For circulation amongst the

online course subscribers

Paper II

Study Material on

COPYRIGHT

Prepared and revised by

Mr. Jagdish Sagar
Mr. Zakir Thomas
Dr. Raman Mittal

Indian Law Institute

Bhagwan Das Road
New Delhi - 110001

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 PART I

1.1 INTRODUCTION: COPYRIGHT AND ITS IMPORTANCE;

INTERNATIONAL COPYRIGHT:

1.1.1 What is Copyright?

A bundle of exclusive rights in works: Copyright is the term we use for the bundle of
exclusive rights which the laws of most countries confer on authors to exploit the works
which they create.

When we say someone has an exclusive right to do something, we mean that no

one else can lawfully do it without the permission of the holder of the right.

The simplest and oldest of these exclusive rights is the right of the author of a book to
print copies of it. This was the right conferred by the first copyright law, which was
enacted in the U.K. in 1709 and is commonly known as the Queen Annes Statute. In
course of time, the bundle of authors exclusive rights has widened vastly, covering a
variety of activities in respect of a variety of works.

Neighbouring Rights: Besides the rights that authors enjoy in their works, there are
exclusive rights that others may enjoy in respect of works or otherwise, which are called
related rights or neighboring rights.

These include the rights of performers and of broadcasting organisations, which

we shall discuss later.

A flexible and growing bundle of rights: The protohistory of copyright, goes back to
the fifteenth century when, with the invention of printing, there developed in Europe a
system of royal privileges or monopolies given to publishers authorising them to
publish particular books. This system served the States interest in controlling what was

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published, but it also usually gave the holder of a royal privilege (normally the publisher)
an exclusive right.

From the eighteenth century onwards, the vacuum left by the abolition of the old feudal
system of royal privileges was filled by conferring this exclusive right on the author
(rather than the publisher) for a limited period of time.

This happened in Britain in 1709, as we have seen.

In France, the first copyright laws were enacted during the French Revolution, which
also abolished the old royal privileges.
The Constitution of the United States provided for both copyright and patent
protection.
Other countries followed suit with their own laws.

The same principle came to be applied to other kinds of work, such as artistic and
musical works, and to be extended to other kinds of right in them, such as the right to
perform a work, or to make translations or adaptations of it, etc. Copyright has proved a
very flexible, adaptable form of intellectual property protection and today copyright laws
bear on virtually every form of public or mass communication, including the print media,
radio and television broadcasting, films, music, musical performances and recordings of
them, computer programmes, multimedia and the internet.

Our lives, both at work and at leisure, are profoundly influenced by copyrighted works:

virtually everything we read is a literary work;

we are continually exposed to broadcasts, films, recorded music and live and
recorded performances;
many of us spend a lot of time, both at work and at play, in front of computers
which means we use computer programs which are a kind of literary work, and
view, hear or make available to others works which might be literary, artistic or
musical, or may be cinematographic (audio-visual) works or sound recordings;

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 we surround ourselves with artistic works (a term which also covers technical
drawings) and often with works of artistic craftsmanship;
we live and work in buildings, which may be works of architecture.

The need for copyright protection: It is significant that the Queen Annes Statute,
described itself as An Act for the Advancement of Learning:

copyright is the intellectual property right created to promote and reward the
creativity of authors.

There are always, no doubt, a very small number of creative people who will produce
great works without considering the reward, but that is not true of most of the works that
modern civilisation needs: would we have the same wealth of dictionaries and
encyclopaedias, textbooks, popular novels, cookbooks, guidebooks, popular music,
Bollywood films, computer software, broadcasts, soap operas, and the myriad other kinds
of work we use every day, without any incentive for the authors?

Further, copyright piracy not only cheats the authors and the industries that bring us their
works but also the public in terms of tax revenue, and damages the quality of a society as
more money enters the black economy.

It pays a country to protect copyright and encourage its creative industries in order to
promote both its cultural and intellectual vitality and the growth of its economy.

1.1.2 International Copyright:

The Berne Convention: The works protected by copyright are trans-national by nature;
therefore, merely protecting a work in one country is not enough. From the early 19th
century, bilateral agreements began to be executed between States for international
protection. A movement for international copyright developed involving the leadership,
among others, of the great French author Victor Hugo, and culminated in the negotiation

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of the first version (or Act) of the Berne Convention for the Protection of Literary and
Artistic Works on September 9, 1886.

The Berne Convention has since been revised a number of times, notably at Berlin in
1908, at Rome in 1928, at Brussels in 1948, at Stockholm in 1967, and at Paris in 1971.
Some further amendments were made in 1979, but the current version of the Convention
is commonly referred to as the Paris Act of 1971. A member country may accede
separately to each new Act of the Convention as it is signed: thus it remains possible for
a country to have acceded to, say, only the 1948 Brussels Act so far notwithstanding the
subsequent execution of the 1971 Paris Act; but it would now be possible for a country
that had not so far acceded to the Convention at all to accede only to the 1971 Paris Act.

India in the Berne Convention: In the earlier Acts of the Berne Convention, before the
1948 Brussels Act, there was a colonial clause under which the ruling colonial powers
accession applied to the areas and countries that it ruled. Thus, since Britain was a
member of the Berne Union from its inception, it applied to India as well. However, the
Government of India acceded separately to the Rome Act of the Convention and India
has been a separate member of the Berne Union ever since.

The Berne Convention is administered by the World Intellectual Property Organisation

(WIP0) having its headquarters at Geneva, which is one of the specialised agencies of the
U.N.

The TRIPS Agreement: The environment of international copyright protection changed

considerably with the negotiation of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement) in 1994, which required adherence to the
substantive requirements of the Berne Convention and added some morethus, it
described as being Berne plus. This is one of the various agreements administered by
the World Trade Organisation (WTO).

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The protection of intellectual property, including copyright, is thus now treated as an
issue affecting international trade. This has two important consequences:

Copyright is no longer a sphere by itself; rather a countrys failure to meet the

standards of intellectual property protection laid down in the TRIPS Agreement
may invite sanctions going beyond the sphere of copyright or even of intellectual
property.
A countrys policy and its negotiating stance in respect of intellectual property
issues is now but one of its counters in the wider game of international trade
negotiations.

