owner can assign the work to any person for further work. it is an exclusive right and exclusive license require the transfer to be in writing. that the dependent copied the protected work. Damages give choice of recovering i) their actual damages and any additional profits of the defendant. Infringement It requires a protected work. Registration with the copyright puts the copyright holder in a better position if litigation arises over the copyright registration is necessary to obtain statutory damages in case of infringement.Registration of Copyright Copyright in United States automatically attaches upon the creation of an original work of authorship. the registrant must complete an application form and send it. Where the infringer is government then injunctions are not available and only monetary damages can be seeked. Remedies Civil remedies include injunctions and damages. Duration of Copyright Works created in or after 1978 are extended copyright protection for a term defined as 70 years after the death of the author. Injunction may be both preliminary and permanent. Criminal Penalties 17 . Only protected works that the infringed can be claimed remedy for infringement. that the dependants copying of the protected. along with the filing fee and copies or phone records of the work to the copyright office. ii) statutory damages equitable relief can be claimed and both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright. If the work is for hire then copyright persists for 120 years after creation or 95 years whichever is shorter after publication. To register.

In addition to civil remedies the copyright act provides criminal sanctions for willful infringement a) a fine of not more than $500. Authors Rights The statute was the first to recognize the legal right of authorship. b) a fine of not more than Si million and imprisonment for not more than 10 years. or both for repeated offences. At the end of the 21 years granted by the statute the concept of literary property was still a booksellers rather than author.K The origins of Copyright Law in most European Countries like in efforts by government to regulate and control the output of printers. It also provided a 21 year copyright term to books already in print. 18 . The 14 year copyright term could be renewed for another 14 if the author was still alive after the first term expired. came to an end when parliament decided to not renew the act after it lapsed. In the 16th century the stationers company was given the power to require all lawfully printed books to be entered into its register. an understanding emerged that copyright originated in author's rights to the product of his labour. It also granted 21 years of protection for any book already in print. In England the printers known as stationers formed a collective organization. the stationers company.000 or imprisonment for not more than five years or both for first offense. While the statute established the author as legal owner. 2. and so providing the basis for the development of authors copyright. In the 200 years following the statute of Anne UK copyright law was developed through legislations. This meant that the stationer's company achieved a dominant position over publishing in 17th century England. But the monopoly granted to the stationers company through the licensing Act 1662. Only members of the stationers could enter books into the register. The long title of the statute as the world's first copyright statute if granted publishers of a book legal protection of 14 years with the commencement of the statute.4 COPYRIGHT LAW IN U. but it did not provide a coherent understanding of authorship or author's rights.

Berne convention for the protection of literary and artistic works. according to the changes in the society. Hence many amendments have been made the copyright act till now from the date of enactment. An orphan work is a work which is under copyright protection. The major changes made by the 1914 Act were. The original creator may be unknown. copyright 1911 as its first schedule. perform or publish a translation of the 19 . Second. reproduce. UK signed Berne Convention and passed the international copyright act 1886 for Great Britain in order to fulfill the obligations to foreign authors that arose upon the UK ratifying the Berne Convention on September 1887. The 1914 Act The 1914 Act was a short statute of fifteen sections which annexed virtually the whole of the U. or where the creator is known it is unknown who represented them. first. it modified the scope of the term of copyright. but it is difficult or impossible to contact the copyright owner. in this writer's opinion.K. it introduced criminal sanctions for copyright infringement (Sections 7 to 12). The amendments made to copyright act in India are discussed below. copyright tribunal should be responsible for granting licenses for the use of orphan works.K.5 COPYRIGHT LAW IN INDIA As the law is not static it has to be changed. while if the copyright has little value the holder has no real incentive even to respond to enquires. It made a few minor omissions. In U. So also copyright law also changed in order to suit the changing needs of the society. In 2008 the libraries and archives copyright alliance stated that it believes that the majority of copyright works have little commercial value after a few years from publication because the material was out of print. under section 4 the "sole right" of the author to "produce. or sales were negligible or not significant. Now amendment of copyright bill 2010 is pending. It describe the orphan works problem as "unsurprising" since if a copyright remains valuable the holder has a strong incentive to make him or herself known. 2.

The author's novels.2. revered by the nation.D. Pt. The language of the Act might suggest a laudable policy of promoting wider diffusion of Indian works in one language into other Indian languages. in translation sold thousands of copies. generally. This is not entirely devoid of political significance as Hindi was emerging as a dominant 6 This observation is borne out also by the general approach to protection of property rights in the great Indian codes in the late nineteenth century. P.2..Niketan.6 The modification of term of copyright for translation rights cannot be explained by any reference to dominant characteristic of colonial policy.907 (1956). R.work shall subsist only for a period of ten years from the date of the first publication of the work. Publishers in Hindi and other languages were making good money out of the translations of his works.K. But whatever the intention. right to property over rights to personal freedom. Sinha "Dinker" argued that this provision has "worked to the utter detriment of the authors".7 It appears that mostly the Hindi language publishers benefited a great deal from the modification of the term of copyright regarding the translations. while the author was yet alive. Something like this happened in the case of Gurudeva (Tagore). a consideration which might have appeared distinctive to India as compared with U. was in his extremely old age touring the country for money to support the Shanti. however. Vesting violations or property rights with criminal sanctions can probably be understood as a part of general colonial legal and political policies which sought to protect. Referring to the two distinguished Bengali authors he observed Most of the novels by Sarat Chandra Chatterjee were translated in Hindi..”The author. 3. but the author did not get a pie out of the sake. the impact was disadvantageous to the authors and a boon to publishers. There might also have been the desire to promote the growth of publication industry in numerous Indian languages. but the poet. 7 The report of the joint select committee. 20 .proceeds. “The Gazette of India Extraordinary. This can be seen from the following observations in a hot of dissent when the continuation of the same provision was urged by the joint select committee of the Indian parliament in 1956. retained her "sole rights" if within the period of ten years she published or authorized publication of her work a translation in any language in respect of that language.

21 . The heavy hand of UK law still lies on Indian creative works despite the reformulation of the law in 1957.R. It is hoped that his approach will prevail in course of time. But it is idle to conjecture. AIR 1924 P. At the same time it also generated a ouris dependencia Indian judicial decisions as well as forensic styles have had perforce to rely on UK recedents.language in Northern India. precedents in the area of copyright law than in any other. 1980). The bill seeking to revise the entire law was introduced in the Rajya Sabha on 1st October 1955. The slavish imitation of foreign precedents has occasionally led intrepid Indian justices to remind the bar and the bench that the 1957 act is made by "a sovereign legislature of this land" and the its interpretation "must be based upon the object of the legislation and the language used" and that the "historical roots" of the Indian law in UK law of copyright should have no higher function than that of providing an "aid to thinking". Equal priority was attached to other domains of the intellectual property law.75. 10 Equally high priority was attached to revision of the patent Act 191. but their reformulation proved difficult and time consuming. The expedition and priority with which the law revision was accomplished is indeed remarkable. the bill was enacted in about eighteen months time on 4 June 1957.C. Suresh Chander Deb8 and Macmillan V.L. The early phases of the transplanted copyright law generated decisions like Macmillan V.1951.R. and that the umbilical cord with the British judicial law would be served.. 1890. 10 8 9 I. Cooper9 which have become locus classicus of the law of copyright. The 1957 Act The 1914 act was continued with minor adaptations and modifications till the 1957 act was brought into force on 2 January 1958. 17 Cal. Judicial interpretation is perhaps most heavily influenced by U. “Role of industrial property law in promoting indigenous inventive and creative activity” (WIPO. especially when we recall that the bill was introduced within a few years of attainment of independence and passed in the seventh year of the republic.C. Upendra Baxi. A sociopolitical history of colonial copyright law must probe this aspect further. the law was revised only in 1970.K.

new and advanced method of communications rendered modernization of the law necessary. it made major innovations which were ultimately enacted. In this sense. For example.A number of factors impelled this early revision. making registration of copyright a precondition for infringement proceedings. on similar grounds. But the committee's views prevailed on other vital matters. 13 Misra Bandhu Karyalaya Vs. the 1957 Act was the first truly Indian legislation 11 12 See the statements of objects and reasons to the bill. and more important. The committee also negatives the bills proposal. the need for an "independent selfcontained law" was also felt in the light of the experience of the "working" of the 1911 Act. the performing right society (London). the original proposal in the bill prevailed here over the committee's formulations. It comprises ten pages of majority report."11 The Indian legislators had before them the report of the English Copyright Committee and legislative proposals based thereon. and six notes of dissent totaling seven pages. the 1914 act did not accord with the 1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright Convention. the original proposal of the bill to reduce the term of copyright for life of the author and twenty five years post-mortem was voted by the committee (despite a note of dissent) on the ground that India must fall in line with international conventions. on which its proposals were not accepted. Third. was not in any sense a replication of the English legislative proposals. Second.. in view of powerful dissents referred to earlier. The report of the select committee appears to be among the briefest in the annals of Indian parliament. British Copyright Council and the Columbia Gramophone Company Ltd. Supra note (34 A). 12but. in their optional and obligatory features. the select committee had evidence of twelve organizations. by the relevant International Conventions. AIR 1970 M. Koshal. 22 . as it emerged. 261 to 267. Fourth. they had also before them the models provided. Perhaps the only significant matter.P. of "the growing public consciousness of the rights and obligations of the authors. including the international confederation of societies of authors and composers (Paris). pertained to a ten year term of copyright for translations.. in many senses. First it was clear that continued existence of the 1911 act through the 1914 act was unbecoming to "the changed constitutional status of India".13 The Act.

The general scheme and the principal features of the 1957 Act are as follows Chapter I. the joint select 23 . The Act was not sufficiently far-sighted. A principal function of the office is to maintain. a register of copyright. It creates. The ministry of education and social welfare is the administrative ministry overseeing the copyright office. VII and X with powers and functions of the registrar of copyrights and the copyright board. performing rights societies’ relinquishment and registration of copyright and related matters. In addition. IV. Chapter X with registration of copyright. All of them involve determination of claims of reveal rights and liabilities. The orders are to be laid before parliament and subject to modification by it. III. Chapter XI with infringement. In many respects it is drafted in ways which make it meaningful only to judges and lawyers and sometimes after well over two centuries of the subjection to the not even to them. to entertain and deal with applications for compulsory licenses and to inquire into complaints of importation of infringing copies. Chapter XI1-XIV with civil and criminal remedies and Chapter II. V deal with copyright and its ownership. The registrar performs judicial functions in relation to these tasks. and an appeal is provided from his decision to the copyright board. But the fact remains that the country had its own law of copyright for the first time in contemporary history. In addition to the act and the rules. does not protect the right of the performers adequately. Chapter IX with international copyright. The orders have to be published in the government gazette. we must note that the government is empowered to make an order directing that any or all the provisions of 1957 act may apply to copyright in foreign works and in works of certain international organization. The rules deals with matters of procedure primarily in matters like applications of licenses for translations. the copyright office and the copyright board. two distinct institutions. the government has enacted copyright rules under section 78 of the Act. for the first time. it. The 1957 act makes certain administrative arrangements for implementation. A short special Chapter VIII deals with the rights of broadcasting authorities. The Board has a number of essential functions under the Act. The Act is divided into fifteen chapters and contains seventy nine sections. for example. in all relevant particulars. VI.'imperial' law.

it is important in any design of revision of the law to ascertain to what extent this objective has been actually attained in practice.I. it is important in any design of revision of the law to ascertain to what extent this objective has been specifically created with a view to assisting authors. Application for licenses to produce and publish a translation of literary or dramatic work in any language [section 32].committee on the bill was right to insist that the board should be headed by a chairman who is a "judge of Supreme Court or a high court" or is so qualified to be a high court judge. is over due. Vol. J.I. and individuals may file proceedings in the appropriate zones where they voluntarily reside or carry on business or work for personal gain. charges and royalties announced by performing rights societies [section 33-36]. Complaints that certain copyright works are unreasonably withheld from public [section 31]. No.4. 1. An empirical investigation of the work load and characteristics of its decision . 1957 conform to the provisions of the two International Conventions on copyrights. Whether any literary.28. 2.making process. because both institutions have been specifically created with a view to assisting authors. Rectification of the register of copyrights [section 50]. 498-504. dramatic. are issued in "sufficient quantities" with in the meaning of section 3[section 6(a)].14 AMENDMENTS TO THE ACT The basic features of the Copyright Act. Whether the term of copyright is shorter in any other country as compared to the term provided under the Act [section6(b)]' 3. 4. Objections of tariff of fees. or records. 6. 24 . namely (i) Berne Convention 14 Copyright Law and justice in India (1986). The Board is required to circuit in zones in various parts of India. 5. musical or artistic work.L. The principal functions of the board are to consider and determine.

and (ii) The Universal Copyright Convention. India played an important role in the discussions leading to the concession. 2. P.41-43 foreign works required for instructional purposes. 1983 with the specific purposes of (a) incorporating the provisions of compulsory licenses for translations and reproduction. Kala Thairani. which were revised at Paris in 1971. 1957. To provide compulsory licensing for the translation of a foreign work after the expiry of three years from the publication of the work and if the translation of the work is in a language not in general use in any developed country.15 a. and Removing administrative drawbacks and other lacunae experienced in the administration of the Copyright Act. The bill provides. namely 1. 15 Kala Thairani. 1983 Amendment In August 1983. among other things. Allied publishers. 1. for the following amendments the Act to give effect to the above proposals. Copyright The Indian Experience. the copies are not available in India for the same or similar work. scientific or artistic works for the purposes of systematic instructional activities if. It provides certain special concessions in favour of developing countries to enable them to grant compulsory licenses for translation and reproduction of foreign works required for educational purposes in accordance with the prescribed procedure. after the expiry of a period of one year from such publication if such work is required for the purposes of teaching. India is a member of both the Conventions.41-43. 1987. scholarship or research. copyright The Indian experience. Providing adequate protection of author's rights. 1987 pp. Allied Publishers. the parliament of India enacted the Copyright (Amendment) Act. after the expiry of certain periods (which will vary depending on the subject-matter of the works) from the date of the first publication of that edition. 25 . To provide for the compulsory licensing of the reproduction of any edition of a foreign literacy.

all the countries started to make efforts to meet the challenge by taking stringent legislative and enforcement measures. It is proposed to prescribe the term of copyright in works owned by bodies corporate as fifty years from the beginning of the calendar year next following the year in which the work is first following the year in which the work is first published as in the case of government works. To provide for copyright in lectures. In the contemporary world. 1984 Amendment As the piracy has become a global problem due to the rapid advances in technology and has assured alarming proportions all over the world. This problem of piracy and necessity for taking sufficient anti-piracy measures were also voiced by members of parliament at the time of the consideration of the Bill to bring in the 1982 amendment. while granting such permission. namely (i). b. addresses etc. The royally could be deposited in the public account of India. 7. piracy of the printed word. (ii) piracy of sound recordings (iii) piracy of cinematograph films. fixation and reproduction of audio programs. The emergence of new techniques of recordings. 6. 5. any person wishing to publish the material or a translation thereof may advertise his proposal and thereafter apply to the copyright Board for permission which. 4. The object of the pirate in all such cases is to make quick money and avoid payments of legitimate royalties and taxes.3. It is proposed to provide assignments of copyright from authors to publishers and to empower the Copyright Board to decide disputes arising out of such assignments which may extend to permitting the author to withdraw from the assignment. Broadcasting authorities are also being permitted to translate foreign works for broadcasting for the purpose of systematic instructional activities. combined 26 . delivered in public and for the publication of the entries made in copyright register. It is proposed to provided that in the case of unpublished works where the author is either dead or unknown or the owners of the copyright cannot be traced. would fix and appropriate royally. mainly there are three types of piracy.

The loss to government in terms of tax evasion also amounts to cores of rupees. 5.000/- 2. 1973. 4. with a minimum of Rs. and a fine upto Rs. In view of those circumstances. several writ petitions seeking a stay of amending law were filed in a number of high courts across the country and in the supreme court of India. applicable to video-films and computer programs. To increase the punishment provided for the infringement of the copyright. This 1984 Amendment came into force on 08-10-1984 immediately thereafter.65-67. 3.with the advent of video technology have greatly helped the pirates. namely.43 at P. video films and containers. To require the producers of records and video films to display certain information in the record.16 a Division Bench of the High Court dismissed the appeal and observed "A legislative enactment is intended to give effect to some policy and implement it private litigants or persons who happen to be beneficiaries of such a policy enacted in the form of legislation can really have no say in a matter which is 16 AIR 1986 Mad. 1957 to combat effectively the piracy that is prevalent in the country. To provide for the declaration of the offence of infringement of copyright as an economic offence so that the period of limitation provided in the code of criminal procedure. thereof. The Bill of the proposed 1984 amendment contained the following objects 1. 27 . To specifically make the provisions of the Act. with a minimum punishment of imprisonment of 6 months. To provide for enhanced punishment in case of second and subsequent convictions. 2 lakhs. it was proposed to amend the Copyright Act. On an appeal filed by the aggrieved applicant in film Federation of India Vs Union of India. for offences will not be applicable to this offences. 50. imprisonment of 3 years.

... the copyright Bill was introduced in the parliament. to which government alone was necessary party to support its own legislation. taking into account the difficulties expressed by different groups of copyright owners and others. a working group was set up in 1987 by the government to study the provisions of the Act and to recommend suitable amendments. the experience gained from the administration of the existing law 28 . It is primarily and wholly for the government to support its own legislation though in case the court wants some assistance the court can permit a party to intervene but that is for the limited purpose. The purposes of the proposed legislation were explained as under. in modern society.exclusively within the domain of the government activity.. cultural and economic activity copyright law promotes the creation of literacy. The law relating to copyright and related rights has been under comprehensive review of the government for some time. c." The Court refused to accept as a principle that a beneficiary of a statute is entitled to be heard in addition to the state or Union government as the case may be in support of a statutory enactment.. an indispensable support for intellectual.. cinematograph films and sound recordings by providing certain exclusive rights to their authors and creators. dramatic and musical works. 1994 Amendment It was observed that the anti piracy provisions incorporated in the 1984 amendment had not worked effectively.. In July 992.. taking into consideration the advances made in communication technology such as video. satellite and other means of simultaneous communication and to fulfill India's obligations as a signatory to the Berne convention and the Universal Copyright Convention.. artistic. "Effective copyright protection promotes and rewards human creativity and. of assistant to the court for deciding the dispute before it " Where the validity of a statute ..... is challenged a private litigant who happened to be the beneficiary of the policy envisaged under the Act cannot be allowed to be joined as a party because what is sought to be done is not to put the law in motion but to make an attempt to defend a legislation..

