COPY RIGHT—Origin, Definition &Types of Copy Right, Registration procedure,

Assignment & licence, Terms of Copy Right, Infringement, Remedies, Copy rights with
special reference to software.

Copy Right
Copyright is a form of intellectual property protection provided by the laws of the United
States. Copyright protection is available for original works of authorship that are fixed in a
tangible form, whether published or unpublished. The categories of works that can be
protected by copyright laws include paintings, literary works, live performances,
photographs, movies, and software.

The dictionary defines copyright as "a person's exclusive right to reproduce, publish,
or sell his or her original work of authorship (as a literary, musical, dramatic, artistic,
or architectural work)."
It's important to understand that copyright law covers the "form of material
expression," not the actual concepts, ideas, techniques, or facts in a particular work.
This is the reason behind why a work must be fixed in a tangible form in order to
receive copyright protection. A couple examples of works being fixed in a tangible
form include stories written on paper and original paintings on canvas.

Copyright comprises a bundle of rights which exists in various types of works including: •
Literary works such as books, pamphlets, magazines • Dramatic works • Music • Artistic
works including photographs • Films • Artistic architectural works Copyright is the exclusive
right as defined by the Copyright Act, 1957

A Copyright Owner's Rights

The primary goal of copyright law is to protect the time, effort, and creativity of the
work's creator. As such, the Copyright Act gives the copyright owner certain
exclusive rights, including the right to:
▪ Reproduce the work
▪ Prepare "derivative works" (other works based on the original work)
▪ Distribute copies of the work by sale, lease, or other transfer of ownership
▪ Perform the work publicly
▪ Display the work publicly

Works Protected by Copyrights

A copyright gives certain exclusive rights to persons who create original works of
authorship, including literary, dramatic, musical, artistic and certain other intellectual
works. This protection is available to both published and unpublished works.
Copyrightable works include the following categories:
▪ literary works
▪ musical works, including any accompanying words
▪ dramatic works, including any accompanying music
▪ pantomimes and choreographic works
▪ pictorial, graphic and sculptural works
▪ motion pictures and other audiovisual works
▪ sound recordings
▪ architectural plans, drawings and actual buildings
These categories should be viewed broadly. For example, the code used to create
computer programs may be registered as a "literary work." Maps and architectural
plans may be registered as "pictorial, graphic and sculptural works." A dance could
be registered as both a choreographic work (if written down or otherwise recorded)
and as an audiovisual work (if filmed).

To be protected by copyright, the work must be more than an idea. It must be fixed in
a "tangible form of expression." This means the work must be written or otherwise
recorded. This is because a copyright does not protect an idea or plan: it protects
the expression of that idea or plan.
In addition, copyrightable work must be original. It must not be copied from someone
else and must contain a minimal level of creativity on the part of the author. Facts,
well-known phrases and lists of names or ingredients, in and of themselves, are not
copyrightable. However, if these items are organized or expressed in an original
manner, then a copyright would protect that organization or expression, although not
the actual facts or lists contained. In other words, copyright protection extends only
to an author's original, creative contribution to a work.

Ownership of Copy Right

Usually, the first owner of copyright in a work is its author. The ‘author’ is: • in relation
to literary or dramatic work, the author of the work • in relation to a musical work, the
composer • in relation to an artistic work other than a photograph, the artist • in
relation to a photograph, the photographer • in relation to a film, the owner of the film
at the time of its completion and • in relation to a record, the owner of the original
plate from which the record is made, at the time of the making of the plate. Since this
is the law, this general rule is obviously subject to a number of exceptions. For
example: • The person who commissions a photograph is usually the first owner of
the copyright in the photo if he has paid for it to be taken. • An employer is usually
the first owner of the copyright in works which his employees make in the course of
their employment under a contract of service or apprenticeship. • Subject to contract,
the Government is the first owner of the copyright in a government work.

Assignment & Licence of Copy Right

The copyright in any work can be assigned. This can be done: either wholly or
partially , either generally or subject to limitations , either for the whole term of the
copyright or any part of the term An assignment or licence must be

• in writing
• be signed by the assignor / licensor or by his duly authorised agent identify the
works assigned / licensed .
• specify the rights assigned / licensed
• specify the duration and territorial extent of the assignment/ licence
• Specify the amount of royalty payable, if any, to the author or his legal heirs An
assignment may be revised, extended or ended by the parties on terms they
agree to. If the assignee or licensee does not make use of the rights assigned or
licensed, as the case may be, within one year of the assignment or licence, the
agreement automatically lapses.

Copyright Infringement in India

Copyright laws provide certain exclusive rights to the copyright holder, such
as the right to reproduce, distribute, display or perform the protected work, or
to make derivative works. Use of such copyright protected work without the
permission of the copyright owner is copyright infringement. In this article, we
look at copyright infringement in India.