How international copyright functions: The two basic principles of international

copyright are:

National Treatment: This means treating foreign works as if they were national
works. Thus, since India and the U.K. are both members of the Berne Union, the
U.K. is obliged to give works created by Indian authors the same protection that it
gives to works by British authors, treating them within the U.K. as if they were
British works; and vice versa.

However there are a few exceptions to the rule of national treatment, where the
alternative principle of reciprocity is applied.
The main exception relates to the term of copyright. Let us suppose country A
protects copyright for 70 years after the death of the author and country B for only
fifty. This means that country B will protect works by authors from country A for
only fifty years. Now if country A were to apply the national treatment rule, it
would nevertheless be obliged to protect works from country B for seventy years.
However, Article 7(8) of the Berne Convention provides an exception to the
national treatment rule, laying down that the term shall be governed by the
legislation of the country where protection is claimed; however, unless the

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 legislation of that country otherwise provides, the term shall not exceed the term
fixed in the country of origin of the work.

Minimum Standards: The principle of national treatment implies that a work will
enjoy varying standards of protection in different countries. To keep such variation
within reasonable limits, the Berne Convention and the TRIPS Agreement require all
member countries to incorporate certain minimum standards of protection in their
laws. Thus the basic minimum standard for the term of copyright is fifty years after
the end of the year of the authors death, and member countries must provide for at
least such a term.

The copyright symbol and the Universal Copyright Convention: The origins of the
symbol are interesting.

One of the basic requirements of the Berne Convention is that there should be no
formalities in respect of foreign authors, i.e. no author from a country of the Berne
Union should be required to fulfil any bureaucratic procedure (like registration of his
work) to enjoy copyright protection for it in another such country.

(Of course, since it would be invidious to require formalities from ones own
authors that one does not require from foreign authors, this has resulted in most
countries dispensing with formalities altogether.)

Now in the 1950s there were some countries, including the U.S.A., the then U.S.S.R., and
a number of developing countries, which were unwilling to adopt the standards of the
Berne Convention.

Some of these countries (including the U.S.A.) also retained some formalities as
a precondition for enforcing copyright in a work.

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The Universal Copyright Convention (UCC), administered by UNESCO, was negotiated
in 1951 to meet the needs of such countries.

It had lower standards than the Berne Convention in various ways,

and it addressed the question of formalities by laying down that the use of the
copyright symbol on a work would be sufficient compliance with any
requirement of formalities in another member country.

Thus (India being a member of both conventions) the only legal advantage an Indian
author would obtain by using the symbol on his work would be that of ensuring its
copyright protection in a country that was a member only of the UCC (such as the United
States until it acceded to the Berne Convention in 1976).

Now that all countries that are members of the WTO are bound by the TRIPS
agreement, which incorporates all the substantive provisions of the Berne
Convention, the UCC and its symbol have effectively lost their earlier
significance.
But the symbol remains useful as an indication that the author has asserted his
copyright in respect of the work on which it appears, and it continues to be used
mainly for that reason.

How do international conventions affect Indian law? The international conventions to

which India is party are not self-enforcing in India as they are in some countries: that is,
they do not automatically become Indian law that can be enforced by Indian courts.
Indian courts enforce only the laws enacted by Indian legislatures and, since
copyright is a Central subject in India, laws about it must be enacted by
Parliament.

However, where a question of interpreting our copyright law is concerned, the provisions
of a relevant international convention to which India is a party may be of assistance: it is
a reasonable presumption (unless the language of the statutory provision is absolutely

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clear to the contrary) that the legislature would not have intended to enact a law
inconsistent with existing international obligations.

1.2 SOME BASIC COPYRIGHT CONCEPTS

1.2.1 Works, or the subject matter of copyright:

Works, not ideas: Copyright protects works but not ideas. Neither does copyright
protect mere facts: it distinguishes between a work and the mere content of a work: what
it protects is the way in which the content is expressed.

Therefore we often speak of an idea/expression dichotomy, a work itself being

the form, such as books or other literary works, musical scores, drawings,
paintings, sculptures and so on, in which the content of the work is given
expression.

However, we very naturally think of such a work as having a sort of core identity which
remains identifiable despite a certain amount of change or adaptation; otherwise it would
be difficult to give it much effective protection.

A work which reproduces another substantially does not become an original

work merely because of superficial or cosmetic departures from the original, if it
is apparent that it has been copied from another: such copying is called non-
literal copying.

These concepts are important when a Court has to consider whether someones copyright
has been infringed: did the alleged infringer copy the work, i.e. the expression created by
another author, or did he create his own work merely using some of the same ideas and
factual content?

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Cases:
Baker v Selden 101 U.S. 99 (1879)
Hollinrake v Truswell 1894 3 Ch 420
Kenrick v Lawrence (1890) 25 Q.B.D. 93
R.G. Anand v M/s. Delux Films AIR 1978 S.C.1613

Fixation: The work we are speaking of is not the same thing as its physical vehicle or
container: it is a piece of intellectual, not physical property.

When you buy a book or picture or a CD you may become the owner of a piece
of physical property but you will not become the owner of the intellectual
property rights in it: you cannot exploit the work by making more copies of it
and selling them, and so on, unless the author specifically assigns these rights to
you or licenses you to do so.

So we have to think of the work as something immaterial, existing independently of its

different physical copies. In principle, thus, a work need not exist in any material form at
all.

However the laws of many countries1 do require, for essentially practical reasons,
that to qualify for copyright protection a work must have been fixed in material
form (though not necessarily by the author) e.g. a literary work should have been
written down or a musical work recorded in notation or otherwise.
Article 2.2 of the Berne Convention [Link to www.wipo.int] leaves it to national
laws to determine whether or not to require fixation in material form.
The Copyright Act, 1957 does not specifically require fixation of the work as a
precondition of protection. But in most cases, in practice, it would be difficult to
pin down the identity of a work, and consider an allegation of infringement, if the
work had not been fixed in material form.