CHAPTER-3 COPYRIGHT . copyright protection can be secured for all binds of creative works (literary. musical and dramatic works and so on). the U. dramatic works and to the cinematograph films and records". protection. seeking to promote collective administration of the rights of authors. However. and power to restrict rights of foreign broadcasting organizations and performers. d. artistic. (iii) Assignment of copyright by an author or artistic to protect the interests of both assignor and assignee. In general. A large number of the provisions in the amending legislation are self-explanatory and clarificatory in nature. inserted certain Government to apply the provisions relating to Broadcasting organizations and performs to broadcasting organizations and performers in certain other countries. composes and other creative artists. and (iv) Computer programs. Salient features of 1994 Amendment The amending act provided for (i) performers rights protection covering any visual or artistic presentation made live by one or more performers. 29 . cinematograph films and sound recordings. increased the term of copyright of performers from 25 to 50 years.ANALYSIS OF THE LAW Section 14 of the 1957 Act defines copyright as an "exclusive right by virtue of and subject to the provisions of this Act" to do and authorize doing of any number of prescribed acts in relation to literary. meaning of copyright in respect of a computer program.S. artistic.and the situation created by various technological developments that have taken place". (ii) copyright societies. 1999 Amendment The Copyright Act was again amended in 1999 which amended definition of 'literacy work'.

Inc. sermons. New York. 30 . Nasri “Crisis in Copyright” Marcel Dekker. 4) Lectures. 2) Books including composite newspapers.copyright code. gazettes and other compilations. title 17. including composite and cyclopedic works.. including prints or labels 13) Used for articles or merchandise 14) Motion picture photoplays 15) Motion pictures other than photoplays 16) 17) Sound recording Sculptures 18) Audio-visual works 17 William Z. dictionaries. lists the following classes of works that can be copyrighted 17 1) Books. models or designs for works of art 8) Reproduction of a work of art 9) Drawings for plastic works of scientific or technical 10) Character 11) Photographs 12) Prints or pictorial illusions. section 5. 3) Dramatic or dramatic-musical compositions. addresses (prepared for oral delivery) 5) Musical compositions 6) Maps 7) Works of art.

It also defines "copy" as "an imitation of anything. The unabridged Webster's third international dictionary defines a photocopy as "a negative or positive photographic reproduction of graphic matter (as drawing or printing)". Oxford Clarendon press. “Profiles “Xerox Xerox Xerox Xerox” The New York 63 46 (April 1. P. Almost all works created after 1978. Dick Company of Chicago a former lumberman. 978-979. literary or artistic production of which he is the author". Black’s Law Dictionary.18 Black's law dictionary defines "copy" as a transcript or a double of an original writing.B. P. for a certain term of years. The oxford English dictionary defines "copying" as "the action of the verb copy". Vol. to an author.20 18 19 Oxford English Dictionary. (or his assignee) to print. 3. 6th ed. Paul West 1951. 405. copy reflects plenty and abundance (copious quantity)". even those with no mention of copyright.19) Web pages and computer programs. a reproduction of an original and in a sense. The moral justification for providing legal protection is based as on the principle that a man is entitled to the fruits of his brain as much as he is entitled to the fruits of his mechanical labour.1 MEANING OF COPYRIGHT Copyright is defined in the concise oxford dictionary as "the exclusive right given by law. 31 . 1967). who became bored with copying his price list by hand. The universal declaration of human rights says "Everyone has the right to the protection of the moral and material interests resulting from any scientific. 20 John Brooks.11. St. obtained the rights to produce and market Edison's mimeograph.19 Copying can be done by hand or by a machine. publish and sell copies of his original works".Dick of A. 1933. composer etc. The first mechanical duplicator of documents was invented late in the 19th century by Thomas Alva Edison. have copyright protection. Mr.

F. P. It also defines "copy" as "plenty". V. But in the arts of drama and music. Minn. 23 Mc Connor V. Section 14 of the 1957 Act defines copyright as an "exclusive right. Longman(1777). Vol."23 The commercial interest of book publishers had called for a "copyright"24 and much the same applied to artistic works. a copy is "a reproduction or duplication of a thing or that which comes so near to the original as to give to every person seeing it the idea created by the original. P. artistic and dramatic works and to cinematograph films and records. (S. It was also a favorite Victorian habit to call a person a "pale copy" of another. Chap. architecture. composers and their commercial associated sought a "use" right upon each public performance of the work. choreography and broadcasting. 978-979. 19(1).D.11. P. Despite this clear formulation. Gramphone Co. Supp.3-5. Cawardine (1934). 623. 26 CA 1911. On the other hand. New York. West 1951. 738-744. and so forth).450. 49. by virtue of and subject to. abundance. 4th ed. also to prevent public performances of them). which is both in accurate and 21 22 Oxford English Dictionary. St. Ch.The Oxford English Dictionary21 provides several definitions for the work "copy" (to imitate. 25 Copyright The development and exercise of the performing right (1980). P. The 1911 Act gave the producers of sound recordings their own exclusive right to prevent the reproduction of their recordings (and as the courts later held. Kaufman. Play wrights. 32 . 405. COW.26 Copyright protection gradually expanded to cover other domains of intellectual creation like sculpture. judges and jurists often speak of copyright as a kind of "negative right". Black's Dictionary defines copy as "a transcript or a double of an original writing. In 1833 this distinct performing right was given in dramatic works 25 and in 1842 extended to musical works. The same dictionary makes it clear that during the middle ages there was an area of deceit associated with the work "copy". exploitation occurred as much through performance as through the sale of copies. Black’s Law Dictionary.22" And as it related to the law of copyright. the provisions of this Act "To do and authorize doing of any number of prescribed acts in relation to literary. Oxford Clarendon press. 1933. without reference to an original. S. 1943). 24 Back V. Paul. From the late 16th century until Victorian times "copy" and "counterfeit" were almost synonymous.

15(2)). artistic. Besides-concurrent registration of both trademark and copyright in relation to the same matter often causes understandable.29 Time is certainly ripe for Indian Parliament to provide for exclusion of trademarks from the scope of Sec. Since the registration of copyright is relatively simple and expeditious process as compared with trademarks. receiving thus dual protection. 33 . Garg 7 Co. 29 Khemraj V. for example.28 This exclusion is understandable. 391 to 393. for each category of work. which is also capable of registration as a trademark. cinema films and records are in some respects similar. copyright constitutes property rights in personam and in rem. the office of the registrar of copyright is inundated with registration application for copyright in marks as "literary" or "artistic" works. dramatic and musical works. The rights of authors of literary. owing its existence and stature within the four corners of the Act. What is not so readily understandable is the fact that by necessary implication it is legally permissible to register or claim a copyright in a trademark. AIR 1955 Mad. Gopalakrishnan. violation of which can be redressed under the provisions of the Act.15 of the Act. It is also important to stress at the outset that copyright is defined as a statutory right..misleading. but avoidable. AIR 1975 Delhi 135. It bears reiteration that the set of rights subsumed under the rubric "copyright" is primarily defined in affirmative and positive sense. Definition of Copyright 27 28 Govindan V. Copyright in a design capable of being registered under the patents and designs act shall cease as soon as the article to which the design is applied has been reproduced by an industrial process (Sec. The meaning of copyright.27 Even so the Act be section 15 specifically excludes designs which is capable of being registered under the Indian patents and designs act 1911. standards apt for judging passing-off action for marks tend to rub off to the determination of copyright infringement in the same proceedings. judicial confusion where. is quite extensive especially when we note that the definitions of most genres of work is inclusive rather than exhaustive and that copyright protection extends to all kinds of work including those which represent "originality at vanishing point".

14 "Copyright" means the exclusive right subject to the provisions of this Act. c) in the case of an artistic work. to do or authorize the doing of any of the following acts in respect of a work or any substantial part there of namely a) In the case of a literary. ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer program. v) to make any translation of the work vi) to make any adaptation of the work vii) to do. iv) to make any cinematograph film or sound recording in respect of the work. not being a computer program. b) in the case of a computer program i) to do any of the acts specified in clause (a). i) to reproduce the work in any material form including the storing of it in any medium by electronic means. in relation to a translation or adaptation of the work. iii) to perform the work in public. Sec. any of the acts specified in relation to the work in sub clauses (i) to (vi). dramatic or musical work. or communicate it to the public. ii) to issue copies of the work to the public not being copies already in circulation. Provided that such commercial rental does not apply in respect of computer programs where the program itself is not the essential object of the rental. 34 .Section 14 of the Act gives a comprehensive definition of term "copyright".

any copy of the computer program. regardless of whether such copy has been sold or given on hire on earlier occasions. e) in the case of a sound recording i) to make any other sound recording embodying it. iii) to communicate the film to the public. vi) to make any adaptation of the work. any copy of the sound recording regardless of whether such coy has been sold or given on hire on earlier occasions. ii) to sell or give on hire. ii) to sell or give on hire. iii) to communicate the work to the public. or offer for sale or hire. ii) to sell or give on hire. d) in the case of a cinematograph film i) to make a copy of the film. iii) to communicate the sound recording to the public. any copy of the film. v) to include the work in any cinematograph film. 35 . vii) to do in relation to an adaptation of the works .i) to produce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work. or offer for sale or hire. iv) to is copies of the work to the public not being copies already in circulation. or offer for sale or hire. including a photograph of any image forming part thereof. regardless of whether such copy has been sold or given on hire on earlier occasions".any of the acts specified in relation of the work in sub-clauses (i) to (iv).

if they are already not in circulation. in the case of literary.2 SUBJECT MATTER OF COPYRIGHT 36 . • • • • • 3. to perform the work in public. ii) It authorizes doing of different acts in different categories of works. and to do.Analysis of Statutory Meaning The definition and meaning of copyright given under section 14 can be analysed as follows i) It means an exclusive right. in relation to a translation or an adaptation of the work. or communicate it to the public. to make cinematograph film or sound-recording in respect of the work. any of the acts mention here in above. to make any translation of the work to make any adaptation of the work. iii) It means. to issue copies of work to the public. dramatic or musical work not being a computer program The exclusive right • • to reproduce the work in any material form including its storing.

37 .

craftsmanship. The extent or amount of 'originality' in expression or material 30 31 Macmillan Company Ltd. 38 . Obviously. What is protected is expression of thought the form. not to 'create monopoly in ideas'. as elsewhere does not refer to ideas but rather to the manner and material forms of their expression. copyright law protects the author against dishonest and willful misappropriation or theft of the author's efforts. labour and judgment. and (c) sound recording.33 Originality for the purpose of copyright law relates to the expression of thought but such expression need not be novel. plan or arrangement of presentation as testifying to the investment by the author of mental faculties. The requirement of 'originality' in Indian law. competence. R. AIR 1971. or more colorfully (but less precisely) it should not amount piracy (or to vary the usual metaphor a little. 32 N. In other works. order. but not copied from other work.32 The objective of copyright. The requirement of 'originality' mentioned in the section does not refer to ideas but to the manner and material forms of their expression.G. K&J Co-Op. hijacking) of another's skill. then the notion of 'originality' does not even entail a modicum of novelty or creativity. Raghunathan V. knowledge. skills. may have a copyright unless it is directly copied or evasively initiated from another's work.83 Ibid at P. Musical and Artistic works Copyright subsists. the protection aims at prevention of unlawful reproduction of dealing with the manner and material form in which ideas are expressed. (b) cinematograph film. rather. In a sense. labour and capital in the production of any work. Bom 48. AIR 1978 SC 1613 at 1627 33 Ibid.30 Any thing written by an author by his own skill. Ananda Vs. Vs. under section 13.Copyright in Literary. AIR 1924 PC 75 at P.T. craftsmanship. The word original does not mean that the work must be the expression of original or invented thoughts. musical and artistic works. dramatic. labour and capital. Dramatic. the requirement of originality is an elliptical way of expressing the idea that the work should not be a substantial copy of another work. competence. in India is stressed. in three classes of works (a) original literary. formulation.81.31 Rajasthan High Court had held that the 'original work' does not mean that the work must be the expression of original or invested thought. Delux Films.

rules of games.34 The law of copyright it has been well said protects originality even at "its vanishing point".38 News paper telegrams. 1990 Raj. Govindan V. as including the computer programs.601. i. University Tutorial press36 and also in an Indian case of Agarwal Publishing House Vs. v. skill and judgment.35 Literary Works Literary work has been defined under section 2(o) of the act. Dictionary involving considerable amount of labour. Board of Education (1978)1 PLR 83. sermons and sayings of religious preachers. The analysis and presentation of facts in historical books etc. ii. 36 University of London Press Vs. tables and compilations including computer data bases. rules of foot ball compilation and tallies for bridge parties. taking into account the expression of the idea in that work. 39 . Some illustrations of original literary works. In the case of University of London press Vs.39 iii. the test is that of originality. 39 Under Sec. Sec. Herbert (1980) RPC 193. The judiciary interpreted the literary works as which is expressed in print or writing irrespective of the question whether the quality or style is high.form may be very small but that small amount is protected by law. AIR 1955 Mad 391 at 393 Ibid. Dissertations. vi. To determine whether a literary work is capable of protection.2(h) of the Act. Kiran Chandra Mukhopathyay. Board of High School and Intermediate Education.2(ffc) of the Act for definition. Mohan lal Gupta Vs. 40 Satsang Vs. 1916 2ch.40 iv. 37 AIR 1967 All 191. 34 35 Examination question papers Head notes of law reports and other case reports. S. University Tutorial Press. Gopalakrishnan. Writings.37 The courts have held that even examination papers would fit in the definition of literary work. 38 Mavens Crafts S.

it was held by Supreme Court's decision in Indian Performing Rights Society (IPRS) vs. it must be printed.17. does not fall within the categories "pieces of recitation".43 Copyright in Computer Program In case of computer programs. or offering for sale. that an actor in a cinema film may not claim any copyright in his acting. "choreographic work" or "scenic arrangement in a dumb show." Performance of a film actor would not qualify as a dramatic work. copyright extends to i) Doing any of the acts like reproduction. Vs.. 43 Gramaphone Co. and ii) Selling or giving on hire.Dramatic Works The "dramatic work" includes any piece for recitation. Moreover such acting. 1996 PTC 252(Del) 40 . Dev Anand. reduced to writing or otherwise graphically produced or reproduced. storage and translation etc. The definition of 'dramatic work' a motion picture cannot be regarded as a piece of recitation or a 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. the court held.. which can be done in respect of the literary. The Bombay High Court has recently held that in Fortune films V. Eastern India Motion Picture (EIMP)42 Musical Work Copyright protection in musical work. choreographic work or entertainment in dumb show. Delhi High Court held that Musical work is not merely a combination of melody and harmony or either of them. dramatic or musical works. AIR 1977 SC 1443. Artistic Works 41 42 AIR 1979 Bom.41 in view of the specific exclusion of the cinema films ran the definition of a dramatic work. means a work consisting of music and includes any graphical notation of such work. Super Cassette Industries.

scheme or get up or layout or arrangement of any alphabets or features is undoubtedly an artistic work. all these works come under artistic works to claim protection they must be original of hire any computer program whether in circulation or not. Delhi High Court held in a recent case that list of clients and addresses designed by an advocate or law firm amounts to a computer data base.17. Indian copyright act legislation is advanced in protecting the computer programs from piracy and it is possible through the Amendment in 1994. an engraving or a photograph. It was defined under see 2(ffc) of copyright Act. 46 Indian Performing Rights Society Vs. Dev. The drawings and brochures prepared by a scientist or any other technical expert. AIR 1979 Bom. The distinctive features including the style of the letters or alphabets are also capable of protection under copyright. vs. Microfibres Inc. drawing. Artistic works cover a wide range of works i. 46 Video tapes come within the 44 Glaxo India Ltd. Copyright in Cinematograph Film A cinematograph film includes sound track of a film and the sounds embodied in a sound track which is associated with the film. expressed in words.e. 2006(3) Raj 112 (Del). 41 . sculpture. and it is protected under literary work under section 2(o) of copy right Act. 2002(2) Ray 275. 2006(1) Raj 301(Del). Akay Pharma Pvt. codes.Any colour. Adebare.45 Amendment of 1994 included the works of the film artist is protected under the head "performer's right". schemes or in any other form including a machine readable medium. 44 When once copyright is claimed under designs act then it cannot be claimed protection under copyright for artistic work. Anand. 1957. Ltd. capable of causing a computer to perform a particular task or to achieve a particular result. Eastern Indian motion picture Association AIR 1977 SC 1443 at P. Giridhar and Co. 45 Dilject Titus Vs. painting... Vs. See also Fortune Films International Vs. Computer program means a set of instructions.1450. Alfred A.

47 Video films are deemed to be works analogous to cinematograph. 1957 as submitted by the Copyright Act. the author of the work. State of Tamil Nadu. as i) 47 48 In relation to a literary or dramatic works. are cinematograph and both are instruments of representation of movie pictures or series of pictures and that are capable of use for the reception of signs. signals. w. Copyright in Sound Recordings Sound recording means a recording of sound from which such sounds may be produced regardless of medium on which such recording is made or the method by which the sounds are produced.1995. Mad. literary and dramatic works available in the form of "pre-recorded" phonograms.3 OWNERSHIP OF COPYRIGHT The author of a work shall be the first owner of the copyright. Vs.f.2(xx) of the Copyright Act. address or speech delivered in public. music composers and manufacturers and producers of audio and video cassettes normally become the victims of piracy in case of sound recordings. Indian Performing Rights Society Ltd.49 Singers. vinyl disc. 10. which are produced by the recording industry. giving in hire or offering for sale or hire any copy of the film. or other devices embodying sounds which are capable of being reproduced there from are protected copyright works. compact disc. Selling. Copyright protection extends to making a copy of the film. AIR 1977 SC 1443. 49 Under Sec. Any "record" such as a tape. Entertaining Enterprises. government work and work made or first published by or under the direction or control of any public undertaking. irrespective of its earlier sale or hire. 1994 Sec.48 Video and T. 42 .V. photographs. compact cassette. There are also sound recordings of musical. Ownership Of Copyright Author has been defined under sec. taking a photograph of any image forming part of the film. images and sounds.e. AIR 1984 Mad 278. 2(d) of the Act. and communicating the film to the public.05. dramatic or artistic works.expression cinematograph film in view of the extended definition in the Act. ownership of copyright exists in literary. 3.2.