Common Types of Copyright Infringement

The following are some of the most common types of copyright infringement:

• Making copies of copyrighted works for sale or hire or letting them for hire.
• Permitting performance of copyright infringed works at any place for
performance of works.
• Distributing copyright infringing works.
• Public exhibition of copyright infringing works.
• Importing copyright infringing works into India.

If any of the activity is performed by a person or business, then they are liable
for prosecution under copyright laws in India.

Remedy for Copyright Infringement in India

Copyright owners can take legal action against any person or entity that
infringes on the copyright of a work. The copyright owner can file a civil
remedies case in a court having jurisdiction and is entitled to remedies by way
of injunctions, damages and accounts. Further, no court inferior to that of a
Metropolitan Magistrate or a Judicial Magistrate of the first class can try any
offence under the Copyright Act.
. Civil remedies for infringement of copyright. - (1) Where copyright in
any work has been infringed, the owner of the copyright shall, except as
otherwise provided by this Act, be entitled to all such remedies by way of
injunction, damages, accounts and otherwise as are or may be conferred by
law for the infringement of a right : Provided that if the defendant proves that
at the date of the infringement he was not aware and had no reasonable
ground for believing that copyright subsisted in the work, the plaintiff shall not
be entitled to any remedy other than an injunction in respect of the
infringement and a decree for the whole or part of the profits made by the
defendant by the sale of the infringing copies as the court may in the
circumstances deem reasonable. (2) Where, in the case of a literary, dramatic,
musical or artistic work, a name purporting to be that of the author or the
publisher, as the case may be, appears on copies of the work as published, or,
in the case of an artistic work, appeared on the work when it was made, the
person whose name so appears or appeared shall, in any proceeding in
respect of infringement of copyright in such work, be presumed, unless the
contrary is proved, to be the author or the publisher of the work, as the case
may be. (3) The costs of all parties in any proceedings in respect of the
infringement of copyright shall be in the discretion of the court.

Criminal Prosecution for Copyright Infringement

If any person knowingly infringes or abets the infringement of the copyright in
any work, then such an offence is a criminal offence under Copyright Act. In
case of criminal copyright infringement, the minimum punishment for
infringement of copyright is imprisonment for six months with the minimum
fine of Rs. 50,000/-. In the case of a second and subsequent conviction the
minimum punishment is imprisonment for one year and fine of Rs. 1,00,000/-.

Copyright Infringement a Cognizable Offence

Cognisable offence means a police officer has the authority to make an arrest
without a warrant and to start an investigation with or without the permission
of a court. Copyright infringement is a cognizable offence and any police
officer, not below the rank of a sub inspector, can seize without warrant, all
copies of the work and all plates used for the purpose of making infringing
copies of the work.
Burden of Proof is on prosecution.
Section. 65 to 70 of the Act deals with the offences, relating to infringement of
Copyright. The Copyright (Amendment ) Act, 1996 enhanced the punishment
and provides with imprisonment which may be extended for a minimum period
of 6 months to maximum of 3 yrs. And with fine which not be less than Rupees
50,000/-. The court has discretion to reduce the imprisonment and fine as well,
in special cases. For 2nd and subsequent convictions the minimum term of
imprisonment is enhanced to 1 yr. and minimum fine to Rupees 1 lac.
Computer Program
Any person who knowingly makes use on a computer of an infringing copy of a
computer program will be punishable with imprisonment for a term which will not be
less than 7 days, but which may extend to 3 yrs. And with fine which will not be less
than Rupees. 50,000/-, but which may extend to 2 lacs of Rupees.

Proceedings in matters of Infringement

The Act provides not only Civil but also Criminal remedies, in case of infringement of
Copyright, against the infringer. The two remedies are distinct and independent and
can be availed of simultaneously.

But in Cheran P. Joseph Vs. K. Prabhakarn Nair AIR 1967 Kar, 234. Held that, a
criminal court may not give a finding on the question of infringement if the same
issue is pending for the decision in a civil suit.

However, a criminal proceeding does not enable the owner to get an injunction i.e. if
a convict infringer repeats the infringement the owner will have to initiate a fresh
proceedings. So, in such cases it is advisable to initiate Criminal as well as Civil
proceeding simultaneously, if the stakes are very high.
In the matters of criminal proceedings the knowledge or mens rea is essential.

Breach of Copyright Vs Theft

If anyone stoles some copyrighted work to copy, then he is liable for infringement of
Copyright and not of theft.