1
These are countries of the common law group. Some of the major differences
between national laws will be discussed later.

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Originality: Copyright protects original works. This only means that to enjoy copyright
in a work its author should have created the work rather than reproducing another work.
It does not mean that the work has to be very novel or innovative: so we say that the
standard of originality required for copyright protection is low.

An author may borrow ideas and obtain factual content from any source
including the works of other authors, but if an author gives expression to such
facts and ideas in a new work, it is an original work: for example this course
material contains no new ideas and no facts which will not be found in other,
existing published works, yet it is an original literary work.

If a work could be expressed in no other way, so that there is a convergence between

its content and its expression, it may not be protected by copyright. This is
sometimes called the merger principle. CASES. Cf Baker v Selden, Hollinrake v
Truswell

We may pause to consider why copyright protects original expression rather than
content.

Patent laws do indeed protect ideas, but only very specific ones which are
innovative and have an industrial application, besides being non-obvious, and the
authorities concerned follow an elaborate procedure to determine the patentability
of an invention.
In the case of works protected by copyright, it would seldom be practicable to
identify original ideas--or the provenance of facts--with any degree of
certainty. Nor, assuming it were possible, would such a thing be at all desirable:
it would obviously make it nearly impossible to produce an original work.

There has to be some minimal creative, intellectual contribution in the arrangement or

presentation of material to make something qualify as an original work.

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 Recently, the Supreme Court of India in Eastern Book Company v. D.B. Modak,
(2008) 1 SCC 1 held the as far as he judgments of Courts are concerned, there cannot
be any claim as to copyright as the same is already in the public domain.

In most cases there is unlikely to be much serious difference of opinion about this,
but there are marginal cases (like a telephone directory) where courts may take
differing views of the matter in different countries, or at different times. CASE:
Feist Publications, Inc. v Rural Telephone Service 490 U.S. 340, 111 S.Ct. 1282,
L.Ed.2d 358 (1991)
The degree of intellectual contribution required may also vary somewhat
according to the nature of the work: for example, questions are more likely to
arise as to whether or not a particular article of everyday use qualifies for
protection as a work of applied art, or a particular building as a work of
architecture, than in many other cases.

Since it is usually difficult to prove the actual act of copying, the courts have to
consider the similarities between works to decide whether a work is original or has
been copied from another. As a general rule, the courts will consider the overall
impression created by two or more works to decide whether a work is original or is
the reproduction of another.

CASES
University of London Press v University Tutorial Press
(1916) 2. Ch 60101
Interlego v Tyco Industries (1988) R.P.C. 343 (J.C.)

The De Minimus rule: Though a work might be very brief, some things are regarded as
insufficiently substantial to be treated as works. Thus a string of just a few words, or the
title of a work, or a name, would not normally be regarded as a work qualifying for
copyright protection (though an attempt to mislead the purchaser of a work may attract
other legal remedies).

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CASES Francis Day and Hunter Ltd v Twentieth Century Fox Corpn Ltd [1940] A.C.
112
Exxon Corp. v Exxon Insurance Consultants (1982) R.P.C. 69 (C.A.)

1.2.2 Types of work protected by copyright:

Literary and artistic works in general: The Berne Convention term literary and
artistic works is defined very inclusively in Article 2.

The laws of some countries provide similar inclusive or open-ended definitions,

but those of others, including India, provide exhaustive definitions: thus in our
Copyright Act the statute states exactly which kinds of work are protected and, if
a new kind of work comes into existence, the legislature may have to amend the
statute to cover it.

It is not unusual for several different copyrights, whether pertaining to different

authors or the same one, to subsist in the same composite work. Two obvious
examples are illustrated books (which contain both literary and artistic works) and
songs (which comprise both literary and a musical works.)
There are also many cases where a separate copyright subsists in the composite work
itself: the case of anthologies and compilations will be referred to below; and
consider the case of the photograph of an engraving of a painting! A
cinematographic work is another obvious, and more common, example.
Article 2(3) of the Berne Convention specifically confers a separate copyright on
derivative works, described as translations, adaptations, arrangements of music and
other alterations of a literary or artistic work.
The precise list of copyrightable works varies in different countries.
Thus the laws of some countries treat sound recordings as works protected by
copyright, over and above any copyright in the recorded work, but in other
countries these are protected by means of a neigbouring right.

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 Again in some countries, either by means of judicial decisions or by new
legislation, computer programs came to be protected as literary works much
before this became the international norm.

Digital technology and new kinds of work: With the advent of digital technology
some new types of work came into being and questions arose about how, and to what
extent, they should be protected:

Computer programs have some of the characteristics of a literary work but are not
written to be read directly by another person; rather a computer program is a set of
instructions for a machine.

The question of a new, sui generis form of protection was seriously considered in
the 1970s, but copyright protection became the norm. The TRIPS Agreement
requires that Computer program, whether in source or in object code, shall be
protected as literary works under the Berne Convention.

Databases and Multimedia works: see below.

Works protected under the Copyright Act, 1957: Section 13 of the Act specifies the
classes of works in which copyright subsists. These are

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and
(c) sound recordings.

Literary works include computer programs, tables and compilations including

computer databases (section 2(o)).

The basic form of literary work is something textuala piece of prose or verse, but
this inclusive definition extends it to certain other things.

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 The question what makes a computer program original is sometimes a difficult and
complex one. See (CASES below).
Copyright protection to tables, compilations and computer databases does not extend
to any data itself, but only to the way in which it is organised. This fundamental
copyright principle is expressed in Article 10.2 of the TRIPS Agreement:

Compilations of data or other material, whether in machine readable or other form,

which by reason of the selection or arrangement of their contents constitute
intellectual creations shall be protected as such. Such protection, which shall not
extend to the data or material itself, shall be without prejudice to any copyright
subsisting in the data or material itself.