(b)(ii). v) In relation to a cinematograph film or sound recording. 43 . 2. Literary works Rights 1.14 (a)(vii). dramatic. Right to publish the work S. Ownership in Government works. the producer. the composer. 3. (b)(i). musical or artistic work which is computer generated. When the work is produced by the member of an undivided joint Hindu family. In all these works author is entitled to the first owner of the work. Right to make any adaptation of the work S. and vi) In relation to any literary.14 (a)(ii).50 Ownership of Copyright and rights of the owner Column A Genre a. 50 Under Sec. iv) In relation to a photograph. iii) In relation to an artistic work other than a photograph. When the work is created by joint authors then both authors are entitled to the ownership if there is intellectual contribution by two or more persons. the person who causes the work to be created. When the work is to be created. the person taking the photograph. In all these works author is entitled to the firs owner of the work. unless there is an agreement to the contrary. the artist.17(d) of the Act. Right to / reproduce the work in any material form S. though he is a member of joint family copyright is vested only to that member who had produced it.14 (a)(i). the government will be the first owner.ii) In relation to a musical work. b(iv).

4. to be seen in public. Right to copy the work. Right to adapt the work. iii. Musical works e. iv. Right to make any record "embodying the recording in any part of the sound track associated with the film by utilizing such b. v. music.14(c)(iv). Right to broadcast the work iii. Right to perform the work in public iii. engineering design. Right to cause the film. Dramatic works v. Right to make a copy of the film. Right to make sound track or recording d. Right to convert into music / record. i.14(c)(iii). Right to make a cine film.14(d)(ii). Right to publish the work in the material form. Right to reproduce the work ii. Right to use in literary work. Right to perform in public ii. Cinematograph film games and others. Right to translate the work. [S14(c) (i)] ii. 44 . ii. Right to cause the film. Right to adapt or copy the work. Right to broadcast the work. b. Artistic works 5. Right to make any other record embodying the same recording S. i. i. iii. in so far as it consists of visual images. Right to make a cinematograph film. S. c.14(d)(i) ii. i. iv. in so far as it consists of sounds to be heard in public (S. Sports / f. drama artistic work. iv. Right to communicate the film by radio diffusion S. Right to create sound track / recordings. Computer Programs iv. Sound recording sound track" S. Right to "cause the recording embodied in the record to the heard in public".14(c)(ii).

testamentary disposition (S. statutory damages and attorney’s fees will be 45 . Even though registration is no a requirement for protection. mutilations of work. Right "paternity" (that is. registration will establish prima facie evidence in Court of the validity of the copyright and of the facts stated in the certificate.20) and right to relinquishment (S. In respect of all works in the record by radio diffusion" S. which prejudice authors’ honour or reputation) (S. origin. Among these advantages are the following • • Registration establishes a public record of the copyright claim.18). • If registration is made within 3 months after publication of the work or prior to an infringement of the work. Right to total or partial assignment (S. "right to claim authorship of the work" despite assignment. Right to make sound track or recording 3. copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. registration is not a condition of copyright protection. Right to "communicate the recording embodied h. registration is necessary for works of U.57). iv.21). Right to "integrity" in works (that is. Before an infringement suit may be filed in Court.S. total or partial) iii. However.iii. ii.4 REGISTRATION OF COPYRIGHT In general. the copyright law provides several inducements or advantages to encourage copyright owners to make registration.14(d)(iii). right to object to distortions. • If made before or within 5 years of publication.

DC 20559-6000 1. two complete copies or phonorecords of the work as first published.S. when a work has been registered in unpublished form. Customs Service for protection against the importation of infringing copies. two complete copies or phonorecords of the best edition. The general requirements follow. only an award of actual damages and profits is available to the copyright owner. send the following three elements in the same envelope or package to Library of Congress Copyright Office 101 Independence Avenue SE Washington. Otherwise. if desired. • Registration allows the owner of the copyright to record the registration with the U. it is not necessary to make another registration when the work becomes published. 46 . A nonrefundable filing fee”’ for each application. Registration may be made at any time within the life of the copyright. 1978. 1978. Unlike the law before 1978. Registration Procedures Original Registration To register a work. although the copyright owner may register the published edition. A properly completed application form. Also note the information under “Special Deposit Requirements” • If the work was first published in the United States on or after January 1. • If the work was first published in the United States before January 1. 3. 2.available to the copyright owner in Court actions. The deposit requirements vary in particular situations. A no returnable deposit of the work being registered.

applications should be should be sent in the same package. Each Addendum form must be accompanied by a deposit representing the work being reviewed. Renewal Registration To register a renewal. It must also fall within a class of works determined by Register of Copyrights to have had a history of infringement prior to authorize commercial distribution. (See Note above). the top of page 2 is directly behind the top of page 1. one complete copy or phonorecord of the work as first published. if necessary Form RE Addendum. However. and 2. Forms not meeting these requirements may be returned resulting in delayed registration. send 1.g. A properly completed application Form RE and. Special Deposit Requirements 47 . deposits. head-to-head so that when you turn the sheet over. Pre-registration Preregistration is a service intended for works that have had a history of prerelease infringement. Renewal of Copyright. Complete the application form using black ink pen or type. You may photocopy blank application forms. A nonrefundable filing fee for each application. See Circular is. and fees If possible. number each package (e.• If the work was first published outside the United States. legible. Whenever possible. a work must be unpublished and must be in the process of being prepared for commercial distribution. 1 of 3. Preregistration is not a substitute for registration. To be eligible for preregistration. • If sending multiple works. The forms should be printed. on a good grade of 8V * 11” white paper suitable for automatic feeding through a Photocopier. The preregistration application is only available online. photocopied forms submitted to the Copyright Office must be clear. preferably in black ink. 2 of 4) to facilitate processing. attached to the appropriate deposit. all applications.

For information about deposit requirements for group registration of serials. or musical work published only in a phonorecord. automated databases (request Circular 65. fabrics. • If the work is in the CD-ROM format. Copyright Registration for Automated Databases). • If the work is a literary. the deposit requirement is one complete copy of the material. including deposits for revised programs and provisions for trade secrets. In the case of works reproduced in three-dimensional copies. • If the work is an unpublished or published computer program.A special deposit requirement exists for many types of works. such as continuity. or synopsis. 48 . Other examples of special deposit requirements (but by no means an exhaustive list) include many works of the visual arts such as greeting cards. the CD-ROM. and contributions to collective works. If registration is sought for the computer program on the CD-ROM. the deposit should also include a printout of the first 25 and last 25 pages of source code for the program. For more information on computer program registration. the deposit requirement is one complete copy of the unpublished or published motion picture and a separate written description of its contents. identifying material such as photographs or drawings is ordinarily required. the operating software. Deposit Requirements for Registration of Claims to Copyright in Visual Arts Material). the deposit is a copy of the entire program. the deposit requirement is one visually perceptible copy in source code of the fist 25 and last 25 pages of the program. toys. and any manuals (2) accompanying it. Copyright Registration for Serials. that is. the deposit requirement is one completed phonorecord. request Circular 62. request Circular 6L Copyright Registration for Computer Program. The following are prominent examples of exceptions to the general deposit requirements • If the work is a motion picture. • For a program of fewer than 50 pages. and oversized materials (request Circular 40a. press book. dramatic.

depending on the amount of material the Office is receiving. but you can expect • A letter or a telephone call from a Copyright Office staff member if further information is needed or 49 . or if they are by different authors. you will not receive an acknowledgement that your application has been received (the Office receives more than 600. The time the Copyright Office requires to process an application varies. Effective Date of Registration A copyright registration is effective on the date the Copyright Office receives all the required elements in acceptable form. If you apply for copyright registration.000 applications annually). and • All the elements are by the same author. The combined elements bear a single title identifying the collection whole is the same.If you are unsure of the deposit requirement for your work. An unpublished collection is not indexed under the individual titles of the contents but under the title of the collection. • The copyright claimant in all the elements and in the collection as a The elements of the collection are assembled in an orderly form. write or call the Copyright Office and describe the work you wish to register. at least one of the authors has contributed copyrightable authorship to each element. Unpublished Collections Under the following conditions. regardless of how long it then takes the process the application and mails the certificate of registration. a work may be registered in unpublished form as a “collection/with one application form and one fee • • as a whole.

If you want to know the date that the Copyright Office receives your material. send it by registered of certified mail and request a return receipt. Requests to have certificates available for pickup in the Public Information Office or to have certificate sent by Federal Express or another mail service cannot be honored. if the work was made for hire. This is the person who actually created the work or. Corrections and Amplifications of Existing Registrations To correct an error in a copyright registration or to amplify the information given in a registration. file with the Copyright Office a supplementary registration Form CA together with the filing. the employer or other person for whom the work was prepared. The information in a supplementary registration augments but does not supersede that contained in the earlier registration.• A certificate of registration indicating that the work has been registered. Note also that a supplementary registration is not a substitute for an original registration. or for recording a transfer of ownership. For further information about supplementary registration. request Circular 8. • The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. Who may file an Application Form? The following persons are legally entitled to submit an application form • The author. for a renewal registration. or if the application cannot be accepted. Supplementary Copyright Registration. a letter explaining why it has been rejected. This category includes a person or organization who 50 .

has obtained by contract the right to claim legal title to the copyright in an application for copyright registration. other copyright claimant. other copyright claimant. Any person authorized to act on behalf of the author. etc) Form SR Form TX Form VA For published and unpublished sound recordings For published and unpublished non dramatic literary works For published and unpublished works of the visual arts (pictorials. or owner of exclusive right (s). pantomimes and choreographic works. • The owner of exclusive right(s). journals. APPLICATION FORMS For Original Registration Form PA for published and unpublished works of the performing arts (musical and dramatic works. graphic. and sculptural works. motion pictures and other audiovisual works) Form SE for serials. • The duly authorized agent of such author. There is no requirement that applications be prepared or filed by an attorney. Under the law. or owner of exclusive rights may apply for registration. newsletters. The term “copyright owners” with respect to anyone of the exclusive rights contained in a copyright refers to the owner of that particular right. annuals. Any owner of an exclusive right may apply for registration of a claim in the work. any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately. even though the transfer may be limited in time or place of effect. works issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely (periodicals. news papers. magazines. including architectural works) 51 .

For further information.Form G/DN A specialized form to register a complete month’s issues of a daily newspaper when certain conditions are met Short Form/ SE and Specialized SE forms for use when certain requirements are Form SE/GROUP met Short Forms TX. 1977 (1909) Copyright Act) and registered during the initial 28-year copyright term. For and VA further information about using the short forms.year copyright term For Corrections and Amplifications Form CA for supplementary registration to correct or amplify information given in the Copyright Office record of an earlier registration.S. For Group of Contributions to Periodicals 52 . Form GATT Specialized form to register a claim in a work in which U. request publication SL-7. request Circular 38b For Renewal Registration Form RE For claims to renew copyright in works copyrighted under the law in effect through December 31. PA Short version of applications for original registration. Addendum Under the 1909 Copyright Act but never registered during their initial 28. Form RE Accompanies Form RE for claims to renew copyright in works copyrighted. copyright was restored under the 1994 Uruguay Round Agreements Act (URAA).

use a laser printer. Public Information Office These fees may only be charged in person in the office. or VA. 8V2 x 11” white paper. certifications. copies of documents and deposits. How to Obtain Application Forms? See “For Further Information” You must have Adobe-Acrobat Reader @ installed on your computer to view and print the forms accessed on the Internet. Go to www. additional fee for each claim using the same 53 . and expedited processing. Print forms head to head (top of page 2 is directly behind the top of page 1) on a single piece of good quality. special handling requests for all standard registration requests. To achieve the best quality copies of the application forms. sharp printout for your records and for filing with the Copyright Office. PA.copyright. not by phone standard registration request forms. The fillin forms allow you to enter information while the form is displayed on the screen by an Adobe Acrobat Reader product. searching.Form GR/CP an adjunct application to be used for registration of a group of contributions to periodicals in addition to an application Form TX. You may then print the completed form and mail it to the Copyright Office.gov/forms and follow the instructions. Certifications and Documents Section These fees may be charged in person in the office or by phone addition certificates. request for services provided by the Certifications and Documents Section when the request is accompanied by a request for special handling. Fill-In Forms Available Most Copyright Office forms are available on the Copyright Office website in fill in version. Fill-in forms provide a clean. Adobe Acrobat Reader may be downloaded free from Adobe Systems Incorporated through links from the same website from which the forms are available. locating and retrieving deposits. search requests for which a fee estimate has been provided.

* the Copyright Office will search its records for you. short fee payments when accompanied by a Remittance Due Notice. and online service providers fees. and photocopying can be charged in person in the office. full term retention fees. request Circular 22-1 How to Investigate the Copyright Status of a Work. The Copyright Office is not permitted to give legal advice. Secure Test processing fee. are now available for searching from the Copyright Office. How to Open and Maintain a Deposit Account in the Copyright Office. For information on searching the Office records concerning the copyright status or ownership of a work. The Copyright Card Catalog and the Online Files of the Copyright Office. on request and payment of a fee. See Circular 5. Fiscal Control Section Deposit Accounts maintained by the Fiscal Control Section may be replenished by credit card. Search of Copyright Office Records The records of the Copyright Office are open for inspection and searching by the public. 1978 to the present. Moreover.deposit. Reference and Bibliography Section Requests for searches on a regular or expedited basis can be charged to a credit card by phone. NIE recordations and claims filed on Form GATT may be paid by credit card if the cart number is included in a separate letter that accompanies the form. and Circular 23. 54 . including registration and renewal information and recorded documents. printing from the Optical Disk. appeal fees. in process retrieval fees. Records Maintenance Unit Computer time on COINS. Copyright Office records in machine-readable form cataloged from January 1. If information or guidance is needed on matters such as disputes over the ownership of a copyright.

The effect of such notice is that from the date of notice. Right to sue for infringement. performers rights.suits against possible infringers. The copyright may be assigned either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part of the term. 51 There is an absolute freedom given to the owner of the copyright to enter into a contract of assignment. the "assignee" includes the legal representatives.52 Right of an author to relinquish copyright The author of a work has a right to relinquish all or any of the rights in the copyright in the work. does not 51 52 Under Sec. Moral rights.5 RIGHTS OF OWNER OF COPYRIGHT The owners of the copyright enjoy many rights in respect of the artistic. rights are owned by different persons. the procedure for getting a work published. The person who assigns the copyright is called assignor and the person to whom it is assigned is called assignee. dramatic and literary works and other subject matters of copyright. Right to relinquish his copyright. or the method of obtaining royalty payments. by giving notice to the registrar of copyrights. it may be necessary to consult an attorney. Right of Assignment The owner of the copyright in an existing work or the prospective owner of the copyright in a future work has the right to assign copyright to any person. 175 (1976).18 of the Act. assignment may be done by one person. However such relinquishment of all or any rights comprised in the copyright in a work. Resale share right in original copies. After assignment the assignee becomes entitled to any right comprised in the copyright and will be treated as the owner of the copyright. right to grant licenses. Broadcast reproduction right. in case of assignment of future works. In case of joint ownership. The owner of the copyright has a right to Assignment. However in the case of assignment of copyright in any future work. Munaswamy. special rights of authors and right to enter names in register of copyright and other incidental rights. 3. Susaiah Vs. the assignment will take effect only when the work comes into existence. AIR 1996 Mad. all his rights cease to exist. if the assignee dies before the work comes into existence. 55 .

54 A joint owner of a copyright can grant license or interest only with the consent of the other joint owner. This 53 54 Sec. 56 . If the licensee of a future work dies before the work comes into existence. Under Sec. of such work or the work recorded in such sound recordings. 1957 also provides compulsory licensing in works withheld from the public. and by reason of such refusal the work is withheld from the public. if it is satisfied that the grounds of such refusal are not reasonable. after giving reasonable opportunity to the owner of being heard and after holding such inquiry as it deems fit. if the owner of copyright (a) has refused to republish work or has refused to allow the performance in public of the work. In other words. his legal representatives.55 The copyright Act. On terms which the complainant considers reasonable.53 Rights to grant licenses The owner of the copyright in any existing work may grant his interest in the right by license in writing signed by him. on his own without affecting the rights of other persons like assignees. Sahitya Prabhas Vs.21 of the Act. if the consent was not given by one of the joint owners the he can sue the licensee for infringement of his right. may. compulsory license may be granted. AIR 1981 All 2000. Provided that license will take effect only when the work comes into existence. 55 Na. Anand Kumar.30 of the Act. Even a prospective owner of the copyright in any future work may also grant license in respect of such work. Under section 31 of the Act. Copyright Board.affect any rights subsisting in favour of any person on the date of notice. in the absence of any contrary agreement will be entitled to the benefit of such license. a copyright owner can relinquish only those rights which he can. (b) The owner of the copyright has refused to allow communication to the public by broadcast.

any sound recording or visual recording.58 a) re-broadcasting of the broadcast. utilization of amounts collected. The owner's approval would be necessary with regard to collection and distribution of fear and. or b) causing the broadcast to be heard or seen by the public on payment of any changes. 57 . Performer's Rights Where any performer appears or engages in any performance. it would amount to infringement of broadcast reproduction right.provision is invoked in the larger interest of the society.37 of the Act.57 Broadcast Reproduction Right Every broadcasting organization has a special right under the act. where the same was done without any license. or c) making any sound recording or visual recording of the broadcast. 31-32 of the Act.35 of the Act. full and detailed information concerning all the activities of copyright societies in relation to administration of their rights. If any person does any of the acts below. Further the owners would be entitled to regular. Similarly there is a provision for granting compulsory licensing in unpublished Indian works. following the year in which the broadcast is made. or offering to do it. 58 Under Sec. known as "broadcast reproduction right" in respect of its broadcasts.56 Collective Right to control administration of owner's rights by copyright society Copyright society will control the rights of owners whose rights administers. which subsists until 25 years from the beginning of the calendar year next. or d) making any reproduction of such sound recording or visual recording. he will be entitled to a special right known as the 'performer's right' in relation to such 56 57 See Sec. Under Sec. or e) selling or hiring to the public. without the license of the owner.