Seizing Power
Police officer of the rank of sub- inspector and above has been given the power to
seize without warrant, if he satisfied that an infringement or an abetment of,
infringement of Copyright in any work has been or likely to be, committed, all
infringing copies or plates of the work, wherever found, to be produced before a
Magistrate [ Section 64(1) ], as soon as practicable. Even such copies found at the
place of retailer may also be seized. Private individuals who might be possessing
infringing copies for their private and domestic use, is not covered by the definition of
the infringement u/ Sec. 51. Further this provision applies only to infringement of
Copyright and not to broadcasting reproduction rights u/Sec. 37 and the performer's
right u/ Sec. 38.

Any person having an interest in any copies of the work or plates so seized may
within 15 days of such seizure, make an application to the Magistrate for the return
of such copies or the plates to him.

Disposal of Infringing Copies or Plates (Sec.66)

The court trying the offence may order that all the copies of the work which appears
to be infringing copies or plates, for the purpose of making infringing copies in
possession of alleged offender, be delivered up to the owner of the Copyright without
any further proceedings, whether the accused is convicted or not.

Jurisdiction (Sec. 70)

No court inferior to that of Presidency Magistrate or a Magistrate of First Class can
try an offence under the Act.
An offence can be tried in a court within whose territorial jurisdiction the offence is
committed. If the copies are circulated at many places, the offence is committed at
every place, where the copies are intended to reach and has in fact reached.

Who Can File Complaint?

Generally speaking anyone can file unless there is a specific provision to the
contrary under Sec. 4(2) & 190 of Cr.PC, a Magistrate will be competent to take
cognizance of any offence specified in Sec. 190 upon receiving a complaint of facts
which constitutes such offence irrespective of the qualifications or eligibilities of the
complainant to file a complaint unless contrary provision is made in any Statute.

Copyright Registration Procedure

The procedure for registration is as follows:

1. Application for registration is to be made on as prescribed in the first

schedule to the Rules;
2. Separate applications should be made for registration of each work;
3. Each application should be accompanied by the requisite fee prescribed
in the second schedule to the Rules ; and
4. The applications should be signed by the applicant or the advocate in
whose favour a Vakalatnama or Power of Attorney has been executed.
The Power of Attorney signed by the party and accepted by the
advocate should also be enclosed.

Time for Processing Application

After you file your application and receive diary number you have to wait for a
mandatory period of 30 days so that no objection is filed in the Copyright
office against your claim that particular work is created by you.

Scope and Extent of Copyright Registration

Both published and unpublished works can be registered. Copyright in works
published before 21st January, 1958, i.e., before the Copyright Act, 1957 came
in force, can also be registered, provided the works still enjoy copyright. Three
copies of published work may be sent along with the application.

If the work to be registered is unpublished, a copy of the manuscript has to be

sent along with the application for affixing the stamp of the Copyright Office in
proof of the work having been registered. In case two copies of the manuscript
are sent, one copy of the same duly stamped will be returned, while the other
will be retained, as far as possible, in the Copyright Office for record and will
be kept confidential. It would also be open to the applicant to send only
extracts from the unpublished work instead of the whole manuscript and ask
for the return of the extracts after being stamped with the seal of the Copyright
Office. When a work has been registered as unpublished and subsequently it
is published, the applicant may apply for changes in particulars entered in the
Register of Copyright in Form V with prescribed fee.

All kinds of literary and artistic works can be copyrighted, you can also file a
copyright application for your website or other computer program. Computer
Software or programme can be registered as a ‘literary work’. As per Section 2
(o) of the Copyright Act, 1957 “literary work” includes computer programmes,
tables and compilations, including computer databases. ‘Source Code’ has
also to be supplied along with the application for registration of copyright for
software products. Copyright protection prevents undue proliferation of
private products or works, and ensures the individual owner retains significant
rights over his creation.

Computer Program- A Literary Work

Section 2 (o) defines 'literary work' and includes computer programs, tables and
compilations including computer databases. Section 13 provides the categories of
work in which the copyright subsists which includes original literary work. The author
of a work is the first owner of copyright in the work. However in case of employer-
employee if a work is made in course of employment under a contract of service or
apprenticeship, the employer shall be the first owner of the copyright in the above of
any contract to the contrary4. These provisions of the copyright law are applicable
mutatis mutandis to computer software/ programmes as well.

Software Contracts
Software contracts, like many other transactions, are governed by the common law
principal as embodied in the Indian Contract Act5. Contract can be in the nature of
sale or assignment/ license. If the computer software is considered as a 'good', the
Sale of Goods Act, 1930 will have relevance in the formation and execution of the
sale contract. Section 2(7) of the Sale of Goods Act, 1930 defines 'good' as 'every
kind of movable property other than actionable claims and money, and includes
stock and shares, growing, crops grass...' This definition of goods includes all types
of movable properties, whether tangible or intangible.