Some countries (notably those of the European Union) do provide for a further
protection, beyond the scope of copyright, for the data collected in a database, but
there is no international consensus on the subject, and no international obligation in
this regard.
A compilation is not necessarily a compilation of other literary works. A
multimedia work is a compilation that may incorporate literary, dramatic, musical
and artistic works, films and sound recordings; but the multimedia work as a whole is
protected as a compilation, i.e. as a literary work.

CASES regarding computer programs:

Whelan Associates Inc. v Jaslow Dental Laboratory Inc [1987] FSR 1

Computer Associates, Inc. v Altai, Inc. [1992] 23 USPQ 2d. 1241.

Dramatic work is given an inclusive definition by section 2(h), under which it

includes any piece of recitation, choreographic work or entertainment in dumb show, the
scenic arrangement or acting form of which is fixed in writing or otherwise but does not
include a cinematograph film.

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 A dramatic work typically involves not merely dialogue but a series of incidents and
situations; the definition extends to the whole composition of arrangements for
presentation on the stage, both visual and aural.
This is an inclusive, not an exhaustive, definition: it does not exclude the script of a
play or the screenplay used for a cinematograph film, but such works being textual in
character are in any case concurrently protected as literary works.
In this case, the law specifically requires fixation of the work; a dramatic work would
conventionally be fixed in material form by a combination of text and drawings or
other graphic images, but an audio-visual recording would also amount to fixation.

Musical work is defined in section 2(p); it means a work consisting of music and
includes any graphical notation of such work but does not include any words or any
action intended to be sung, spoken or performed with the music.

This simple definition requires no further comment here, except to say that it was
introduced by the amending Act of 1993 to replace an earlier definition which
extended protection only to the notation in which (mainly Western) music is
recorded, which did not suit the needs of Indian music.

Artistic work. The definition in section 2(c) is exhaustive, not inclusive, and lists three
kinds of artistic works:

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an

engraving or a photograph, whether or not any such work possesses artistic quality
It is not difficult to identify something as a painting, sculpture, drawing,
engraving or photograph. The important point about them is that artistic quality is
immaterial. The Act does not say this about the other kinds of artistic work discussed
below.
Section 2(za) clarifies that a work of sculpture includes casts and models.

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(ii) a work of architecture. This term is further defined exhaustively in section 2(b) as
any building or structure having an artistic character or design, or any model for any
such building or structure.
Thus, every building or structure is not protected by copyright. There has to be
some original element in its design which may be described as having artistic
character. This might be in the form of the building, the way its spaces are arranged,
and/or in its ornamentation. But we must remember that (i) the standard of
originality remains a low one and (ii) artistic character does not mean artistic merit:
an architectural work that most people think is ugly might still be protected by
copyright.
Section 13(5) further clarifies the nature of a work of architecture by laying
down that copyright shall subsist only in the artistic character and design and shall
not extend to processes and methods of construction.

(iii) any other work of artistic craftsmanship. This means something that is not a
painting, a sculpture, a drawing, an engraving, a photograph or an architectural work,
but which nevertheless displays some artistic craftsmanship. Works of artistic
craftsmanship may include such everyday useful objects as furniture, pottery, cutlery,
jewellery, etc.
Here the possession of some artistic quality or character is vitally important to
distinguish a copyrighted work from objects not protected by copyright. This
does not mean it must have artistic merit, but that its design involves some artistic
feature or characteristic that does not arise purely from the use for which the
object is intended.
However the law of copyright is not intended to protect mass-produced useful
objects, even if they possess original artistic character. The artistic design
features of a useful object are normally capable of registration under the Designs
Act. Under section 15 of the Copyright Act, copyright protection ceases if the
copyright owner makes or authorises the making of more than 50 copies of such a
design by an industrial process; the protection available in such a case would be
that provided by the Designs Act.

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1.2.3 Authorship:

Authorship and the two approaches to copyright: The Berne Convention nowhere
defines or identifies the author who is intended to be its principal beneficiary.

This is so by design, not omission, for agreement on the subject cannot be reached.
This is the most fundamental point of divergence between two approaches to
copyrightcommon law and civil lawthat have existed from the beginnings of
copyright. The common law countries are those which have inherited from English
law the body of case-law that is known as the common law; this includes as a
general rule all those countries that were ever under British rule, starting with the
United States. India is, obviously, one of the common law countries.

It is important to always bear in mind that what we are speaking of are two different
trends or tendencies of thought, not two explicitly formulated contradictory doctrines.
Simplifying, even to the point of caricature, we might characterise these two
approaches as follows:

Civil law approach: Authors have an inherent, natural right over their works, which
are but emanations of their unique human personalities; this is the primary justification of
copyright which must not be diluted by concern for secondary interests (like those of
publishers or other entrepreneurs) howsoever important.

Common law approach: Copyright is a right conferred by the State in order to

financially reward the people (individual authors being of course the most important)
who give us works of different kinds; it provides an incentive and a reward for their
creativity and hard work, including the entrepreneurial contribution of publishers,
producers and the like. Such a benefit should ideally be conferred to the extent, neither
more nor less, that appears optimal, keeping in view the interests of all those involved in
making works available to the public.

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 The civil law notion of authorship makes it difficult to allow a company or other
juridical person, or someone like a film producer or producer of phonograms, to
claim to be an author. This is not a problem for the common law countries.
Thus the civil law countries do not treat sound recordings (or phonograms) as
works both because (a) the author would have to be a producer, usually a company,
and (b) because the recording of sounds for a phonogram, though it may require great
professional skill, seems to lack the necessary element of personal creativity. They
do protect phonograms, but they call it a matter of neighbouring rights rather than
of copyright.
The common law countries have no such difficulty in treating the producer of a
sound recording as an author and in treating sound recordings as works or as
subject matter for copyright.
There is no dispute that a cinematograph film is a work deserving of copyright
protection. But who is its author?
o Article 14(2) of the Berne Convention leaves the question to national law, but
requires that if sundry contributors are granted part authorship they should not be
in a position to prevent exploitation of the film (by the producer).
o In common law countries (like India) we treat the producer (individual or
company) who brings the film into existence as its author.
o Civil law countries are unwilling to treat the producer of a film as its author but
have created various legal fictions to safeguard the producers interests.