K. 59 60 Sec. AIR 1972 Cal. 65 Under Sec. Anand Raj Anand. the author of a work will have a special right a) to claim authorship of the work. which subsists for 50 years from the beginning of the calendar ear next. Nayar. or the owner. AIR 1981 All 200 and Manojah Cine Productions Vs.57 of the Act.64 Special Rights of Authors Even after the assignment of the said copyright either wholly or partly. 61 Under Sec.61 It is important to note that a person has an inherent copyright in an original composition or compilation without the requirement of registration. S.39. 58 . AIR 1988 Ker.22. b) to restrain or claim damages in respect of any distortion. 2006(1) Raj 607 (Del).45 of the Act.62 It is because the provisions contained in sections 44 and 45 of the Act are enabling provisions and they do not affect the common law right to see for infringement of the copyright. or for reporting of Current events etc. if such above mentioned acts would be prejudicial to his honour or reputation. following the year in which the performance is made. Madhuvan Vs.60 Right to enter names in the register of copyright and other incidental rights The author or publisher of. Similarly the performer's right will not be deemed to be infringed if its use is made for private use.59 If the performance is recorded and thereafter exploited without the permission of the performer than the performer's right is infringed. These are parallel to an independent of the author's economic rights.65 The author's special rights are also called moral rights or droid moral. 62 Satsang Vs.63 Now it is well established that registration of copyright is not necessary and it is not a condition precedent for maintaining a suit for damages for infringement of copyright.39 of the Act. or any other interested person in the copyright was a right to make an application for entering the particular of the work in the register of copyrights. 64 AIR 1972 Cal 533. bonafide teaching or research. Mad. Neha Bhasin Vs.533 63 R. Sundarasan AIR 1976. modification done to his work before the expiration of his copyright. mutilation.performance. Kiran Chandra Mukhopadhyay..

the right to protect the honour and reputation. When any person without a license from th4e owner of the copyright. i. the exclusive right to do which is conferred upon the owner of the copyright.55 of the Act. 4. a. Which are (i) the paternity right i. does anything. or the Registrar of copyright or in contravention of the terms and conditions of a license so granted or of any condition imposed by a competent authority under the act. 1957 infringement of copyright has been explained..e.1 WHAT IS INFRINGEMENT? Copyright in any work is deemed to be infringed in the following cases [Definition of infringement]. the right to claim authorship of work and (ii) the integrity rights i. Right to sue for infringement Where copyright in any work has been infringed.e. the owners of the copyright will be entitled to all such remedies by way of i) ii) iii) Injunction Damages Accounts. or 66 Under Sec. 59 .The Berne Convention in Article 6 directs the member states to protect the moral rights of authors.66 CHAPTER – 4 INFRINGEMENT OF COPYRIGHT Under section 51 of the Copyright Act.

permits for profit. Publication of the work to the public iii. Performance of the work in public 60 . 2. ii. makes for sale or hire. by way of trade. or sells or lets for hire. When any person a. unless he was not aware and had no reasonable ground for behaving that such communication to the public would be an infringement of copyright. exhibits in public. or b. or by way of trade. or c. or d. Work must be the source from which the infringing work is derived. 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. imports into India any infringing copy of the work. Communication of the work to the public iv. displays or offers for sale or hire.b. 4. 4. There must be sufficient objective similarity between the infringing work and the copyright work. distributes either for the purpose of trade or to such an extent as to prejudicially affect the owner of the copyright. or ii. but it need not be the direct source. Reproduction of the work in a material form.2 WHAT CONSTITUTES INFRINGEMENT OF COPYRIGHT In order to constitute infringement of copyright two elements are essential 1.3 COMMON FORMS OF INFRINGEMENT Infringement of copyright in a work occurs when one or more of the following acts take place i.

Anil Gupta Vs.67 For some products with a view to deceive the purchasers and exploit and encash their good will in order to pass off their products as that of the plaintiffs. If such copy. making any other recording embodying iv. a reproduction of 1. Kunal Das Gupta 2002(2) Raj. In relation to a sound recording.v. is made or imported in contravention if the provisions of the Act. the reproduction of a literary.5 PRINCIPLES FOR DECIDING INFRINGEMENT OF COPYRIGHT 67 68 Panacea Biotec Ltd. Vs. In relation to a cinematograph film. or sound recording.69 4. In relation to a program in which a broadcast reproduction right subsists under section 37. get up lay out or other features either wholly or partly in such a manner that may create an impression or confusion or deception in the minds of the purchasing public as to source and origin of the products. 4. or reproduction as the case may be. making a copy of the film on any medium by any means. dramatic. The copyright legislation in India follows the principle "what is worth copying is worth protecting". except in the form of a cinematograph film.347. 69 Glaxo India Ltd Vs.160. 2002(2) Raj 275. In such a case the plaintiffs are entitled to the grant of injunction prayed for. iii. Akay Pharma Put Ltd. 2002(2) Raj. ii. Making of adaptations and translations of the work and doing any of the above acts in relation to a substantive part of the work. This section further explains that. musical or artistic.4 INFRINGING COPY Section 2(m) of the Copyright Act defines infringing copy. In relation to a literary.. musical or artistic work in the form of a cinematograph film will be deemed to be an "infringing copy".68 The main object for giving protection is to prevent the adoption of the colour scheme. dramatic. 61 . the sound recording or a cinematographic film of such program or performance. i. ELprags Pharma.

d. 1978. There can be no copyright in an idea. subject-matter. in other words. One of the surest and safest tests to determine whether or not there has been a violation of copyright is to see if the reader.1613) after considering a number of English Indian and American authorities had laid down the following principles in determing the copyright infringement. plots or historical or legendary facts and violation of the copyright in such cases is confined to the form. Where the same idea is being developed in a different manner. similarities are bound to occur. e. SC. b. themes. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work. a. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the co-incidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. no question of violation of copyright arises.The Supreme Court (Anand V Delux films AIR. spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. it is manifest that the source being common. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the made of expression adopted in the copyright work. If the defendants work is nothing but a literal imitation of the copyright work with some variations here and there it would amount to violation of the copyright. 62 . in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. c. manner and arrangement and expression of the idea by the author of the copyright work.

themes and incidents copied from other films he cannot be sued for infringement. thus if a film producer makes use of ideas. To establish infringement it must be shown that the alleged infringing work closely resembles the original work and that use has been made directly or indirectly of the original work. Even so. direct. Where. Subconscious copying generally occurs in music and perhaps poetry. keeping in view the idea and general effect created by the original. indirect or even subconscious. omissions and modifications do not avoid infringement of copyright. however. but whether. wider field and a bigger background where the defendants ca by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work had expressed the idea. 4. It is not an essential ingredient of infringement that the infringer had an intention to infringe. the question is of the violation of the copyright of stage played by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy.f. It is manifest that unlike a stage play a film has a much broader perspective. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down. But some form of copying is required. there is such a degree of identity or similarity as would lead one to say that the alleged infringement is a copy or reproduction of the original. Plagiarism is not considered infringement of copyright. if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play. Additions. The question of infringement may be resolved by comparing the two works as a whole and determining whether there is not merely an identity or a similarity or resemblance in some of the leading features or in certain of the details. g. violation of the copyright may be said to be proved. Reproduction for the purpose of copyright includes colourable imitation.6 IMPORTATION OF INFRINGING COPIES 63 .

He may also authorize any person to enter any ship. 4. Software piracy in India 68.7 WHAT IS NOT INFRINGEMENT OF COPYRIGHT? A close imitation of an existing recording using alternate performs is not a copyright infringement. If the owner of a copyright in any work feels that infringing copies of his work are being imported or likely to be imported into India he may request the registrar of copyright for an order not to import such copies of the work should not be imported into India. 69. they are to be delivered to the owner of the copyright. The court held that even though the Indian distributors are not guilty of piracy or primary infringement. In case of conflict between international law and municipal law. they would be guilty of secondary infringement. it is only such record which embodies sound recording which amounts to infringement.Importation. when they issue copies of these titles for public distribution. England Vs India Book distributors and others the Delhi high court dealt with the validity of issuing copies of titles of foreign books imported into India. If imported into India. 64 .53 of the Act. The word "import" in sections 51 and 53 of the Copyright Act means "bringing into India from outside India". In case of musical record. of infringing copies into India is an act of infringement. Software piracy 70 Under Sec. the municipal law prevails.70 In a notable judgment in penguin books Ltd. It is not limited to importation for commerce only but also includes importation for transit across the country. by Indian distributors. but if another signal is created such. 70. there may be a chance of violation of copyright therein. But importing two copies of the work for the private and domestic use of the importer is allowed. If such copies are confiscated. dock or premises where any such copies may be found and examine them in collaboration with the customs authorities. by importing the foreign books.

and it occurs when individuals place unauthorized copies of software on the internet for download. Software piracy comes in four common forms. and it occurs when computer dealers install illegal copies of software onto computers prior to their sale. but it can be helpful in an infringement suit where proof of original authorship may be required. it automatically receives protection under Indian copyright law. Registration of software with the copyright office is not a requirement for receiving copyright protection. 65 . • The third is software counterfeiting. the copyright of computer software is protected under the Indian Copyright Act of 1957. However. • The first is end user piracy. Protection of software An original software work does not have to be published in order to receive copyright protection. Software piracy involves the use. and subsequent sale of software in a form that nearly identical to the original product. As soon as the piece of software is committed to a tangible medium. and it occurs when users of software install the software on more machines than they are entitled to under their license agreements. authors of software have the option of registering their original work with the copyright office. Software piracy in India According to Nascom. Government agencies such as the ministry of information Technology and the Ministry of Human Resource Development have played an active role in aiding the Indian law enforcement authorities in protecting software copyright holders. Copyright protection for software with an individual author lasts for the duration of the author's life and continues for 60 years after the authors’ death. • The fourth is internet piracy. and it involves the illegal reproduction. • The second is hard disk loading. reproduction or distribution without having received the expressed permission of the software author.In India.

V. Fair dealing Under section 52 of the copyright Act. Serial 'Kyanki Saas Bhi Khabi Balu Thi' produced by a telecast on star T.V. statutory damages.8 STATUTORY EXCEPTIONS The protection of copyright given to an owner or licensee is not absolute. It is subject to certain exceptions and restrictions. it is not an infringement. by the manufacturers of 'Tide' detergent powder for advertisement of a T. Statutory fines range from a minimum of 50. Vs. commercial with the title 'Kyun Ki Balu Bhi Kabhi Saas Banegi' was held not to be an infringement of copyright of star T. 66 .71 4.be impounded and destroyed Another way that courts grant relief to copyright holders is through monetary compensation.V. musical or artistic work but not being a computer program for the 71 In Star India Put Ltd. The minimum jail term for software copyright infringement is seven days. Punishment Under Indian copyright act. courts costs and attorney fees. be infringement of copyright". dramatic.V. 2003(2) Raj 518. For the purpose of easy understanding they have been discussed briefly as follows 1.Remedies Indian Courts can take a variety of measures designed to grant relief to copyright holders whose rights have been infringed. Section 52 of the Act gives a lengthy list of acts under the heading "certain acts not to. Thus using a theme/image similar to the popular T. The use of the word "records embodying the record" or the "record embodying the same record" clearly mean that it is only when the same signal has been kept.000 rupees in case of version recording. One of these measures is ordering that all infringing copies . a fair dealing with a literary. Leo Burnett India Put Ltd. a software pirate can be tried under both civil and criminal law. 1957.000 to a maximum of 200. and the maximum jail term is three years.including master copies . which can be called as statutory exceptions to copyright infringement. which can consist of monetary damages. would there be a violation. Similarly frame or image which forms part of a film is not included in the Term 'photograph'.

67 . fair dealing covers research or private study. review and reporting current events. Thus. then there is no infringement of copyright and no need to rely on the permitted acts as illusory.following purposes.166. if the part taken is not substantial. It can be roughly equated to 'use'. In UK. there has been a "fair dealing". does not amount to infringement of copyright. The court has determined that a substantial part of a literary. is an important factor in considering whether or not. A fair criticism of the ideas and evens described in the books or documents would constitute "fair dealing" publication confidential information leaked by third party cannot constitute fair dealing for the purpose of criticism or review. It is not fair dealing to incorporate the whole of the other work. copy right law has its 'fair use' provisions. and Criticism or review. It may be fair dealing to include 5 percent of another work for the purpose of criticism or review. The fair dealing provisions allow the copying or other use of the work which would otherwise be an infringement and in many circumstances the amount of the original work used is very relevant. including research. destruction or damage. the degree of substantiality is to say. - Private use. it would have to be considered. E. dramatic or musical work has been taken that any question of fair dealing arises. or for the purpose of making backup copies purely as a temporary protection against loss.72 For example in USA. 'fair dealing' is allowed in relation to a copyright work. Further. artistic. Because the proportion of work taken can be relevant to whether the second author can successfully plead the fair dealing provisions.R. Intellectual Property 5th Ed. Ammim Amma 1996 PTC 670(Ker) Beloff Vs Pressdram (1973) All. Once the question arises. criticism. Making of copies / adaptation of computer programs for specific purposes The making of copies or adaptation of a computer program by the lawful possessor of a copy of such program from such copy for the purposes of utilizing the computer program for the agreed purpose. the quantity and value of the matter taken. in 72 73 Civil Chandran Vs. whether of that work of any other work.2002 P. in considering whether dealing with a particular work was fair. whether any competition was likely to exist between the two works. David Bainbridge.73 2. It must be noted at once that has nothing to do with 'dealing' in a trade sense.24.

Publication for use of educational institutions 9. dramatic. 1994. Performance in the course of activities in educational institutions of a literary. 5. Reproduction for legislative purposes The reproduction of a literary.operatability of an independently created computer of an independently created computer program. 4. would not amount to infringement. 74 This provision was inserted by the copyright (Amendment) Act. or similar periodical. magazine. 68 .order to utilize the program for agreed purpose. exclusively for the purpose of use of members. if such information is not readily available. in newspaper. Reading / Recitation of extracts from the literary works in public.74 Similarly the doing of any act necessary for obtaining information essential for operating inter. musical or artistic work for the purpose of judicial proceedings or for the purpose of a report of judicial proceedings would not come within the purview of infringement. does not amount to infringement. Reproduction in connection with judicial proceedings The reproduction of a literary. musical or artistic work in any work prepared by the secretariat of Legislatures. would not amount to infringement of copyright in such computer program. with other programs. dramatic. 6. Reproduction by teacher or pupil in the course of instruction to the students. 7. 8. 3. Reproduction to make certified copies In accordance with any law and their supply is not infringement. musical or artistic work for the purpose of reporting current events. dramatic or musical work by the staff and the students of the institution or of a cinematograph film or a record is not infringement of copyright in such works. 10. Reporting of current events A fair dealing with a literary. or by broadcast or in a cinematograph film or by means of photography would not constitutes infringement. dramatic.

map. Making a maximum of 3 copies of books including pamphlets. Performance of literary works etc by an amateur club or society for the benefit of paying audience or for the benefit of a religious institution is not infringed. 21. 2001(1) Raj 20%. Making or publishing of a painting. museum or other institution. Reproduction of an article or current economic.75 18. Navin J. Production or publication of translation of Acts of legislature or Rules. drawing.11. drawings or photograph or engravings of sculpture or other artistic works permanently situated in a public place. tribunal or other judicial authority. Making and using of sound recordings under certain circumstance and in enclosed rooms. In terms of section 522(1) (0) of the Act reproduction of a judgment of the court is an exception to the infringement of the copyright. social or religious topics in newspaper and magazines etc. Inclusion in a cinematographic film of any artistic work permanently situated in a public place. painting etc. Making or publishing of a painting. for the purpose of research or private study. or clubs not run for profit do not amount to infringement. 16. 15. not prohibited from publication. sheet of music. Eg documentaries on well known statutes. or order of a court. 17. newspaper or other periodical is not a copyright violation. Reproduction or publication of any matter published in official Gazette or reports of government commission or other bodies appointed by government. 12. Publication of a public lecture delivered in public in a magazine. 69 . 20. Reproduction of any judgment. 19. 13. engraving or photograph of a work of architecture or its display. Desai. 75 Eastern Books Company Vs.. political. chart or plan for use of a public library. 14.

All these acts do not constitute infringement of copyright; these exceptions to infringements listed in section 52(1) apply also to the doing of any act in relation to the translation of a literary, dramatic, or musical work or the adaptation of such work as they apply in relation to the work itself.

4.9 SPECIAL PROVISIONS RELATING TO SOUND RECORDINGS AND VIDEO-FILMS The 1984 Amendment to the Copyright Act, inserted a new provision in the form of Section 52-A, in relation to the sound recordings and video films. 76 This provision deals with the particulars to be included in sound recordings and video films. The object behind making such provision appears to be the fragile nature of the copyright in video films and audio-cassettes. As a result of this provision, no person should publish a sound recording in respect of any work unless the following particulars are given.
a. b. c.

The name and address of the person making the sound recording. The name and address of the owner of the copyright in such work; and The year of its first publication; Similarly, no person can publish validly a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited and on the video-cassette or other container there o f , viz
a. If such work is cinema, certified for exhibition under the provisions of the

cinematograph Act, 1952, a certificate granted by the Board of film certification.
b. The name and address of the producer of the video film and the details of the

necessary license and consent; and
76

The Copyright (Amendment) Act, 1984, Sec.4, W.e.f. 9.10.1984.

70

c. The name and address of the owner of the copyright in such work

These particulars included in sound recordings and video films help the prevention of video-piracy and piracy and audio-cassettes.