In Tata Consultancy Services v. State of Andhra Pradesh6, the Supreme Court

considered computer software is intellectual property, whether it is conveyed in
diskettes, floppy, magnetic tapes or CD ROMs, whether canned (Shrink-wrapped) or
uncanned (customized), whether it comes as part of computer or independently ,
whether it is branded or unbranded, tangible or intangible; is a commodity capable of
being transmitted, transferred, delivered, stored , processed , etc. and therefore as a
'good' liable to sale tax. The court stated that, 'it would become goods provided it has
the attributes thereof having regards to (a) its ability; (b) capable of being bought and
sold; and (c) capable of being transmitted, transferred, delivered, stored and
possessed. If a software whether customized or noncustomized satisfies these
attributes, the same would be goods.'

Infringement of Copy right and Legal Remedies for the Computer software

Section 51 defines infringement of copyright and states that a person infringes

copyright of another if he unauthorizedly commits any act which only the copyright
folder has exclusive rights to do. Civil remedies to copyright infringement s are
provided in chapter XII of Copyright Act, 1957 granting injunction and damages for
copyright infringement and criminal liability provisions are provided in chapter XII of
Copyright Act, 1957 wherein abetment of infringement is also unlawful and
punishable with imprisonment of upto three years and a fine up to Rs. 2 Lacs7. A
person who knowingly uses the infringing copies of Computer software commits a
criminal offence punishable with imprisonment for not for not less than seven days
extendable up to three years and a fine not less than Rs. 50,000/- which may extend
to Rs. 2 Lacs.

Section 62 of the Copyright Act, 1957 entitles a Plaintiff to file for a suit for injunction
against infringements within District Court of the jurisdiction where Plaintiff resides or
carries on business or works for gain. Infact, of late Indian Courts have accepted
petitions against unknown Defendants or persons identifiable through their IP
Addresses in internet law related litigation. Popularly known as John Doe order in the
US Courts, India had adopted the principal of accepting petitions against unknown
persons in defamation cases or Intellectual property infringements including cases
relating to software piracy. This is a positive legal enforcement strategy adopted by
Indian Courts to resolve internet related litigation where defendants cannot be
identified at stage of filing of the position.

Copyright Board
The Copyright Board, a quasi-judicial body, was constituted in September
1958. The jurisdiction of the Copyright Board extends to the whole of India.

The copyright board is a body constituted by the central govt. to discharge

certain judicial function under the Act. [1]

The Board is entrusted with the task of

1 .adjudication of disputes pertaining to copyright registration,

2. assignment of copyright, grant of Licenses in respect of works withheld

from public, unpublished Indian works, production and publication of
translations and works for certain specified purposes.

3.It also hears cases in other miscellaneous matters instituted before it under
the Copyright Act, 1957
COMPOSITION
It consists of a chairman and not more than fourteen other members.

[2] The Chairman and the members shall hold their office for five years. They
may be reappointed on the expiry of the tenure.

[3] The chairman of the copyright board must be a person who is or has been
judge of a High Court or is qualified for appointment as a judge of a High
Court.

[4] There is no qualification mentioned about the members of the Board.

The Registrar of Copyright also plays a very important role. The Registrar of
the copyright board will perform all secretarial functions of the copyright
board.

[5] The Registrar of the Copyright is the authority under Section 9 of the Act
who is the officer of the Copyright Office. The Registrar of Copyright has
powers of the civil court. [6] And every order made by the registrar of payment
of money is deemed as a decree of a civil court and is executed as decree of
such court. [7]

Powers of Copyright Board

The Registrar of Copyright and the Copyright Board have the powers of a civil
court in respect of the following matters: [9]

(a) Summoning & enforcing the attendance of any person and examining him
on oath (this jurisdiction extends to the whole of India); [10]

(b) Requiring the discovery and production of any document;

(c) Receiving evidence on affidavit;

(d) Issuing commission for the examination of witnesses and document;

(e) Requisitioning any public record or copy thereof from any court or office;

(f) Any other matter which may be prescribed.

Functions of Copyright Board

The first and foremost function of the copyright board is to look after whether
the provisions of the Act are followed without any violation or infringement
and to adjudicate certain cases pertaining to copyrights.

Other than this, the copyright board has been provided direct jurisdiction in
relation to matters:
(1) To decide the issue of publication and its date in order to determine the
term of copyright.

(2) To decide the term of copyright which shorter in any other country than
that provided in respect of that work under the Act? (The decision of the
Copyright board on the above question will be final)

(3) To settle disputes related to assignment of copyright.

(4) To grant compulsory licenses for Indian work .

(5) To grant compulsory licenses to publish the unpublished work .

(6) To grant compulsory licenses to produce and publish translation of

literary and dramatic works.

(7) To grant compulsory licenses to reproduce and publish certain categories

of literary, scientific or artistic works for certain purposes.

(8) To rectify the Register of copyrights on the application of registrar of

copyrights or any aggrieved persons .