Authorship under the Copyright Act, 1957: Section 2(d) of the Copyright Act defines
what the term author means in relation to different kinds of work:

In relation to a literary or dramatic work, the Act does not give any special definition,
nor is one necessary.
The author of a musical work is the composer. Section 2(ffa) defines the composer
as the person who composes the music regardless of whether he records it in any
form of graphical notation.

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 The author of an artistic work other than a photograph is the artist. This refers to
the person who paints a painting, who sculpts a sculpture, who draws a drawing or
who engraves an engraving.
The author of a photograph is the person who takes the photograph.
The author of a cinematograph film or sound recording is the producer. A producer
in this context is defined in section 2(uu) as the person who takes the initiative and
responsibility for making the work. As we have seen, the producer of a film or
sound recording under our law may be either a natural or a legal person.
The author of a literary, dramatic, musical or artistic work that is computer generated
is the person who causes the work to be created.
In all cases, a person has to create an original work, in the copyright sense that we
have discussed, in order to enjoy the rights of an author in it.

Authorship and the ownership of copyright: The essential purpose of copyright is,
subject to the interests of the public, to protect the interests of authors in relation to their
works. Normally, the author is the first owner of copyright, and he may exploit the work
by assigning it, or by licensing the use of it, to others. However, in certain
circumstances, the law may provide for some other person (natural or juridical) to be the
first owner of copyright. In India, section 17 of the copyright provides for the following
cases where (in the absence of any agreement to the contrary) the first owner of copyright
is someone other than the author:

If an author creates a literary, dramatic or artistic work in the course of employment

in a newspaper, magazine or similar periodical, which is for the purpose of
publication in the periodical, then the proprietor is the first owner of copyright for the
purpose of such publication, though not for other possible uses of the work.
In the case of certain commissioned worksviz. a photograph, painting or portrait, or
engraving or cinematograph film made for valuable consideration at the instance of
another personthe first owner of copyright is the person commissioning the work,
not the author.

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 In all other cases where the author creates the work in the course of employment, i.e.
where he creates it while performing the job for which his employer has hired him,
the employer is the first owner: in other words, the limitation on the employers
ownership in the first case of above would not apply where the employer is not a
newspaper or periodical.
The person who delivers a speech, or where the speech is read out by someone else
then the person on whose behalf it is delivered, is the first owner of copyright, no
matter who actually drafted the speech.
In the case of works published by or under the direction or control of the
Government, or a Government undertaking, Government company or statutory body,
or an international organisation notified by the Government (under section 41) the
Government or corresponding employer is the first owner of copyright.
In all the above cases, it should be borne in mind that what has been said is subject to
any contractual agreement to the contrary: thus it is possible for an author to protect
his rights, subject to what the other party will agree to, by negotiating an agreement
under which he retains copyright.

1.2.4 The public domain

We have, all this while, been considering works protected by copyright. It is worth
reminding ourselves how much of the intellectual and cultural wealth of humankind lies
in works which are not so protected. This is called the public domain.

Much of it was created before there ever was such a thing as copyright and much has
fallen into the public domain after the term of copyright expired.
Much of it is folklore without an identifiable author.
It is usually considered both natural and desirable that works in the public domain
should be freely available not only for reproduction but for adaptation and other
forms of exploitation for the creation of new works which, if they meet the test of
originality, will enjoy copyright. [Eastern Book Company v. D. B. Modak, (2008) 1
SCC 1]

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 Once a work falls into the public domain, and has been exposed to such use as well as
direct exploitation, it is not considered appropriate to bring it back within the sphere
of copyright protection: thus Article 18 of the Berne Convention provides that when a
country accedes to the Berne Convention the Convention shall apply only to those
works which have not yet fallen into the public domain.
We shall be discussing the term of copyright in Part 1.4 .

1.3 RIGHTS

We have been considering the subject matter of copyright. It is now time to consider its
real substance, which is the exclusive rights it enables an author to enjoy in respect of his
work. Section 14 of the Copyright Act, 1957, which lists out the rights conferred by the
said Act, is entitled The meaning of copyright.

These exclusive rights are negative in character, in that the authors exclusive rights
enable him to prevent others from exercising them without his consent: his own right to
circulate or exhibit his work must remain subject to national law or regulation. (Berne
Convention, Article 17) Thus if the Government of the authors own or another country
bans the circulation of a book, this will not be regarded as infringement of the authors
copyright.

The authors exclusive rights are, further, grouped under two major heads, economic
rights and moral rights. The term copyright as used in the Copyright Act, 1957 and
defined in section 14 is limited to the economic rights; moral rights are provided for
separately in section 57 as the authors special right. Section 14 of our Act covers all
the economic rights provided for in the Berne Convention and the TRIPS Agreement
except for droit de suite, which is an optional right but which is provided for in section
53A of our Act as the resale share right. (We are of course speaking here of copyright
and not of the neighbouring rights covered by the TRIPS Agreement, which will be
discussed separately.)

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Economic rights

Economic rights referred to in the Berne Convention: It will be convenient to first

consider the more traditional economic rights, and then go on to those which are in
process of being introduced in consequence of more recent developments, notably
advances in digital technology. The former are, in general, those found in the Berne
Convention.

The right of reproduction: This is the most basic of the authors rights. Article 9
gives authors an exclusive right to authorise the reproduction of their works in any
manner or form and also specifies that a sound or visual recording of a work is
reproduction. Reproduction may be direct (i.e. of a work) or indirect (of a
reproduction of the work).
The rights of adaptation and translation, and the cinematograph right: We have seen
that the author of a derivative work enjoys a separate copyright in it. However,
before creating such a derivative work from an existing work, he requires permission
from the author of the existing work: the latter enjoys an exclusive right of
adaptation (Article 12) or, in the case of a translation, an exclusive right of
translation (Article 8) which Article 11(2) also specifically extends to the public
performance of a translation. The right to make a cinematograph film out of a pre-
existing work by adapting or reproducing it (Article 14) is of a similar character.
The right of distribution: The Berne Convention in fact makes specific reference to a
distribution right only incidentally in respect of cinematographic works; some
national laws use the term in a wider, more open-ended way while others may not
specifically use it all. However it is normaland necessaryfor an author to enjoy
an exclusive right over the initial distribution of copies of his work; this flows
logically from the right of reproduction. After the first sale of a particular copy this
right is normally said to have been exhausted: the purchaser is free to resell or
otherwise dispose of the copy he has bought. (Recent exceptions to this doctrine of
exhaustion are the rental right and the public lending right which are discussed later
below.)