4.10 DETERMINATION OF QUESTION OF COPYRIGHT INFRINGEMENT If there in no reservation to claim copyright in a work, no copyright can be claimed on the basis of mere fact that there is some printed matter but, has no claim of copyright, therefore for the better protection of copyright, the owner should claim reservation of copyright by a mark (c) or the expression 'copyright reserved' or 'copyright'.77 Infringement of copyright is a question of fact and it is a matter which can be established by evidence adduced before the trial courts. Therefore, unless there is evidence on the aspect of infringement of the copyright of the complainant, it would not be possible to decide whether there is infringement of copyright.78 4.11 LAY OBSERVER TEST Generally Courts of India follow the 'Lay observer test' to determine infringement of copyright'. According to this test, "whether or not there has been violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works should be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first if to the "lay observer" it would not appear to be reproduction, there is no infringement of copyright in the works. Earlier this view was upheld by the Kerela Hightcourt in R. Madhavan Vs S.K. Nayar,79 which held that dissimilar novels do not involve infringement of copyright. The Delhi high court laid down that the infringement of copyright has to be tested on the visual appearance of the drawing and the object in question. The

77 78

Lamba Brother Pvt. Ltd. Vs. Lamba Brothers, AIR 1993 Del.347. Garapati Prasad Rao Vs Parnandi Saroja, AIR 1992 AP 230 at P.233. 79 AIR 1988 Ker.39.

71

purpose of functional utility, efficacy of different parts and components of the object or the material of which they be made are relevant for the purpose of copyright.80 Enlargement of Law books from student edition to lawyers edition does not amount to infringement of copyright.81 Similarly play, drama or movie produced based on the true life incidents reported in newspapers, but in a quite different manner does not lead to the infringement of copyright. 82 Publishing notes from the syllabus prescribed by University is not infringement of copyright. 83 Making of replica of original picture84? Colourable imitation of work85 and unauthorized broadcasting to general public" amount to infringement of copyright.

80

John Richard Bardy Vs. Chemical process equipment Pvt. Ltd., AIR 1987 Del.272 at P.382.

81 82

Bharat Law House Vs. Wadhwa and Co. Pvt. Ltd., AIR 1988 Del.68. Indian Express Newspapers Pvt. Ltd. Vs. Dr. Jaymohan Mundhra, AIR 1985 Bom.229 popularly known as Kamala Case. 83 Ramesh Chowdhury Vs. Ali Mohd. Nowsheri, AIR 1965 J&K 101. 84 C. Cunnaih & Co. Cs. Balraj & Co. AIR 1961 Mad.111. 85 Fateh Singh Mahta Vs. O.P. Singhal AIR 1990 Raj 8.

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or is a stateless person wherever that person may be domiciled. one or more of the authors is a national or domiciliary of the United States. is a treaty party. or is a national. as the case may be. For purposes of this condition. or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party. however published works are eligible for copyright protection in the United States if anyone of the following conditions is met. or sculptural work that is incorporated in a building or other structure. • The work is first published in the United States or in a foreign nation that. graphic. regardless of the nationality or domicile of the author. or • The work is first published by the United Nations or any of its specialized agencies. or • A treaty party is a country or intergovernmental organization other than the United States that is a party to an international agreement.5 LEGAL PROTECTION OF COPYRIGHT IN INDIA AND JUDICIAL PERSPECTIVE Copyright protection is available for all unpublished works. a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party. or The work is a pictorial. or by the Organization of American States.CHAPTER . Domiciliary. or 73 . • On the date of first publication. on the date of first publication. or sovereign authority of a treaty party. or • • The work is a sound recording that was first fixed in a treaty party.

5. Copyrightable works include the following categories 1. and sculptural works”. motion pictures and other audiovisual works 7. including any accompanying words 3. These include among others 74 . maps and architectural plans may be registered as “pictorial. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.2 SOME WORKS ARE NOT PROTECTED BY COPYRIGHT Several categories of material are generally not eligible for federal copyright protection. Highlights of Copyright Amendments contained in the (URAA-GATT). pantomimes and choreographic works 5. 5. including any accompanying music 4. and sculptural works’ 6.• The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreement Act (URAA). 2. dramatic works. computer programs and most “compilations” may be registered as “literary works”. sound recording 8. graphic.1 PROTECTION OF COPY RIGHT Copyright protects “original works of authorship” that are fixed in a tangible form of expression. Request Circular 38b. musical works. graphic. literary works. For example. • The work comes within the scope of a Presidential proclamation. for further information. architectural works These categories should be viewed broadly. pictorial.

There are. or both. such as cassette tapes. mere variations of typographic ornamentation. principles. lettering.3 SECURES OF COPYRIGHT Copyright Secured Automatically upon Creation The way in which copyright protection is secured is frequently misunderstood. familiar symbols or designs. sheet music. motion picture sound tracks). mere listings of ingredients or contents • Ideas. and slogans. and lists or tables taken from public documents or other common sources). “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device. methods.• Works that have not been fixed in a tangible form of expression (for example. tape measures and rulers. as distinguished from a description. short phrases. or devices. manuscripts. however. explanation. systems. or microfilm. videotape. and a work is “created” when it is fixed in a copy or phonorecord for the first time. by statutory definition. 5. “Phonorecords” are material objects embodying fixations of sounds (excluding. processes. Copyright is secured automatically when the work is created. height and weight charts. film. CDs. Or illustration • Works consisting entirely of information that is common property and containing no original authorship (for example standard calendars. No publication or registration or other action in the Copyright Office is required to secure copyright. or LPs. choreographic works that have not been notated or recorded. Thus. a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”). or coloring. or improvisational speeches or performances that have not been written or recorded) • Titles. discoveries. See “Copyright Registration”. such as books. procedures. certain definite advantages to registration. for example. names. concepts. If a work is 75 .

is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus and additional 70 years after the author’s death. The term lasts for 70 years after the last surviving author’s death. 1978. the duration of copyright will be 95 years from publication or 120 years from creating. In either case. 5. the copyright endured for a first term of 28 years from the date it was secured. 2047. 1978. Works Originally Created before January 1. For works made for hire. the life-plus-70 or 95/120 years terms apply to them as well. 31. 2002. 76 . 2002. and for works published on or before December. 1978. During the last (28 th) year of the first term. making these works eligible for a total term of protection of 75 years.prepared over a period of time. the term of copyright will not expire before December 31. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1. 1978 A work that was created (fixed in tangible form for the first time) on or after January 1. but not published or Registered by that date These works have been automatically brought under the statute and are now given federal copyright protection. Works Originally Created and Published or Registered before January 1.4 COPYRIGHT PROTECTION ENDURES Works Originally Created on or after January1. 1978. In the case of “a joint work prepared by two or more authors who did not work for hire”. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1. the copyright was eligible for renewal. copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records). the part of the work that is fixed on a particular date constitutes the created work as of that date. or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA). 1978 Under the law in effect before 1978. The law provides that in no case would the term of copyright for works in this category expire before December 31. whichever is shorter.

These rights are 77 The Act. and Circular 15t. Extension of Copyright Terms. Renewal of Copyright. and December 31. Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred. enacted on June 26. 1964.5 COPYRIGHT PROTECTION FOR PERFORMANCE RIGHTS Introduction Copyright is a form of intellectual property protection granted under the law to the creators of the original works of authorship. singers. 1957 as amended by . Public Law 102-307 makes renewal registration optional. the Copyright Act was amended. Circular 15a. actors.. 1998. 1999. amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1. providing for a renewal term of 67 years and a total term of protection of 95 years. some benefits accrue to renewal registrations that were made during the 28 th year. filing for renewal registration is no longer required to extent the original 28-year copyright term to the full 95 years. 298. etc. For more detailed information on renewal of copyright and the copyright term. but the transfer of exclusive rights is not valid unless that transfer is in writing and signed. 1992. Thus. The amendment introduced the recognition of the rights of the performer. presently in force was legislated in the year 1957 and is known as Copyright Act. It was only recently when the technological changes threatened the livelihood of performers that the law intervened to protect performers. publish and sell copies of his original work. However. composer. (or his assignee) to print. and Circular. It is an exclusive right given by law for a certain term of years to an author. acrobats. It was a replica of English Copyright Act of 1911 suitably modified to make it applicable to the then British India. 1977. the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office. Public Law 102-307. etc. 5. Copyright (Amendment) Act. The Indian Copyright Act for a very long time did not recognize the rights of performers like musicians. Duration of Copyright.Public Law 105. request Circular 15. enacted on October 27. In the year 1994. In India the first Copyright Act was passed in 1914. Although the renewal term is automatically provided. further extended the renewal terms of copyrights still subsisting on that date by an additional 20 years.

actor. 2. dramatic or musical work. musician. and the exclusive right to make sound recording from which such sounds may be produced regardless of the medium on which such recording is made or method by which the sounds are reproduced. Section 38 of the Copyright Act confers rights to performers like actors. student performing in a school play is a performer within the meaning of Section 2 (qq) and his rights are well within the scope of protection accorded by Section 38. juggler. jugglers. Musical works and sound recordings embodying the music are considered separate subject-matter for copyright. snake charmer. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. Under Section 2 (qq) of the Act. Rights of a performer under the copyright protection Act The performer has the exclusive right to do the following under the Copyright Protection Act 1. dancers. If the recording includes any material which is an infringement of any literary. or any other person who makes a performance. For example. acrobats etc. “Performer” includes an acrobat. He also has the right to authorize the recording of a live performance.called performers rights. He has the right to make copies of the recording. the right to issue 78 . one for the music and one for the sound recording. The copyright in the recording of music is separate from the copyright in the music. A performer has a right to produce sound recording or visual recording of his performance. copyright will not subsist in the sound recording. singer. a person delivering lecture. Copyright will subsist in a sound recording only if it is lawfully made. Where the song has not been written down and the composer who is also the performer records the song two copyrights come into existence simultaneously. Right to make Sound Recording or Visual Recording of the Performance A performer has the right to make sound recording or visual recording of his performance under Section 1 (xx) of the Copyright Protection Act. Right to Produce a Sound Recording or Visual Recording of the Performance. “Performance” in relation to performers’ right means any visual or acoustic presentation made by one or more performers.

The name and address of the person who has made the video film and a declaration that he has obtained the necessary license or consent of the owner of the copyright in the work for making the video film. (i) by any means of wireless diffusion. However. whether in any one or more of the forms of signs. or Reproduction of the sound recording or visual recording of reproduction for the purpose different from those for which performer gave his consent. dramatic or musical works or records in which independent copyright may subsist. In case of program broadcast. Right to Broadcast the Performance Performers also have the right to prevent their live performances being broadcast. which includes literary. the right to rent or lend copies. ‘Broadcast’ means communication to the public. does any of the following acts. This is done with a view to check and detect piracy.copies of the recordings to the public. and (c) (C) The name and address of the owner of the copyright in such work. the recording must display following particulars. These acts include (a) (b) Sound recording or visual recording of the performance. and includes a rebroadcast. broadcasting organization should obtain the consent or license of the copyright owners in the work in question. 3. To communicate the Work to the Public otherwise than by Broadcast. (ii) or by wire. Failure to comply with the above is a punishable offence. sounds. (a) (b) A copy of the certificate granted by the Board of Film Certification. Any other means to communicate the work to the public other than the broadcast. The Copyright Protection Act strengthens the rights of the performers by making certain provisions. and visual image. 79 . Under this if any person without the consent of the performer. he will be deemed to have infringed performers’ rights. Infringement of performers’ rights.

teaching or research or (c) Other act with any necessary adaptations and modifications which do not constitute infringement of copyright under Section 52. Acts not constituting infringement of a performers rights The following acts do not constitute infringement of a performer’s right (a) Making of any sound recording of or visual recording for private use of the person making such recording or society for the purpose of bonafide teaching or research. However. and parents and guardians of the students and person directly connected with the activities of the institution – Section 52 (1) (ii). These acts are reproduction for the use of judicial proceedings – Section 52 (1) (c). the above Acts are said to be infringed by a person only when these Acts are committed during the continuance of the performers’ rights. and Communicate the performance to the public otherwise than by broadcast. (d) Use of sound recording or visual recording of the performance in the course of the activities of an educational institution if the audience are limited to the students. When a performer has consented to the incorporation of his performance in a cinematograph film the performer losses the right to complain of infringement of that performance which means he assigned his entire rights and that performance to the producer of the cinematograph film. 80 . reproduction for the use of members of legislature – Section 52 (1) (d). and the use in a certified copy in accordance with any law in force – Section 52 (1) (e).(c) (d) Broadcasts the performance. (b) Fair dealing of experts of a performance in reporting of current events or for bonafide review.

(i) Civil remedies Under civil remedies. Remedies against infringement of performers rights The following remedies may be availed in a suit against infringement of performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act. or both of them.50. The necessity of such an order arises where there is a grave danger of relevant documents and Infringing articles are being removed or destroyed so that ends of justice will not be defeated. the owner of the copyright.6 INTERNATIONAL COPYRIGHT PROTECTION There is no such thing as an “International Copyright” that will automatically protect an author’s writings throughout the entire world.2. Accordingly the making of a sound recording or visual recording for the aforesaid purposes cannot also be an infringement. as the case may be. a license to reproduce such broadcast will require the consent of the owner of rights or performer. 5. (ii) Criminal remedies in addition to civil remedy the Copyright Act enables the owner of the copyright to take criminal proceedings against the infringer. (iii) Anton Pilar Order In appropriate cases the court may on an application by the plaintiff pass an exporters order requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. or his assignee or his exclusive licensee or a legatee may obtain (a) injunction or (b) claim damages.00 lakhs. The offence of infringement of copyright is punishable with imprisonment which may extent from a minimum period of six months to a maximum period of three years or with a fine of the order of Rs.The aforesaid can be done only with the sound recording or visual recording of the performance.000/to Rs. Where copyright or performer’s right subsists in respect of any work or performance that has been broadcast. 81 Protection against .

No man is at liberty to take away the result of another man's labour or his property. 82 . jugglers. the right to damages based on tort or breach of contract etc.83. to do certain acts. musicians. Copyright has been placed on par with an individuals other rights. of his work. E. International Copyright Relations of the United States. The right to property. However. AIR 1924 PC 75 at P. he can have recourse to all remedies which would be available to him under the general law relating to the infringement of a right. snake charmers. the author may bring a suit for injunction and ask the court to stop the printing. basically. The above said discussion reveals that copyright is a form of intellectual property protection granted under the law to the creators of the original works of authorship. ibi remedium" which means. and these conditions have been greatly simplified by international copyright treaties and conventions.7 REMEDIES AGAINST INFRINGEMENT OF COPYRIGHT General When an author's copyright has been infringed.. As the famous saying goes "Ubi jus. that maintain copyright relations with the United States. request Circular 38a.g. there is remedy.. These rights conferred on the performers are a positive step in encouraging their creativity. on the national laws of that country. etc. the right to restrain a person from doing anything to his determent. where there is a right. the right to enforce a contract. So. 5. Vs K&J Cooper Ldt.. Copyright law confers exclusive right to performers like actors. most countries do offer protection to foreign works under For further information and a list of countries certain conditions.unauthorized use in a particular country depends. sale circulation etc.86 86 Macmilan and Co.

1. Copyright Board and copyright societies etc.Nature and kinds of Remedies Therefore violation of copyright has different remedies. namely. A part from the remedies against infringement of copyright the copyright act provides for the protection of certain special rights. They can be enforced by an action for breach of contract or confidence. 1957 provides for three types of remedies for violation of copyright. they also have certain powers to give certain remedies for violation of copyright. In appropriate cases declaratory order may be obtained as to whether what the defendant is ding or proposes to do is an infringement of the copyright in a work. An author of copyright work can restrain or claim damages in respect of a. In respect of architectural works. where the construction of a building or other structure which would infringe the copyright in some other work has been commenced the owner of the construction of such building or structure or to order demolition. He can also claim damages for conversion. any distortion or mutilation of the work. damages or account of profits. In case of innocent infringement some of these remedies are not available. The author can also exercise even after the assignment of the copyright. or b. delivery up of infringing copies and damages for conversion. 83 . 2. any other action in relation to the work which would be prejudicial to his honour or reputation. Civil remedies include injunction. The Copyright Act. a suit for defamation or passing off as the case may be. Criminal remedies impose punishment to the infringer. Administrative remedies. Administrative remedies provides for the establishment of offices and institution like the Registrar of copyrights. Criminal remedies 3. Civil Remedies.

See also Tate Oil Mills Co. a non-exclusive licensee provided he joins the owner of the copyright. 4. at the time of the institution of the suit and other proceedings. to the extent of that right. 5.272-377. The following persons can sue for infringement of copyright. may enforce that right by civil or criminal proceedings. A district court within the local limits of whose jurisdiction the person (s) instituting the suit or other proceedings. an exclusive licensee if the owner of the copyright is made a joint plaintiff or dependant.87 The period of limitation for filing the suit is three years from the date of infringement. in the case of anonymous or pseudonymous work the publisher of the work 6. S. 1. Salem Vs. Karuppannan. We have seen that the owner of copyright in a work has the exclusive right to do a number of acts in respect of the work. the legatee in case of testamentary disposition of the copyright. Everest Picture Circuit. the assignee of the copyright 3. AIR 1982 Mad. An exclusive licensee can also file a suit in which case the owner of the copyright must be made a co-plaintiff or defendant. Parties to the suit for infringement Normally the owner of the copyright is the plaintiff. 2.Jurisdiction of courts A suit or other civil proceedings relating to infringement of copyright should be instituted in the District court having jurisdiction. 84 . Where the several rights conferred by a copyright in any work are owned by different persons. These acts are enumerated in section 14 of the Copyright Act 1957. The question of jurisdiction of court is a mixed question of fact and law. AIR 1987 Del.244. Ltd Vs. circulate and sell copies of the work if it 87 John Rchard Bardy Vs Chemical Process Pvt. voluntarily resides or carries on the business or personally work for gain. the owner of the copyright or a co-owner. He can print. the owner of any such right. Reward Soap Works.286. It cannot be decided at the time of interim injunction stage. Ltd. AIR 1983 Del.