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 The right of public performance. The exclusive right to authorise the public
perfomance of a work (Article 11), including a translation of it, is of very basic
importance to the authors of those worksdramatic, dramatico-musical or musical
which are created primarily for such performance. It is also very relevant to literary
works (though in their case the Berne Convention calls it a right of public recitation)
and (Article 14) cinematographic works.
o The question as to what constitutes a public performance is very important, as
there is no restriction on private performances. This has been left to national law,
but it is generally understood that by a private performance we mean one before
an essentially domestic circle of family and social acquaintances. The mere fact
that the public does not have free access to the venue of the performance is not
sufficient to characterise it as a private performanceconsider, for example, the
case of a hotel, or a hostel or hospital, making a performance available through
video to its guests or inmates in a lounge, or even in the privacy of their rooms: it
would not be usual, nor would it be reasonable, to treat this as a private
performance.
o Though it is not yet a requirement of any international convention, some countries
provide for a right of display of artistic works in public.

The broadcasting right: Article 11bis gives authors the exclusive right to authorise
the broadcasting of their works by radio or television, or their communication to the
public by wire. This right extends to rebroadcasting and communication of the
broadcast to the public by other means like loudspeakers: thus the fact that an author
has authorised a broadcast does not authorise, say, a shopkeeper or restaurant owner
to attract custom by making the broadcast available by such means. The
broadcasting right may, however, be subject to a compulsory license2.
Droit de suite: This right, provided for in Article 14ter, is optional for member
countries. Where conferred, it gives the author of an artistic work an inalienable right
to an interest (as determined by national legislation) in any subsequent sale of the
original work. Thus a struggling young artist who sells his work cheap may hope to

2
Compulsory licenses are discussed later in this paper.

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 be rewarded by the appreciation in its value in later years. This right also extends to
the original manuscripts of writers and composers.

Changes in economic rights arising out of recent developments: We have seen how
several kinds of work came into being, or acquired new importance, with new
technologies. Advances facilitating the reproduction of works, as well as the advent of
digital technology, have also necessitated the improvement or elaboration of existing
ones.
o The right of reproduction has been elaborated in some national laws to make
it explicit that the storing of a work by electronic means amounts to
reproduction of it.
o Rental rights in respect of computer programmes and cinematographic works
are required by the TRIPS agreement. The introduction of rental rights
marked a departure from the old exhaustion doctrine; it has been necessitated
by the ease with which the works to which it applies can be copied and illegal
copies put to profitable use.

The right of communication to the public is discussed further below in our discussion
of section 14 of the Copyright Act, 1957.

Section 14 of the Copyright Act, 1957: As already stated, Section 14 provides for all the
economic rights covered by the Berne Convention except droit de suite and all the rights,
in the sphere of copyright as distinct from neighbouring rights, required by the TRIPS
Agreement. It also goes further than both international agreements in some respects.

The right of reproduction: In the case of a literary, dramatic or musical work, other
than a computer program, the copyright owner enjoys the exclusive right to
reproduce the work in any material form, including the storing of it in any medium by
electronic means.

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Moral rights

In countries of the civil law school, copyright has tended to be seen fundamentally as a
matter of the human rights and dignity of the individual authorthe French term for
copyright means literally authors right. An authors work is thought of as an extension
of his unique personality, therefore it is not enough to see that he is compensated for its
exploitation materially: his enduring spiritual link with the work of his creation also has
to be respected and safeguarded. Article 6b of the Berne Convention reflects this
approach; it is interesting that some major countries of the common law school still do
not provide for moral rights in their copyright laws, but meet their obligations under this
article by virtue of remedies available to authors under their general law relating to such
matters as contract, unfair competition and defamation.

The right of paternity: This is the right to claim authorship of the work; exercise of
this right involves the authors right to have his name appear at an appropriate place
on copies of the work (or not appear on them if he prefers anonymity or the use of a
pseudonym) and a right to prevent others from claiming authorship of his work. His
authorship must also (under Article 10(3)) be acknowledged in the case of quotations
from, or other free use of, his work.
The right of integrity: This is the authors right to object to any distortion,
mutilation or other modification of, or other derogatory action in relation to his work
which would be prejudicial to his honour or reputation. This does not give the
author a free hand to object to any alteration, adaptation or editing of his work but
only to those which are considered (by the author and then the court) to be derogatory
to the work and prejudicial to his honour and reputation. It is not always a simple
matter of preventing mere malicious acts, rather works may be altered merely in an
effort to ensure their continued marketability. We may also note that the integrity
right has grown in importance with the greater potential for manipulation of a work
by digital means: as we shall see, a moral right for performers has been justified
largely on this ground.

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 Moral rights independent of economic rights: Moral rights being necessarily of a
character personal to the author, he retains them even if he has transferred his
economic rights. He must certainly retain them during his lifetime; countries which
do not provide for a longer term at the time of accession to the Convention are
exempt from the normal requirement that moral rights shall be maintained at least
until the expiry of economic rights. (This exemption was necessary because, as we
have seen, some countries provide for moral rights indirectly through their existing
laws; the remedies available under such lawsfor example of defamation may not
be available after the authors death.) It should be added here that moral rights are
regarded as inalienable in some countries, though not necessarily so in others.
Other moral rights: The two rights incorporated in Article 6bis are by no means the
only possible moral rights. One which was originally proposed, but which it was not
found practicable to include in the Berne Convention was a right of divulgation i.e. an
authors right to decide when and how his work should be made public. Further,
under some national laws, an author has a right to withdraw a work even after it has
been published.

Section 57, Copyright Act: Section 57 of the Copyright Act, 1957 provides for the two
forms of moral right mandated by the Berne Convention in substantially the same terms
as the Convention. Under our Act, these rights are termed the authors special right, the
term copyright being reserved for economic rights. We may note the following
additional points about this provision:
The right of integrity may be exercised only before the expiration of the term of
copyright, but there is no such restriction on exercise of the right of paternity.
Failure to display a work, or to display it to the authors satisfaction, is not an
infringement of the authors special right (Explanation to section 57). The most
obvious application of this is to artistic works: a painter or sculptor, for example,
would not be able to complain that his work had not been displayed, or displayed
with sufficient prominence, by the owner of the original or any copy of it.
The adaptation of a computer program to utilise it for the purpose for which it was
supplied (interoperability) or for purposes of backup would not infringe the authors

27
 special right. This may seem too obvious to have needed inclusion in the Act, but has
clearly been inserted to prevent any possible obstruction of such legitimate
adaptations to computer programs.

1.4 DURATION

The term of copyright under the Berne Convention and under the TRIPS Agreement is
50 years post mortem auctoris (p.m.a.) i.e. after the authors death.

In fact this period is counted from the 1st of January following the authors death, so
that it always ends on the 31st of December and we are all spared the need to
remember so many birthdays.
In certain cases, like cinematograph films or where the authors identity is not
disclosed, this period may be counted from the year of publication.
There has been a tendency in some countries to extend this term, and in India also it
was extended to 60 years p.m.a. by the amending Act of 1992. The main arguments
for and against a longer period may be summarised as follows:

Arguments for a longer term of copyright:

1) The authors grandchildren at least should benefit, in the context of longer life
expectancy.
2) The author himself will benefit if he chooses to assign his work: with a right
assured of longer duration he has more to sell.

Arguments against further extension of the term of copyright:

1) In reality, a longer term will not benefit authors, or motivate them; very few
works are still of any commercial value so long after an authors death, and it is
impossible to forecast which will survive; hence a very long term of copyright
will only give future rightholders, probably publishers, a windfall.

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 2) It is not in the interests of the public at large for works to be kept out of the public
domain for longer than necessary.

It may also be argued, between the two positions, that what is really desirable is
consistency between the laws of different countries, whatever the term of copyright.

The term of copyright under the Copyright Act, 1957:

Chapter V (sections 22-29) of the Copyright Act, 1957 deal with the term of copyright.
Needless to say, the term of copyright begins the moment a copyrighted work is created;
these provisions lay down the rules for determining when copyright in a work ends and it
falls into the public domain.

Literary, dramatic, musical and artistic works (except photographs):

The term is generally sixty years from the beginning of the calendar year next
following the year in which the author dies: thus if an author dies on 2nd January
2010, the term of copyright will continue for sixty years from 1st January 2011, i.e.
until 31st December 2061.
If there are two or more authors, i.e. it is a case of joint authorship, the above term
will be determined by the date of death of the author who dies last.

If the work is published pseudonymously or anonymously, the period of sixty years

will be counted from the beginning of the calendar year next following the year of
publication.
But if the identity of the author of such a (pseudonymous or anonymous) work is
disclosed before the work falls into the public domain, the term will be the usual
one for known authors.
If such a (pseudonymous or anonymous) work is a work of joint authorship, and
the name of one or more of such authors is disclosed before the work falls into the
public domain, then copyright continues for sixty years from the beginning of the

29
 year following the death of the last author whose name has been disclosed. (This
is what sub-section (2) and (3) of section 23 say, in a more complicated way.)
The explanation to section 23 lays down two circumstances under which the
identity of the author of a work published anonymously or pseudonymously is
deemed to have been disclosed: (1) if it is disclosed publicly by both the author
and the publisher or (2) if the identity of the author is established to the
satisfaction of the Copyright Board by that author. For either of these
circumstances to exist, it is necessary for the author to make the claim, which of
course he can only do while he is still alive. It would, thus, appear to be the
intention of the statute that the benefit of extension of the term to sixty years
p.m.a. rather than from the date of publication should be available only if the
anonymous or pseudonymous author of the workor at least one such author in
the case of a work of joint authorshiphimself participates in the disclosure of
his identity. It is reasonable that this should be so, since it would be inconsistent
with an authors own decision, to conceal his identity, to base the term of
copyright on such identity rather than on the date of publication.

Limitations on exclusive rights

The traditional exceptions: Copyright confers a wide range of rights on authors. It is

necessary, therefore, to allow for exceptions, special cases where these rights do not
apply: normal life would be difficult without such exceptions. As when we discussed
protected works and exclusive rights, it will be convenient to use the provisions of the
Berne Convention as a basis for discussion.

News & quotations: These are the two exceptions, which the Convention provides
for directly rather than leaving the matter to national law. Article 2(8) excludes
news of the day and miscellaneous facts having the character of mere items of
press information.
o Facts are not a subject matter of copyright anyway; the intention here is that a
news report must do something more than simply telling the facts for it to qualify

30
 as a work; whether it shows sufficient intellectual contribution for the purpose
must remain a question for the courts to consider in a particular case.
o Article 10(1) permits the reproduction of extracts (not necessarily verbal) from a
work already lawfully available to the public if (a) they are compatible with fair
practice and (b) they are not longer or larger than necessary. An author can fairly
use extracts from the work of others to bring home or illustrate a point, not as a
substitute for his own labour or want of ingenuity.
Exceptions left to national legislation: Article 9(2) leaves it to national legislation to
allow the reproduction of protected works in certain special cases subject to two
further conditions, (a) that it does not conflict with a normal exploitation of the work
and (b) that it does not unreasonably prejudice the legitimate interests of the author.
o The most obvious example that will spring to mind is the reproduction of a work,
or part of a work, for ones own private reference or use.
o Normal exploitation means the ways in which the author is normally able to use
his copyright: a novel is exploited by allowing the publication and sale of copies
of it, or permitting a film to be made of it; a cinematograph work in turn is
normally exploited by showing it in theatres, selling video rights and allowing it
to be broadcast and transmitted by cable, etc.
o The term unreasonable prejudice implies that some prejudice is inevitable, and
therefore that it should be minimized, e.g. by restricting the number of copies that
may be reproduced, etc. The national legislature is obliged by the Convention to
consider these factors while enacting legislation on the subject.
Besides this general provision, the Convention also leaves certain kinds of limitation
on exclusive rights specifically to national legislation, viz. the reproduction of official
texts (like laws and other official documents like legislative and court proceedings
etc.); political speeches and speeches delivered in the course of legal proceedings;
public lectures, addresses and other works of the same nature; articles on current
economic, political or religious topics which have already been published in
newspapers or broadcast; the reproduction of works seen or heard during an event,
for the purpose of reporting the event; and the use of works by way of illustration for
purposes of teaching, if justified by the purpose and compatible with fair practice.