So. He can abridge. specifying the acts which the licensee is permitted to do. he can make a sound recording of it. he did not know that the performance was unauthorized and amounted to infringement of some one's copyright and he had no reasonable grounds for believing that to be the case.is a book. or the doing of an act which would ordinarily amount to infringement. But if anyone other than the owner of the copyright. the assignee or the licensee as the case may happen to be. he infringes copyright. or grant a license in respect of it. in certain special circumstances which constitute exceptions to the general law. He can also assign his rights wholly or in part to someone else. It states that when anyone. without authority. will be infringing copyright. a musical composition. the owner or tenant of an auditorium who lets out the premises for such unauthorized performance or exhibition and makes a profit by the sale of tickets to those who come to watch the performance. he can arrange a public performance of it. These exceptions are set out in section 52 of the Act. He is then said to infringe copyright in the work and the infringement renders him liable under civil as well as criminal law. granted by the owner of the copyright or by the Registrar of copyrights does any of the acts which only the owner of the copyright is entitled to do. However. a play or a picture. if the work is a play. an article. is permitted by law. a musical piece or a cinematograph film if any one allows it to be publicly performed in any place for profit. 85 . Infringement may be direct or indirect. Direct infringement Section 52 lays down the general rule with regard to infringement. The plea of ignorance will be a good defense to a civil suit for damages or a criminal charge for such infringement. and so an. It is also an infringement of copyright in a play. if however. Also if a licensee does anything beyond the terms of his licensee who is permitted to publish only the original work publishes a translation of it into another language or exploits its film rights he will be infringing the owner's copyright. and if the work be a cinematograph films. he contravenes the fights of the owner. infringement. his assignee or his licensee does. without a license. any of these acts. and communicate it by radio diffusion. modify or translate the work into any language and publish the translation. he will not be liable. he can exhibit it in public or have it screened by his employees or agents.

or to import infringing copies of a work. of course. The court must first be satisfied that the plaintiff does own the copyright in the work which has been alleged to have been copied or he is the exclusive licensee in respect of it. except for the private or domestic use for the importer. to distribute such an extent as to cause loss or injury to the owner of the copyright. to display for purposes of trade. But if the court feels that the loss which will be occasioned by 86 . It will be granted when monetary compensation will not be adequate or when irreparable harm will result to the aggrieved person (plaintiff) if the injunction is refused. the court will grant an injunction." The remedy of injunction which may be temporary or permanent is a matter within the discretion of the court. It must further be shown that he has been prompt and deli gent in seeking the remedy or injunction. a person who exhibits a film which is an unauthorized reproduction of a novel or play. these are to make for sale or hire. to offer for sale or hire infringing copies of a work. however it is shown to the court that the respondent intends to publish and circulate for sale a large number of copies of a work in which the copyright is owned by the plaintiff or a film which infringes the plaintiffs copyright is about to be exhibited. is restrained from commencing or continuing such act or is commanded to restore matter to the position in which they stood. The discretion. If. will all be infringing copyright in the work. must be exercised in a judicial manner and must be based on well established judicial principles and not arbitrarily. previous to his action. to let out for hire. A book seller who displays or sells unauthorized copies of a book. The dictionary meaning is a "Judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another. Injunction Injunction is an order by the court directing a person to do or abstain from doing something. A long and unreasonable delay will be a good ground for refusing the injunction prayed for as the delay may be interpreted as acquiescence. or the owner of a private lending library who lends such copies to his patrons for a fee.Indirect infringement The section also specifics certain acts which amount to indirect infringement of copyright.

If the court is disinclined to rant the injunction. In support of his application. The broad principle which the courts follow is the balance of convenience. A temporary injunction is granted. A permanent injunction will be granted only after the rights of the parties have been adjudicated upon and finally settled by the court. as in all discretionary matters. upon a prime facie showing that his right has been infringed and the infringement will continue unless stopped. however. circulation or performance of a work will be small or if the plaintiff can be adequately compensated by ordering the defendant to keep and submit accounts of all money and he will receive by exploiting the work. the court will refuse to issue an injunction. during the pendency of suit to guard against avoidable loss to the plaintiff while the suit drags out its long course. Such injunction will be granted in appropriate cases. may at the same time. the plaintiff should press for an order directing the defendant to keep accounts of sale of infringing copies and of money 87 . a completely just and objective decision is not always achieved. It is not surprising that in the matter of injunction. The aggrieved party has.the publication. will the injunction cause more loss to the defendant than gain to the plaintiff. ask the court for the issue of a temporary injunction. The making an application for a temporary or interlocutory injunction. that his right has been infringed and that he will suffer irreparable loss if the continuance of the infringement is not stopped by means of a temporary injunction. a right of appeal to a superior court. the plaintiff must state that he is the owner of the copyright or the exclusive licenses in respect of the work in question. against the order granting or refusing to grant an injunction. the plaintiff can argue that the issue of a temporary injunction does not prejudge the issues involved in the case and it is not necessary for him to show that he must ultimately succeed in establishing his claim. A plaintiff suing for damages. will the refusal of the injunction cause irreparable loss to the plaintiff or and the other hand. and then paying to the plaintiff what is legally due to him. All he is asking for the maintenance of the status quo.

He can bring a suit to recover all infringing copies of the work and all plates used or intended to be used for the production of the infringing copies and he may recover damages from the person who has used the infringing of plates. Rendition of Accounts In a suit for accounts. It is obvious that damage to the reputation of an author is something apart from the infringement of his copyright. But this will be a rare occurrence. though there may be instances in which the author. Recovery of infringing Copies One more remedy available to the owner of a copyright. the author may sold his copyright or assigned it wholly or partially but the public will continue to associate him with the work and if in printing or publishing it anyone mutilates it or alters it in such a way as to cast a reflection on the authors reputation as a writer or on his honour and integrity. If the plaintiff feels that the act of the defendant is prejudicial to his honour or reputation. the plaintiff asks the court to order the defendant to render accounts of all money received by him. he retains the right to vindicate himself. in case of infringement. A suit for accounts is a remedy distinct from a suit for damages. provided the plaintiff ultimately succeeds in obtaining a decree in his favour. Author's Special Rights This right can be enforced by the author's legal representatives also.received by him and further give an undertaking that he will compensate the plaintiff for the loss he will suffer by his acts of infringement. Damages A suit for damages for the infringement of copyright is ordinarily based on the law of tort.publisher contract specifies the quantum of damages to be paid in case of breach of any of the terms of the agreement. Declaratory Suit 88 . expenses incurred and profits made by the infringement of the plaintiff's copyright.

In this suit he may also ask the court to issue an injunction to the false claimant that he cease uttering such threats and in addition pay damages. This means a suit in which he asks the court to declare that the alleged infringement is not in fact infringement at all.and upto Rs. Criminal Proceedings Chapter XIII. Fine can also be imposed not less than Rs.50. Criminal courts have been empowered to entertain and dispose of certain types of breaches of copyright and punish the wrong doer.2 lakhs.000/. the person so threatened may bring a declaratory suit.Section 60 of the Act provides that when anyone wrong fully claiming to be the owner of the copyright in a work threatens to take legal proceedings regarding infringement of copyright against another on the ground that other has infringed the copyright. in sections 63 to 70 deals with the offences in relation to violation of copyright. The nature of offence and punishment prescribed can be understood by the table below 89 . and that he has a perfect right to do what he is doing. Punishment for infringement imposed to the wrong door is minimum 6 months of imprisonment and maximum 3 years.

No.Rs.63-A conviction Not inferior to the metropolitan judicial magistrate of first class Maximum . Knowingly using of infringing copies of computer programme Sec.f year Fine Minimum.2 lakhs Not inferior to the metropolitan magistrate or a judicial magistrate of first class 2.50.000 Maximum-Rs. For second and subsequent Sec.llakh Maximum-Rs.6 months imprisonment Maximurn-3 years imprisonment + fine not less than Rs.7 years Fine MinimumRs.000/. for producing or tendering false entries Sec.63-B Imprisonment Minimum .2 lakhs Not inferior to the metropolitan judicial magistrate of first class Maximum .3 years magistrate or a 3.2 lakhs Imprisonment Minimum .64 Imprisonment upto 1 year. or any other work conferred by this Act (except in case of resale share right in original copier-under section 53A) Sec. 63 Minimum.3 years magistrate or a 4.upto Rs. Knowingly infringing or abetting the infringement of the copyright in a work. Making false entries in register of copyrights etc.S. or fine or both Not inferior to the metropolitan magistrate or a judicial magistrate of 90 .50. Nature of Offence Provision of the Act Punishment Criminal Court having jurisdiction to try the offence 1.

91 . Incidental powers of the Courts and Police 88 Under Sec. a body corporate and including a firm or other association of persons. will be liable for prosecution and punishment. Publishign a sound recording or a video film in violation of sec. or fine or both Not inferior to the metropolitan magistrate or a judicial magistrate of first class 6.68 Imprisonment upto 1 year.65 Imprisonment upto 2 years and fine Offences by Companies Where a company i.first class 5. Possession of plates/ other material used for making infringing copies Sec. at the time of commission of offence. 52A(video& audio piracy) Sec.e. secretaries and others. every person responsible to such company etc. for the conduct of the business of the company. 68-A Imprisonment upto 3 years and fine 7. managers. commits an offences under the copyright act. 88 The individuals who may become liable are directors of companies.69 of the Act. Making false statements for deceiving or influencing any authority/ officer Sec.

every person responsible to such company etc. they also have certain powers to give certain remedies for the violation of copyright. 93 See the discussion on “Institutions under the Act” in the Proceedings pages. managers. copyright board and copyright societies etc. secretaries and others. It is known that copyright act provides for the establishment of offices and institutions like the registrar of copyright. the police investigating. Administrative Remedies Other remedy that is available is administrative remedy with other civil and criminal remedies. 92 .69 of the Act. In general the owner may use his property as he wishes and that no body else can lawfully use his property without his authorization.64 Under Sec.66 92 Under Sec. a specialized agency of the United Nations. 92 The individuals who may become liable are directors of companies. a body corporate and including a firm or other association of persons.While acting on a complaint against any alleged infringement of copyright. at the time of commission of offence. commits an offence under the Copyright Act.64 91 Under Sec.93 5.89 to order restoration of such copies/ material to the interested persons90 and to order disposal of infringing copies or plates used therefore. will be liable for prosecution and punishment.91 Offences by Companies etc Where a company i. for the conduct of the business of the company.e. If any person interferes his 89 90 Under Sec. acting under the direction of the competent court have the following powers i) ii) iv) to seize the infringing copies and other material.8 JUDICIAL PERSPECTIVE The intellectual property law has been given official recognition by the international community with the establishment of WIPO.

The courts make a study of the case and interpret the provisions and give decisions in according with law. SOME CASE LAWS DECIDED BY SUPREME COURT AND HIGH COURTS Gramophone Company of India Ltd. Vs. Judiciary follows the principles of natural justice. Courts always give importance to the individual interests and protect the individual’s rights. Birendra Bahadur Pandey & others 1984 AIR 667 SC In this case the Supreme Court held that copies made out of India of a work which if made in India would infringe copyright shall not be imported. Judiciary always protects individual rights of people and it in turn protects the society. Judiciary maintains the balance between society and individuals. Judiciary takes into consideration of the changes into society and makes rules and decide the cases accordingly. judiciary is protecting the interest of owner of the copyright.right to enjoyment then the person can move to court of law for relief. Courts protects the individual rights of the persons in case of violation of his rights he can seek the help of courts to protect his rights and court some time awards damages to the infringer and some times it imposes punishment also. Narration of Brief facts of the Case 93 . Courts gave different decisions in different cases according to the merits of the cases. As the law is not static it has to be changed according to the changes in the society in order to suit the changing needs of society.

The copies of records and cassettes were dispatched from Singapore to Nepal and to Calcutta port. it is only such record which embodies sound recording which amounts to infringement. Thus the use of the word 94 . but for onward submission to another country. it was said that the object of the copyright act was to precious authorized reproduction of the work or the unauthorized explosion of the reproduction of a work in India. if becomes bear that the word import in Sec. and the object would not be frustrated if infringing copies of a work were allowed transit across the country. 1957. The appellant company suspected that those cassettes are unauthorized reproductions of its records and cassettes. to the protection of copyright. We have already mentioned the imported attached by the international opinion as manifested as manifested by the various international conventions and treaties. In interpreting the word import in the copyright act. it is difficult to agree with this submission thought it did find favour with the section 53. shall not be imported. If this much is borne in mind. Pleadings of the Respondents The respondents counsel argued that the records were brought into the country not for commerce. but if another signal is created such as in the case of version recording. the import of which into India was prohibited. it is not an infringement. in law be no important. If the goods are brought in only to go out. The appellant company moved the registrar of copyrights for action under section 53 of copyright act. there is no import. who enables the registrar after making such enquiries as he deemed fit. It is be interpreted in a sense which will fit the copyright act into the setting of international conventions. we must take note that while positive requirement of the copyright conventions is to protect copyright. The court clearly differentiated whether there was importation of copies or not and in case of musical record. they can.53 of the copyright act cannot bear the narrow interpretation sought to be placed upon it to limit it to import for commerce. to order that copies made out of India of a work which if made in India would infringe copyright. Judgment In this case the court stood on the side of the petitioners and held that a close intimation of an existing recording using alternate performance is not a copyright infringement. negatively also.

Lamba Brothers AIR 1993 Del 347 Plaintiff and defendants were carrying on business together at one time using trade mark ELBEE for the machinery manufactured by them.. Muniswamy AIR 1966 Mad 175 The court held that assignment of any work. Lamba Brothers Pvt. would there be a violation."records embodying the record" or the "record embodying the same record" clearly means that it is only when the same signal has been kept. which actually was only a coloured brochure having descriptive words. should be in writing signed by the assignor or his authorized agent. by mark (C) or expression “Copyright Reserved” or “copyright Lamba Brothers Pvt. The defendants contended that the plaintiff had not shown any proof of ownership. There was no reservation claim of copyright in the brochure in any recognized method. There was dissolution of partnership on 1-4-1985.” The Court observed that there must be compliance with the requirements of the Statute and claim to copyright made upon the copyright table material before any action in copyright can be sustained and perfected by statutory remedies. The defendant No.1 was publisher of the UNIQUE SCIENCE. 5 which were first published in 1986. Ltd V. one of them who are aggrieved can maintain criminal action for the offence. Ltd. they also pleaded that the books dealt with general aspects of science which fall within the domain of public knowledge. to be valid. S. V.. tables and photographs. That the two brothers carried on independent business. hence there was nothing original in the books so that a copyright could subsist. 4. Trisea Publications 1996 PTC (16) 597 The plaintiff was a publisher of educational books for children and claimed registered copyright in its book LIVING SCIENCE volumes 3. A. Also that in case of infringement of copyright in respect of literary work of two joint authors.e. The plaintiff claimed that defendants’ publications were copied from its book and amounted to infringement of its copyright. i. Infringement suit was based on a catalogue. The suit was dismissed. 95 . Susiah V. Ratna Sagar (P) Ltd.

The Court was of the view that a comparison of the two works clearly indicated that the defendants had copied the work of the plaintiff. On the facts of the case, the Court held that the defendants were guilty of infringing the copyright of the plaintiff in the books. The balance of convenience was also in favour of the plaintiff. Permanent injunction was granted in this case. Gramophone Co. of India Ltd. Vs. Mars Recording Pvt. Ltd. AIR 2001 SC 2885 In this case the Supreme Court held that a close intimation of an existing recording using alternate performers is not a copyright infringement. The brief facts of the case The plaintiff during the course of their business were willing of sound recording into audio cassettes of three titles viz, 'kallusakka are kolliro', 'madhuve madhuve' and chinnada hadugalu. The copyrights of the songs containing in three sound recording cassettes vest with the defendant is but the respondent has paid in prescribed manner to the owner of copyright as royalties of Rs.1,500/- and waited for their assent, but the petitioner did not give any information, so he waited for 15 days and then the person producing the cassette after the expiry of 15 days is not said to have infringed copyright. Pleadings of Appellant The leading senior advocate appearing for the appellant submitted that this case gives rise to decision on an important aspect of entertaining a suit under section 41 of the specific relief act in addition to copyright; he took us through the entire copyright act explaining the scope thereof.

Pleadings of Respondent The contended that the question of law involved in the present case is whether an entity which seeks to make version recording or cover versions of an earlier sound 96

recording requires the consent of the owner of the copyright, the answer to this he submitted, would turn on an interpretation of sections 2(m) (iii) and 52(i)(j) of the act. Version recordings are fresh recordings made using a new set of musicians. The counsel established a clear distinction between voluntary license and non-voluntary licenses. While section 30 of the act refers to voluntary licenses in which case the consent of the party is concerned. As opposed to this, there are two types nonvoluntary licenses, compulsory licenses dealt under section 31 and 31 A of the act and statutory licenses such as dealt with in section 51(1) (j) of the act. The ingredients satisfied to attract the section 52 (l)(j). Judgment The Supreme Court held that the act of the defendant is not at all an infringement and petitioners cannot claim damages for infringement. In Vicco Laboratories Vs. Art Commercial Advertising Pvt. Ltd. & Others AIR 2001 SC 2753 The narration of brief facts are the petitioners were carrying business as manufacturers of ayurvedic pharmaceuticals products which were sold under brand name 'Vicco' and have acquired substantial reputation. The defendants were agent appointed by the plaintiff to produce the serial for plaintiff to promote his products, but the defendants produced another serial on the same name hence the plaintiff due for damages. Pleadings of plaintiff The plaintiff has employed the said respondents as advertising agent in respect of the products manufactured by the petitioners for number of yen I'M. The petitioners were the sponsors for the serial "HUMLOG" and also made an agreement with Doordharsan for advertising their products through the agency of respondents, and petitioners agreed to pay the entire cost for the said productions. The respondents produced the serial entitled "yeh jo hai zindagi" in the expenses of petitioners, and it gained much popularity in public and became exclusive 97

and popular serial. The petitioners claimed that the exclusive right to use the title therefore belonged to them and the 2nd part was produced and telecasted without the name and sponsorship of petitioners. And petitioners vest all T.V. and video rights of the sponsored program in Hindi "Yeh jo hai zindagi" and vest with them. Respondents Pleadings Respondents contested that petitioners were not the owners of the copyright in the said serial within the meaning of section 17 of the Copyright Act 1957 and copyright in respect of the said serial belongs and vest with the Copyright Act 1957 and they contended that it was all along agreed between the petitioners and respondents that the copyright in the said serial would rest exclusively in the respondents and not in the petitioners. Thus respondents name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same. Respondents claim that the petitioners have received 50% of the royalty from distributing servicing Pvt. Ltd. The advertisements issued by the petitioners themselves in various news papers to give wide publicity to the said serial would indicate that the serial mentioned those respondents are the owners of the copyright in respect of said serial and the petitioners claim in that behalf in devoid of any substance. Judgment In the present case the Supreme Court held that the petitioners were not able to establish that respondents were the agents of petitioners. In the course of their employment, valuable consideration paid by the petitioners to them, when these facts had not been proved and established hence the petitioner cannot claim copyright and it did not attract section 17 of the Copyright Act.

Exphar SA V. Eupharma Laboratories Ltd. 2004 (3) SCC 688

98

In a nut6shel their controversy was revolving around the nature of relationship with which the parties got together to carry on their nature of relationship with which the parties got together to carry on their profession as advocates. infringement of which was claimed in the suit.2 carried on business within the jurisdiction of the Delhi High Court. Appellant No. 99 . Diljeet Titus.2 to the trademark Maloxine. From the circumstances of the case it was held that there was allegation of misuse of data by the defendant.2 had infringed the copyright of Respo9ndent No. The ownership over the copyright material created by defendants while in the employment of plaintiff was claimed. The plaintiff claimed that the defendants were only working for him and were paid remuneration in the form of fee while he remained in control of the professional business of the organization.2 had not claimed ownership of the Copyright of the trademark. The Division Bench went beyond the express words of the statute and negatives the jurisdiction of the court because it found that Appellant No.2 was certainly “a person instituting the suit”. Diljeet Titus.2 at its office in New Delhi8 and in that notice it was alleged that Appellant No. Adebare (2006)32 PTC 609 There were two counter-suits filed by the two of parties aggrieved by the conduct of each other.The Appellant of No. On the other hand the defendants in the said suit claim to have worked more in the nature of the partnership with Mr. Advocate V. It was held that the jurisdiction under the Copyright Act is wider than that of a court as prescribed under CPC.2 may not be entitled to the relief claimed in the suit but that was no reason for holding that it was not a person who had instituted the suit within the meaning of section 62(2) of the Act. Appellant No. Alfred A. It was held that the prima facie it was the plaintiff who was the owner of such copyright material. The interim injunction was granted. The appellant’s plaint said that the “cease-and-desist” notice was sent to Appellant No.

Kasturi Lal 2006(32) PTC The plaintiff No. The plaintiff No. The interim injunction was confirmed and it was held that the printing and publishing of a guide and reproduction of essentially required matter from prescribed book is not infringement. It was held that the industrial commercial use of design is not covered by the provisions of the Act but is governed by the Designs Act. As the plaintiff failed to have the design registered under the said Act. Anand Raj Anand 2006 (32) PTC 779 The suit was filed by plaintiff alleging that she had sung different songs in the film/album of defendant but one of the defendants showed herself as the singer in publicity material in spite of the fact that it was the voice of the plaintiff over the defendant were mixed with the voice of the plaintiff. The work of plaintiff had been registered in copyright office at USA. It was held that the plaintiff was entitled to interim injunction. if they chose to sell the songs after deleting the voice of plaintiff. 2000. Neha Bhasin V. The defendant allegedly copied the designs and artistic work of the plaintiff and was passing off as his own work. Syndicate of Press of University of Cambridge V. Dabur India Ltd 100 .1 and the plaintiff No.Microfibres Inc. the plaintiff was not entitled to any relief.1 which traded in the name of Cambridge University Press filed a suit. The direction was given to the defendants in regard to the manner and sale.1 averred that it was a reputed publisher with an international standing and held all rights in respect of publication. V.2 (its Associate in India) had published the low price edition of the book in question. The plaintiff No. 2006 (32) PTC (Del) The suit alleged the violation of copyright in artistic work applied to upholstery fabrics. The original CD though claimed to be withdrawn from the market was still in circulation and the songs sung by the plaintiff was being credited to the defendants. Girdhar & Co.

Industries Manu/SC 2244/2008. The column immediately next to it contains the same features in the devnagari script. arrangement of features and get up as that the plaintiff's the essential one column has the words Red Tooth Powder within a yellow blurb. On one column has the word RED tooth powder within a year blurb. it had allegedly adopted a unique colour combination and arrangement of features which was subsequently changed respondent claims that the said manufacturer of a tooth powder known as 'Sujatha'. K. The respondent is said to have been using an identical colour scheme layout.R. The details of the product are set out in another column. A suit was filed by the appellant against the respondent.Vs. It was alleged that the said carton constituted an artistic work within the meaning of section 25-C of the Copyright Act 1957. Pleadings of the Plaintiff Plaintiff adapted a new certain while retaining the conical shape and white cap for their product which is described as follows. AIR 2008 SC 3123 In this case the court held that defendants had infringed the copyright of plaintiff and an order of permanent injunction was passed. and manufacturers name etc. The narration of brief facts Appellant is a manufacturer of a product known as 'Dabur Red Tooth Powder' or Dabut lal Dant Manjan in the year 1993. A relief claimed by the plaintiff is 101 . immediately below the blurb is a oval shaped picture of a family with a yellow background. It is said to have infringed the copyright of the appellant. mrp. A column which contains the representation of a family in an oval shape picture. The top half of the third column contains an oval shaped device containing a diagrammatic representation of the herbs that constitute the ingredients of plaintiff's product. The third column sets out the details including composition weight.

It has not been able to establish that it carries on any business sat Delhi for our purpose the question as to whether the defendant had been selling its procedure in Delhi or other is irrelevant. get up layout or arrangement of features. selling. proprietors and promoters as the case may be their servants and agents. including its colour sand combination.a) An order of permanent injunction restraining the defendant. using or otherwise reproducing any of the artistic features thereof in any material from amounting to an infringement of copyright. printing. representatives. their partners. M/s Entertainment Network Ltd. M/s Super Cassette Ltd. The primary ground that the plaintiff was not a resident of Delhi. the Delhi high court could not have invoked its jurisdiction interms of 1957 act. Vs. The court finally held that plaintiff may seek a remedy which can otherwise granted by the court. It is possible that the goods manufactured by the plaintiff are available in the market of Delhi or they are sold in Delhi but that it would not mean that the plaintiff carries on any business in Delhi. offering for sale or otherwise directly or indirectly dealing in tooth powder packed in the impugned packaging of any other packaging as may be a slavish limitation and a substantial reproduction of the Dabur Red Tooth Powder container from committing any other acts as is likely to be cause confusion and deception amounting to passing off. publishing. their partners. Judgment In this case. representatives dealers and all others acting for and on their behalf from reproducing any of the artistic features of the plaintiff's Dabur Red Tooth Powder container packaging/pouch. AIR 1445 SC 2008 102 . proprietors and promoters as the case may be their servants and agents. dealers and all others acting for and on their behalf from manufacturing. b) An order of permanent injunction restraining the dependents.

Pleadings of Petitioner Super cassettes through it lawyer by a notice dated 21. It has copyright over a series of cassettes and CD's commonly known as T-series. The appellant entertainment network broadcasts under the brand name 'Radio Mirchi". to give an undertaking that it shall not broadcast the sound records of Super Cassettes through its radio station without a valid license and payment of royalty super cassettes again by immediately desist from broadcasting sound recordings of Super Cassettes clients through its radio station. 103 .2002 in views of the said infringement of his copyright called upon ENIL. to super cassettes with in 15 days of receipt hereof under intimation to super cassettes failing with super cassettes have positive instruction of its clients to initiate such legal action both civil and criminal against the directors who are responsible for the said infringement. Brief facts of the case The first respondent is one of the leading music companies engaged in the production and acquisition of rights in sound recordings. with out any further notice and in that case you shall be further liable for all cost and consequences there off. Appellant is a company which holds license for running FM radio stations all over India.00. It has copyrights in cinematograph films and sound recordings. Super cassettes clients had given an undertaking that if shall not broadcast the sound recordings of super cassettes clients through its radio station without a valid license and payment of royalty pay a sum of Rs. the holding company of the first respondent and phonographic performance Ltd. The contention is that the music is for general benefit of society at large. It is a leading FM radio broadcaster disputes and differences arose between Bennett Coleman & Co.In the above case the court awarded the costs to the defendants.. Ltd.50.000-00 (fifty lakhs only) as liquidated damages for illegal broadcast and acts of infringements committed by it. As regards the playing of the songs of which copyright belongs to the respondent in their FM radio network.1.

the board has the jurisdiction to entertain any application for grant of compulsory license. As it was a case of abuse. Brief facts of the case The Babbar Wrechers claims to be engaged in manufacturing and designing wreckers (known as LRVs) for more than 40 years and to having supplied them to various government departments. How far and to what extent appellant was infringed the right of the respondent is a matter which may be taken into consideration by the board. The party shall pay costs. & Others AIR 2011 PTC 164 In this case the court gave an order in favour of the plaintiff and ordered for payment of damages to plaintiff. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. as indicated herein before the board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty.Judgment In this case the court held that "use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse. Vs. We do not refuse to license that copyright without an appropriate payment for past use agreement. A suit was filed as negotiations with the respondents in the suit as soon as it came to know that super cassettes is not a member of PPL it gave an undertaking. but there is no evidence of that where unauthorized use of PPL's copyright is taking place. However we do not approve the manner in which the board has dealt with the matter be considered as a fresh on merit. The equipments are reliable and easy to operate and 104 . Babbar Wreckers Private ltd. Ashok Leyland Ltd. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued. each case must be considered on its own facts.

terminating the license to use the drawings and specifications. Used by the Ashok Leyland and perfect for assembling the wrecker units. specifications and technical know-how the Babbar wreckers allowed it to use the drawings as a gesture of good will. Ultimately. the letter kept on evading and giving vague assurances. The plaintiff argues that the pleadings and documents on record prove beyond doubt. vests in the plaintiff.4. that it is the copyright owner of the drawings conforming to the specifications of 2001 and 2005. The plaintiff claims that the drawings of his copyright are artistic works. Pleadings of Plaintiff Babbar wreckers complains that there was an agreement took place when Ashok Leyland was placed with order of supply of 286 LRV the contract for fabrication and supply of all the wrecker assemblies was placed perfect. but at the same time cannot be construed as various contracts between them 2000-2005 where such work orders were procured by Ashok Leyland for supply of the entire LRV. 105 . which both Ashok Leyland and perfect have infringed. three dimensional forms. It is submitted the authority and right to exclusively reproduce the drawings in material.are mounted on suitable commercial vehicles. Babbar Wrechers claims to have earned substantial reputation and goodwill for the performance of its Wrecker equipment and also claims to have spent considerable money in designing and development them having regard to their functionality. a legal notice dated 7. It is submitted that if the past precedent and practice were to be taken into account.2009 was issued to the first three defendants. It is stated that this was breach of agreement as Babbar Wrechers had put in tremendous labour and effort in securing its drawings approved and was entitled to at least half of the order but was content to maintain cordial relations by executing the orders for wrecher assemblies only in respect of SOLRVS. Ashok Leyland procured the orders for supply of the vehicles with the wrecker assemblies invariably was given a proportionately lower quantity. Babbar Wreckers was entitled to manufacture at least 50% of the total orders placed upon Ashok Leyland. the fabrication and supply of 1121 vehicles was given by the central government in five lots. The plaintiff's engineering drawings.

3. N. Ranga Rao & Sons Vs. The appellant prayed for permanent injunction restraining the respondent herein from in any manner a infringing the plaintiff's copyrighted artistic work "WOODS". Brief facts of the case The plaintiff was the manufacturing company of artistic work "WOODS" and the respondent was using the same trademark which is offending trademark "HEAVEN WOOD" or any other mark which is identical and similar to the registered trade mark "WOODS". The plaintiff had only conceived and adopted the "WOODS" in respect of agarpathies and applied for registration of the same on 24. Ashok Leyland is also directed to furnish a bank guarantee for the sum of Rs. At the same time the court is conscious that it has been beneficiary in previous contracts and that 3-7% royalty was being paid to it. permanent injunction restraining the respondent herein from in any manner passing of its agarbathi products bearing the offending trademarks and the plaintiff asked action for passing off committed by the respondent and costs of the suit and permanent injunction restraining the respondent from using the similar copyrighted work "HEAVEN WOOD". Plaintiff is the leading manufacturers of the agarpathies and their names are very well established in the public.in favour of the registrar of this court to satisfy any money decree. which is identical and similar to the registered trademark.Judgment The court held that the plaintiff has been unable to establish prima facie to its being a copyright owner. Ashok Leyland is directed to furnish an undertaking to pay damages in the event of plaintiff success.00.1. Koya's Perfumery works 2011 PTC 140 madras In this case the court directed the respondents to render the true profits for passing off action and for costs of the suit.1985 and subsequently obtained registration of 106 . within four weeks from date. Pleadings of plaintiff/applicant/appellant It is argued on behalf of the plaintiff.000/.

font and the words appearing on the font are also of different context and conveys different meaning and it cannot create any confusion with regard to the product for any purchaser. 1958. Judgment The court held that the subject matter in this case that the respondent changed the size of the font and brought alteration in compliance of the order.trademark "WOODS" in respect of agarpathies and dhoop (incense sticks) under the trademarks act. 1958 and it is periodically renewed. Union of India & Another 2011 PTC 280. 107 . Castrol Limited Vs. Therefore the said plaintiff prayed for interim injunction restraining the respondent herein from doing the same and action for passing off action. This court has also compared the carton of the agarpathies manufactured by the appellant and the respondent and found that the carton of the respondent contains entirely different colour-scheme. The court dismissed the suit and no order for costs because there is no infringement of the copyrighted work. The petitioner also designed the agarpathi cartoon bearing trademark "WOODS" in an artistic manner with a peculiar colour scheme and getup during the year 1996 and also registered the same under the Copyright Act. The appellant became aware during the end of 2009 that the respondent has started the manufacture and selling agarbathies under the identical carbon bearing the offending artistic work of WOOD and it amounts to malafide act. It further contended that appellant had spent considerable amount and efforts in promoting the sale and due to the quality of their products they had done business to the tune of several crores of rupees since its inception under the trademark and the artistic work "WOODS".

The narration of brief facts In the case the petitioner has filed an application for his two artistic works in respect of Castrol logo under copyright act 1957. the impugned order was passed. to the DROC for registration of logo castrol for his artistic in respect of which two applications were submitted in original and sent to Registrar of Copyright (ROC). However. The petitioner was doing the business of manufacturing processing and marketing high grade lubricating oil products in the United Kingdom and other countries.e. But the DROC impunged the application. but it is stated that petitioner again received a letter from DROC reiterating discrepancies. without being heard and held that the act of DROC (Deputy Registrar of Copyrights) has set aside. NOC in original as well as duly stamped. The petitioners has sent a letter submitting documents of NOC in original as well as duly stamped POA. The afore mention applications were filed by it on 2nd August 2004 in accordance with the requirements of section 45 CA. Pleadings of petitioner The counsel for the petitioner stated that all the documents were submitted i. but petitioner sought further extension of time till 18lh September 2009 for submitting the documents. Judgment By observing the petitioner arguments and relevant cases cited by the petitioners. By the letter dated 17th August 2009. After a few months a letter was received by the counsel from the DROC asking the petitioners to furnish the documents of NOC in original authors has no objection in registering the copyright in the name of the applicant and POA has not been submitted on stamp paper and please submit them duly signed by the applicant. the court held that the petitioners can file a petition on the ground that the 108 .In the above case the court held that artistic works in respect of castrol logo have been abandoned. The petitioner requested for time and again filed the said documents.

an automatic accounting and transaction . the impugned order has obviously been passed without affording the petitioner an opportunity of being heard. Plaintiff claims to be global leader in developing application software products for real time business developing process and also claim to be world's largest overall independent supplier. training and certification of its customers and partners in India. In a case decided in 2011 regarding SAP Akfingesell schaft & another Vs. From the narration of facts in the petition it appears that the petitioner the DROC ought to have given the petitioner an opportunity of being heard before deciding to simply close the application as "recorded".processing program that featured standard software and real time computing and later came to be referred as R/1. Pleadings of Plaintiff 1) Plaintiff states that the software program developed and marketed by them are 'computer programs' with in the meaning of section 2(f) of the Indian Copyright Act. If the petitioner is still aggrieved by the decision then the petitioner can seek appropriate remedies in accordance with law. It is alleged that in early 70's plaintiff developed RF system.impugned order of DROC is appealable before the copyright board under section 72 (1)CA. implementation postimplementation support. And the decision of the DROC on the two application again submitted by petitions will be communicated to him with in 4 week. Plaintiff's software has been used by the defendant without any license and claimed to seek delivery up of the infringing material besides seeking rendition of accounts.M/s Neologik India. Software piracy. The above submissions have been considered. the SC awarded damages for the violation of rights of plaintiff. and it is doing business in India. and sales of SAP solutions. Sadia Pasha Proprietor. The brief facts are the plaintiff company is incorporated in Germany. 109 .

the plaintiff also claim to have specific license agreements to govern comprehensive and continuing education training programs.neologikindia. it is clear that the defendant infringed the copyright of the plaintiff by using the pirated software R/3 and by imparting training 110 . store and display integrated end to end solutions. recovered two servers having pirated version of plaintiff's computer program SAP1 R/3 version 4. employ utilize. Besides End User License Agreements (ELUAS). It is also alleged that both India and Germany are signatories of the Berne Convention. 4) Plaintiff company developed and introduced SAP in the year 1979 and SAP/R/3 in the year 1992 plaintiff company stated that their products are manufactured to meet the specific needs of each customer aid are not available off the shelf or through e. execute. 2) It was found by the plaintiffs that on its website www.com the defendant was making offer for providing various training programs in relation to plaintiff's software products and had also been regularly advertising the training programs offered by it with respect to the software programs of the plaintiff. It further stated that it never even grant a single valid license in favour of defendant and police in the raid on 19th October 2004.1957 and also included in the definition of a 'literary work' as per section 2(o) of the copyright act. 3) It also alleges that due to high levels of customization the software products they have purpose specific versions of their software license agreements which are licensed for particular stream of use and cannot be used in any manner or for any other purpose. especially on SAP 4/3 and ABAP/4. required for effective and meaningful use of its products. 5) It further stated that the plaintiff's company needs specially trained software professionals to load. Universal copyright convention and WTO agreement and therefore rights of the plaintiff companies are protected in India under Copyright Act.7 IDES. And again within 3 months the defendant again resumed his illegal activities of imparting unauthorized training in plaintiff's software products.stores etc. Judgment By the reasons given above. access.

therefore.6 Lac for the purpose of damages and have also paid the requisite court fee on it. On April 22. 2012. 2011). following which it will be aired in television channels across the country. It is at this stage that a recent petition has been filed seeking an injunction from broadcasting the film itself or at any rate the song therein titled "Ooh La La Ooh La La". Mukerji at the Calcutta High Court on 18 April. the defendant argued that such a small part of the old song spanning a few seconds 111 . During the course of arguments the counsel for the plaintiff has prayed to grant permanent injunction and punitive damages. The S. 2012. from an old Hindi film ‘Mawali’. having Mr. which has attained considerable popularity till date since the music of the film had been released on television on 21st October. l Lac to the plaintiff against the defendant. However. In Saregama India Ltd Vs Balaji Telefilms Ltd. During the hearing of this matter. which stands in violation of the petitioner’s copyright in the song "Ui Amma Ui Amma". & Ors was heard before Justice I. Punitive damages were granted for unscrupulous persons who actuated by dishonest intention. the relief of damages were granted to the plaintiff.using the aforesaid software. And the plaintiff have valued the suit at Rs. The petitioner alleged that the said song.P. Defendant is restrained from using any pirated/unlicensed software of Plaintiff Company including R/3 and is further restrained from imparting training in the aforesaid programs of plaintiff without requisite license. 2011 (and the film itself was released in theatres on 2nd December. both the songs were played on a laptop for the judge’s benefit and he found quite a strong similarity between the tunes. The recent histrionic abilities of the Bollywood actress Vidya Balan in the widely-acclaimed movie ‘Dirty Picture’. Bappi Lahiri as its music composer. the movie is due to have its satellite launch.C took a stand in favour of the plaintiff and held that the defendant has infringed the rights of plaintiff. contains the lyric and tune "Ooh La La Ooh La La". basing on the case punitive damages amounting to Rs.