31
 Fair dealing or fair use in the common law countries: Discussion of the subject
would be incomplete without reference to these termsthe former British and the
latter Americanwhich are commonly used and widely understood in the common
law countries. They broadly cover the kinds of cases we have been discussing,
establishing principles of fair play through a considerable body of case law.

Limitations on exclusive rights under the Copyright Act, 1957 (section 52):

Section 52, entitled Certain acts not to be infringement of copyright is the longest
section in the Copyright Act, far longer than section 14, which enumerates the exclusive
rights of copyright owners.
Sub-section (1) lists the non-infringing acts while sub-section (2) extends
the applicability of the exceptions listed in sub-section (1) to the same acts
if done in relation to a translation or adaptation, as may be the case, of a
literary, dramatic, musical or artistic work.

The length of section 52 does not mean that there are too many exceptions, but is
merely because, while the rights conferred are general in nature (like the right to
reproduce a work in material form), the exceptions have to be specific (like the right
to reproduce a work for personal use, or the use of a legislature or a court, etc) and,
therefore, have to be spelt out in full.
Fair dealing: The term fair dealing is used in clauses (a) and (b) of sub-section (1).
The American term fair use , which is often used in discussion of copyright law,
is interchangeable with fair dealing.
This is a general term, developed through case law, for cases where an author
uses another work, not to exploit the latter directly but to make an acceptable use
of it for the purposes of his own work; it would not be fair dealing to use so much
of the other work, or to use the other work in such a way, as to create a substitute
for it.

32
 Examples of such fair dealing include the use of quotations or extracts to illustrate
or corroborate a point being made in ones own work: but a line would have to be
drawn between this legitimate activity and the inclusion of extracts from
anothers work as a substitute for creating ones own expression.
Another long-established form of fair dealing is parody: this is a legitimate form
of criticism, a parody is very much an original work, yet by its very nature it must
make use of the work parodied.
Section 52 should be referred to in detail. The exceptions it lists include:
Fair dealing for private use including research, criticism or review, for reporting
current events, etc.
In the case of computer programs, for purposes of interoperability, reverse
engineering and back-up; and any copies made for personal, non-commercial use.
Reproduction for the use of courts and legislatures; the reproduction of public
notifications; the reproduction of Acts of legislatures with commentary.
Use in educational institutions or in the course of education, in the specific cases
spelt out in section 52.
Cover versions referred to in section 52(1)(j); this is discussed further below.
The playing of sound recordings as a common facility in non-commercial places
of residence or non-profit clubs etc.; amateur performances for non-paying
audiences; similar acts in the course of official functions.
The two-dimensional reproduction of architectural works and of other artistic
works if they are permanently situate in public places.
Various other uses of copyrighted works. The above list is purely descriptive
and, further, it should be noted that the precise scope of exemption would be
limited strictly to the actual language of the statute, which must be referred to.
Cover versions (section 52(1)(j)) are an example of a statutory licence: i.e. an
instance where the law itself confers a licence for the use of a copyrighted work in
certain circumstances, and subject to certain conditions,. As the provision has been
controversial in India, it merits some discussion here.
To understand the background, we may refer to Article 13(1) of the Berne
Convention, which reads as follows: Each country of the Union may impose for

33
itself reservations and conditions on the exclusive right granted to the author of a
musical work and to the author of any words, the recording of which together
with the musical work has already been authorised by the latter, to authorise the
sound recording of that musical work, together with such words if any; but all
such reservations and conditions shall apply only in the countries which have
imposed them and shall not, in any circumstances, be prejudicial to the rights of
those authors to obtain equitable remuneration which, in the absence of
agreement, shall be fixed by competent authority.
Under section 52(1)(j), if a sound recording of the work has been made with the
consent of the rights owner, then another person intending to make another sound
recording of it has only (subject to certain conditions that will be discussed
below) to give the rights owner notice of his intention, provide him with copies of
all covers and labels, and pay royalty as prescribed by the Copyright Board.
The rationale for this provision is that once a sound recording of a musical work
or of a songwhich is a musical work (the tune) combined with a literary work
(the lyric)has been published, others should be able to record other
performances of the same music or song and sell such recordings; they must pay a
royalty to the copyright owners but should not be prevented from making such
cover versions and it must be reasonably convenient for them to do so. This is
one of the ways in which copyright law seeks to balance the interests of rights
holders with those of the general public: popular songs are part of the common
popular culture and to that extent may be thought of as belonging in some sense
to the public, even though they may not have fallen into the public domain.
The same objective can be achieved without a statutory licence if there is an
effective copyright society from which licences for cover versions can be
obtained without undue difficulty. This is the case in many countries. However
in the United States as well as in India, the statutory licence for cover versions
continues.
In India the main criticism of the provision is that it is misused: the makers of the
cover version may (and in fact often do) grossly understate the number of copies
they intend to make, and thus fail to pay proper revenue. They also sometimes

34
mislead the public into buying their product under the impression that it is the
original version.
Some safeguards, to deal with this, are built into the statute: no misleading labels
or packaging; no cover version until two years after the first recording; the rights
owner is allowed to inspect the records and accounts of anyone making cover
versions; and recourse to the Copyright Board.

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