[Bombay High Court. then the above principle of automatic grant of injunction may not be applicable. [(2004) 3 SCC 90]. 2011]. the two aforementioned Bombay High Court judgments went on to posit that when the balance of convenience is altered by reason of delay. despite the difference in words. The petitioner countered the argument by saying that S. the Court considered the case of Medas Hygiene Industries (P) Ltd. An important issue was why the petitioner delayed so long before bringing this infringement suit. Rajesh Roshan & Ors [2009(40) PTC 78(Bom. [Bombay High Court. which. 22nd December. Given that considerable money has already been spent in 112 . It was also held that the petitioner. Red Chillies Entertainment Pvt. 6th August. Regarding the question of inordinate delay by the plaintiff. Ajay Monga vs. & Anr. the petitioner relied on the twin cases of Mr. the Court made two important observations regarding this. The Court in the present matter held that there existed substantial similarity between the two tunes and their overall impact. by arguing that even a small part of the song is capable of copyright protection. if the period of assignment is not stated it shall be deemed to be five years from the Deed of Assignment]. However. resulted in loss of plaintiff’s right to get an ad interim order of injunction. The petitioner relied on a deed of assignment of copyright to strengthen his case. Vs. Sudhir Bhatia & Ors. However. in the light of Ram Sampath vs. the allegedly offending part of the song "Ooh La La Ooh La La" cannot be deemed to be a copy of that part of the old song. Vs. Ltd. And Ors.has virtually no content in lyric or music and hence there is no copyright of any person in it. Therefore. However.)] made a prima facie case of infringement. arguing that there was no specific duration of the assignment mentioned in the deed [As per Section 19(5) of the Copyright Act. the defendant contested the validity of the said deed. which stated that if infringement is established then injunction must follow as a matter of course. 19(5) was introduced in the 1957 Act at a much later point of time after the assignment. The Court found that the deed appeared prima facie to be an unconditional and absolute assignment and before the amendment and hence rejected the defendant’s challenge regarding the deed’s validity. 2008] and Nariman Pictures and Ors. according to the defendant. 1957. To support this claim. Baba Arts Ltd.

buying the broadcasting rights and that the film is scheduled to be telecast on 22nd April, 2012, grant of an injunction at this stage, according to the defendant, would cause irreparable damage to be suffered. Considering such a situation, the Court refrained from issuing such injunction, in the light of the balance of convenience argument. The Court also considered petitioner’s letter dated 7th February, 2012, wherein it had informed the defendant of such infringement, but expressed willingness to grant license for consideration. It was the Court’s opinion that the petitioner had not lost the right of exploitation of the copyright by sale of the license to the defendant and given that it had been deprived of such right by the defendant’s subsequent actions, it is entitled to compensation from the defendant. The defendant was thus permitted to carry on the telecast of the movie as scheduled, but was also directed to deposit a sum of Rs. 2 Crores (the estimated amount for which the petitioner might have issued license to the defendant) with the Registrar, Original Side within 25th April, 2012, to the credit of the suit. It thus seems good news for the public who will still be able to enjoy the movie from April 22 onwards without any cuts/deletion, although perhaps the time has come to question the tactics employed by certain people to file infringement suits just prior to a movie’s release/satellite launch, knowing well that the producers/distributors will be hamstrung by the fear of suffering ruinous financial losses in case an interim injunction is awarded.

CHAPTER - 6 CONCLUSION

113

As the law is not static it has to be changed according to the changes in the society so also copyright law. Law also changed in order to suit the changing needs of the society. However law should preserve the original purpose of copyright, which is the protection and acknowledgement of the creator’s work regardless of interest of publishers. The main interest of many authors is to protect the integrity of their works. Profiting from the use of the work is secondary in many cases, the commercial publishers’ interest. On the other hand to got profit from the work. When the present copyright law was enacted in 1909, the problem of photocopying copyrighted works did not exist. The issue came into existence with the introduction of copying machines; which are capable of transferring and replicating. Copyrighted materials quickly and in quantity, but also of making copies which in themselves are adaptable for the production of further copies. The problem has intensified in recent years with the progressive development of relatively in expensive copying machines which have simplified and greatly extended the practice of photocopying among scholars, researchers, students and to the publishers. The implications of this phenomenon on the copyright law have a direct bearing upon the dissemination of information in general and scientific and technical information in particular with the "explosion of information and the flood of materials since the 19th century. Library photocopying has become essential in the effective dissemination and use of information for research or case study. The urgent and serious needs of readers and libraries in this area are manifested in the library clientele's demands, the vast number of research projects, the government and foundation grants in support of such projects, and the Government’s policies and aid to libraries in support of photocopying. The publishing industry is having a moral obligation to disseminate knowledge but it is also has a "business or legal obligation" to stockholders, employees, dealers and clients to stay a float by realizing profits that will in turn enable publishers to fulfill their moral obligation towards the public. Copyright law is an incentive to the authors and their assignees to create and disseminate knowledge. It is in essence, a monopoly, a trade-off or a price that society has to pay in return for the advancement of science and useful arts. Statutory copyright therefore is based on a 114

profit motive for both the author and entrepreneur. The question is whether the interest of the copyright owner is sufficient to warrant the extension of the copyright monopoly to cover library photocopying. During the first hundred years, the Berne Convention, containing as it does a detailed codification of provisions, has helped greatly in harmonization of laws over a considerable part of the world; these laws are governed not only by the principle of national treatment but also by provisions setting minimum standards for a comprehensive protection of the rights involved. The challenge to international copyright in the last twenty of the first hundred years of the Berne Convention was to find solutions to the problems of the developing countries; some of these problems will perhaps continue for the certain time. The main problems to be tackled in the future will, however concern those posed by the new technologies. The development of technologies which are having both quantitative and qualitative effects on copyright are now quite well known in specialist circles, the main ones are reprography private recording of phonograms and videogames, cable television, satellite broadcasting, computer storage and retrieval of works protected by copyright, computer programs data bases etc. The impact of new technologies on the rights of copyright owners. Some important steps are certainly indicated already the starting of second century of the Berne Convention, where by copyright proprietors could maintain their rights in the face of fast developing technologies. First of all these would have to be in the direction of enforcement procedures in particular through the enhancement of civil remedies and panel sanctions. It is necessary to contain the problems of commercial piracy, illegal reproduction and distribution of protected works and other infringements of copyright which are becoming increasingly widespread with the new means of reproduction. The second appears to be that national copyright legislations need a constant review and updating from time to time in order to provide solutions to these and other problems posed by the constantly and rapidly developing technologies. There is also the need for action by governments nationally both in terms of an expression of political will as well as administrative determination to follow up on these. In fact 115

who had exhibited a film entitled "Love. the legal profession and the businessman will be familiar than it is to draft a law on the basis of copyright intellectual concepts which are a lien to the legal philosophy and practice of the country. The action was brought by BPRS against the exhibitor. life and laughter" alleging that there by the exhibitor committed infringement of their copyright in some musical works 116 . Half a century ago the Bombay high court had examined the same question in the Wellingdon cinema vs. largely on the positive role of national governments in providing effective legislation and constantly reviewing it.international copyright as enshrined in the Berne Convention as well as the development of creativity. cultural exchange as also the cultural industry. providing a balance between the needs and interests of authors. been drawn upon in the preparation of copyright legislation. The conventional rights effectively implemented could serve as an incentive to one's national authors and their assigns to create and disseminate knowledge. as well as ensuring efficient implementation of such legislation. and rejected the contention that by authorizing the use of his work in a cinematograph film or record the author or composer gave up the performing right in his work so far as exclusive performing right came into existence with respect to the film or record so created. the performing right society ltd. the Wellingdon cinema. as also stated earlier. to promote the industry using authors’ works and to render it possible to distribute such works in an organized manner among the widest possible circle of interested persons. The Berne Convention has influenced the copyright policy of several countries. publishers other copyright owners. including a number of developing countries and has. as well as those of the general public. the arts and of knowledge in general. It is something the society necessarily accepts if it wishes to encourage intellectual creativity to ensure the progress of the sciences.. It may be commented that for a country contemplating new copyright legislation it is more important to ensure that the legislation harmonizes with the general jurisprudence and the main body of statute law within the country with which the judiciary.

makes this abundantly clear.composer or employee . The performing right in the musical works had been assigned to the BPRS. The healthy growth of this institution is essential to protect intellectual works belonging to this category from exploitation. the exclusive rights in respect of the separate copyright in a cinematograph film.14 (l)(9a) are independent of each other. In all other cases the rights belong to him exclusively.author in the cause of his employment under a contract of service. It is the statutory duty of a performing right society to publish the tariff of fees. The provision in the act that the exhibition of a cinematograph film after the exploitation of the term of the copyright in it will not constitute an infringement of the literary or musical work utilized in the film will be redundant if as held by the Supreme Court and the Calcutta High Court. The only exception is that contemplated by section 17 proviso (c) where a work has been produced by an employee . or granting a license similarly. subject to the proviso that it would not entitle the film producer to perform the said musical works or any part there of in public and permission to perform the same shall be obtained by the license from the owner or controller of the performing right there in. The license was. until he assigns any of his rights in the maimer prescribed by the law. composers and publishers of musical works and for the performance of such works which number in thousands at innumerable theatres and other public places. Its failure to do so may bar infringement right society is envisaged as one for the protection of authors. The several exclusive rights of authors and composers of literary and musical works listed in Sec. royalties and charges in respect of the public performance of works to issuing or granting licenses. They are not in any manner affected by or sub-ordinate to.(songs). That provision is a 117 . however. there is no such infringement by the exhibition of the film even when copyright subsists in the film. It acts as a sentinel and guards against the deprivation of the performing right of authors and composers who individually are often too weak in their bargaining strength to protect themselves. but a couple of months earlier the film producer had obtained a license from the composers for using them "in the production and exhibition of the film".

it would be true to say generally that the Indian law does not. as well as their organization the performing right society or else parliament must take necessary legislative measure to restore authors and composers the protection it intended for them when it enacted section 13(4) in the Copyright Act. In this sense. these offences are not strict liability offences either. as a priority task. Sections 63. If this is proved the plaintiff is only entitled to injunction and account of profits but to no other remedy.necessary of Section 13(4) and gives recognition to the legal position that the two copyrights are independent of each other. All that has to be proved is the fact of infringement from that the liability follows. The present structural dis-incentives to the use of protective provisions of copyright legislation have to be removed. And this can perhaps be best 118 . the obstacles imposed by the crisis of Indian adjudicatory system. The Indian laws. 1957 which the judicial decisions have taken away. Clearly. If a defendant permits for profit the use of any place for public performance of copyrighted work. Bu t on the other hand. subject to the above mentioned solitary exception. he can use under section 51(a)(ii) show that the was unaware of subsisting copyright or that she had reasonable grounds to believe that such copyright did not subsists at the relevant time. 65 and 67 clearly prescribe that only persons who knowingly infringe copyright are committing penal offences. the Indian law does not distinguish between direct and indirect infringement of copyright for purposes of civil remedies. especially enormous delays. As regards civil liability however. regard knowledge of infringement on the part of the defendant as a basis of liability. EIMPA and with it the damage done to authors and composers. barring one exception. no longer cognizes the possibility of an innocent infringer. But in all other cases defined by section 51 and the chapter providing for civil liability. staggering costs and wavering decisional law have to be redressed and access to adjudication improved. It is hoped that the Supreme Court will avail itself of the earliest opportunity to undo its unfortunate decision in IPRS Vs. the defendant who does anything to infringe copyright or deals in specified manner with infringing copies remains liable for damages for infringement. It is obviously needed to increase copyright consciousness as an aspect of the Indian social and cultural development and justice.

licensee or merely as an agent. the Courts have endorsed such a right and allowed the licensing bodies to bring a legal action for the infringement of the copyright/performers rights. 6. Also at no point is such position of law of any disadvantage to the alleged infringer. By and large in no country the statute provide prosecuting power on these bodies for any infringement of rights thy license.2 SUGGESTIONS After this comparative study it is clear that except in India the right to sue for infringement of copyright/performers rights of a licensing body are recognized in most of the countries across the globe.done through a network of easily accessible copyright or intellectual property. is that in every system a licensing body plays a major and effective role in policing the infringement of copyright/performers rights. whether in the capacity of an assignee. which is unambiguous. extreme expenses and difficulty for the individual owners of copyright/performers right to enforce their rights both in the country of origin and outside. This function of suing the infringer of copyright/performers right (if) carried out by a licensing body will make a more effective body for collective administration. tribunals throughout the country. 119 . Also. Another thing. It is therefore in a much better position to sue for the infringement of copyright. the bargaining power of the individual right owners is very weak vis-àvis the power of the licensing bodies. It will also prove more convenient for the owners of these rights as once they are the members of the licensing body they can be satisfied that the latter will spot and further take care of any infringement of their rights (though the cost of litigation is borne by them). if the owners of these rights so desire. Time has certainly came in India for a more mature appreciation of the fact that copyright law & justice are more than market and property categories primarily protecting copyright industries. Copyright legislation must be so designed as to protect as well as the rights of intellectual and cultural laborers’ upon which ultimately the social interest in cultural progress depends. But when these entities are empowered by their members. It also cuts down on unnecessary litigation.

There are two categories of TPM – access control and copy control Access control TPMs prevent unauthorized access to material while copy control TPMs prevent unauthorized copying. The Copyright Act does not include regional coding on DVDs or computer programs in its definition of an access control TPM.It is due to these aforementioned reasons that it is submitted that if authorized by the members. Technological Protection Measures (TPM) is any technological devices or a tool that prevents unauthorized or illegal access to. However. this TPM installed a Rootkit which left the user’s computer vulnerable to attacks by malware or spyware. exclusive licensee or as an agent. there is no reason why in India too a licensing body should not be permitted to initiate a suit for the infringement of copyright/performers right. whether in the capacity of an assignee. Fair Dealing and Personal Use. The users was usually unaware of that the Rootkit I been installed and therefore their machine was vulnerable. Digital Rights Management (DRM) TPMs are controversial. import. The Indian Courts need to go beyond the literal or restrictive interpretation of the statute and need to look at the practicality of the issue at hand. Under the Copyright Act it is not permitted to use. A well known example of TPM is the Sony Root Kit which was included on Sony audio CDs and design to prevent music on the CD being transferred to a computer and then burned to another CD. films and computer software. works and infringing their copyright. supply or communicates devices to circumvent access control TPMs. And allow 120 . Legal action was taken against Sony and they recalled all the CDs that included the Rootkit. Access is restricted through use of password and/or encryption. as well as electronic artistic and literary works. or copying or reproduction of copyright materials. Copyright owners support the use of TPMs as they prevent users from illegally copying their Users of copyright material believe that although TPMs prevent infringing uses of copyright material. they can also prevent legitimate uses of copyright material under certain provisions such as the statutory Licenses for educational purposes. manufacture. TPMs are mostly used in material as sound recordings.

For 121 . as we may be able to provide another copy without the TPM.g. copy a ‘reasonable portion’ of a work for educational purposes. These exceptions permit the circumventing of a TPM but they do not cover the manufacture or supply of a device for circumventing a TPM. • Interoperability – It is permitted to circumvent a TPM on a legally obtained. This exception does not apply if the TPM being circumvented for additional purposes other than making an acquisition decision or if the work is available elsewhere without needing to circumvent the TPM. It is not permitted to circumvent a TPM to copy or access material under the Fair Dealing or Personal Use provisions. Educational Purposes – You may circumvent a TPM if you wish to exercise any of the rights permitted under the Statutory License. If you wish to copy the recorded music for educational purposes under the Music License but are prevented from doing so by a TPM. non-infringing copy of a computer program for the sole purpose of achieving interoperability between computer programs. so long as the copyright in the computer program is not infringed. • Assisting Persons with Print or Intellectual Disabilities A TPM can be circumvented for the purpose of reproducing or communicating material to assist people with print or intellectual disabilities. plea contact the Copyright Office. This exception does not apply if the TPM is being circumvented for additional purposes other than achieving inter-operability or if the work is available elsewhere without needing to circumvent. • Libraries and Educational Institutions – Libraries and educational institutions are permitted to circumvent TPMs for the sole purpose of making an acquisition decision regarding a work. There are some limited exceptions under certain circumstances. manufacture or supply such a device or provide a service circumventing TPMs.unauthorized access or copying. e. Legal action may be taken against anyone who deliberate or knowingly uses a device to circumvent.

while it is permitting that a TPM might be circumvented by an educational institutions to provide access to material for educational purposes under the Statutory License. 122 . the exception would not cover the manufacture or a supply of a device by an educational institutions to circumvent a TPM to provide access to material for educational purposes under the Statutory License.example.

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