 Copyright is an incentive to author which protects his intellectual right over an

intangible property. Sale of Goods is about a right over a movable property.

 IPR as Human Right in Article 27 of UDHR

 IPR is a private right and the onus is on the author to enforce it. He can not do it
if he does not want to.

 Need to balance public interest

 National IPR Policy focuses on raising general awareness and to strengthen

enforcement mechanisms.

Technological Challenges

 Once printing started, ideas started to spread more easily.

 But who should print, was decided by the royalty. They wanted to control what
was to be spread among people.

 These licensed people were called ‘stationers’.

 Stationers can be seen as the predecessors of Publisher’s Guild

 Statute of Anne 1710, first copyright law

 For the encouragement of learning.

 Dissemination of information is important. It can be achieved through private

negotiations and contractual arrangements. Or else, state can intervene and give
compulsory licensing.

 This is the reason why IP Rights have limitation. For eg, after few years, IP
Rights end and we can have free dissemination.

 Role of Police : In search & seizure of works violative of IP rights

Influence of Statute of Anne in current copyright law

 The 1710 law itself recognizes the importance of consent of the author.

 Sole right of the author recognized. Sole right has evolved to be called exclusive
right.
 Exclusive right is a negative right. It does not allow the author to do anything.
But it prohibits a normal person to access the information.

 Right to information, on the other hand, is a positive right and allows the normal
citizen to access information.

 Right in rem. Statutory Right as it stands today.

 Natural Right which comes into existence the moment the work is created.

 Once you click a picture, your copyright starts.

 The registration does not create the right. It only serves as an evidence for
your right which is born the moment the work is created.

 Different in US. Registration is mandatory there. Meaning that the right is

born only when the registration happens.

 The agreement conferring the right to reproduce has to be in writing and signed
by two witnesses. Such a requirement of writing and signature is still mirrored in
today’s law.

Textbooks for Copyright

 Indian Context - Narayan, and Lal

 For research - Nimmer (Bible of copyright law)

 Goldstein for deep research

 Bentley and Salmon for UK IP Law

 Even Statute of Anne had a price control mechanism. People had the right to
make a complaint if the work is being sold at a higher price.

 Why is there a price regulation even when fair use exists?

 Statute also mandates that copies should be sent to the specified libraries in the
statute. Such a provision does not exist in India. Or else, we could have had
libraries that had all the books published in India after a certain cut off time.
(Page 115)
 The statute did not prohibit the dissemination of foreign language works
published abroad. (Page 116)

 TRIPS agreement reflects a similar provision

 Where Article 3 says that countries should treat nationals of other member
countries just like its own nationals.

 Where Article 4 says that countries should treat all member nations equally.

 Both can have exceptions - through bilateral treaties.

 Protection of books for 14 + 14 years. After 14 years, right to reproduce a work

reverts to the author from the publisher, if the author is living, for another 14
years

Types of Works

 Literary Work

 Artistic Work

 Dramatic Work

 Musical Work

 Sound Recording

 Cinematograph Films

 The kind of right, and duration of right will vary according to the type of work.
That is why identification of work is important

Philosophical Justification of Copyright

 Locke (Labour Theory): The product of your labour is yours. (Viva la revolution)

 Exception: Non-waste. Just because you have labour, don’t make more and
more and put them to waste.

 One has an obligation to keep resources left for the others. Don’t take it all
for yourself.
Features of Copyright

 Fixation: Copyright is the product of your intellectual labour. But when does it
start existing? Fixation means that it should be put on to a medium. A paper, a
word doc, a canvas.

 UK Law is clear on fixation

 Copyright, Design and Patent Act of 1988, section 3, provides that for
copyright to exist, the work has to be recorded in writing or otherwise.

 Walter v. Lane:

 Taking note of a speech through shorthand gave birth to a copyrighted

work.

 Speech by a Lord, recorded by the Times. When a person later compiled

all of the Lord’s works, he included the speech which was published in
the Times. The Times claimed copyright and sued

 HoL said that the Times had copyright. The work came into existence
when it got recorded.

 HoL said that the Times had originality over the work. The case led to a
debate on the requirement of originality in copyright, and the later
introduction of originality.

 When you think of an article, don’t share it with friends unless you have
recorded it in a medium.

 Berne Convention is THE international treaty on copyright law.

 Definitions of ‘literary work’

 Indian Law: Section 2(o) of Copyright Law: Includes computer programs, tables,
and computers including computer [databases].

 Does not define literary work. Just gives a list, which is not even exhaustive.

 UK Law is a bit more descriptive

  Any work other than a musical, or dramatic work, written, spoken, or sung. It
then gives an inclusive list containing of a table or compilation [other than
computer program], a computer program, preparatory design material for a
computer program, and a database.

 A written poem is literary, until it is being performed.

 US Law (Page 155 of module)

 Any work other than AV work, expressed in words, numbers, or other verbal,
or numerical symbols, or inidicia, regardless of the nature of the material
objects, such as books, periodicals (…) in which they are embodied.

 Where it is embodied does not matter, so long as it is fixed.

 None of the laws give a complete picture of anything

 Berne Convention, Article 2. More descriptive.

 Irrespective of mode of expression

 Some other things too. Go read

University of london press ltd. v. University Tutorial Press Limited.-precedent on

using literary work- Question papers- literary work- monopoly over it- publicly
available for the students- commercial position if they use then it is a problem- moral
standard/ principle/obligation- 10th commandment- “thou shall not steal”- it might be
your property- university tutorial should be used with university’s permission-
University commercially exploits or not- otherwise it will amount to stealing

For the purpose of a copyright law- we are not equating work of literature with
literary work- quality, style and literary finish not needed for copyright law-
quality/style/flavour not relevant- the market regulates the quality of the copyright
law-The intention with what the diary entry was created has nothing to do with the
personal diary being copyrighted- telephone directory- literary work

Comment: address whether it is a literary work or not- originality, etc.

 Menu card, telephone directory etc will be written work.

 Features of literary work - written/printed, fixed.

After looking at what all types of works are there, now we need to look at what all
works are protected under copyright law. Section 13 of Copyright Act

 Originality - Although an important aspect of copyright law, is not mentioned in

any statute.

 We need to look at case laws to understand it.

 University, London, is still a good case on this. (Page 389 of module)

 Originality need not mean originality of idea, but originality of expression.

 Example: Devdas novel is the idea. But all the movies are different
expressions of the same idea.

 It must originate from the author (the expression that is). Don’t copy

 The expression need not be novel, just not copied.

 From a common pool of knowledge available to the world, anyone can take
ideas and express it in their own ways. Or else, only people who make
historical discoveries will get copyright of works.

 ESPN can broadcast a match. But anyone who watches it can report the
match in their own expression.

 Only a person with locus standi can file a case of copyright. Third parties, who
are not producers of the work, cannot do so.

 The basic criteria here are common across India, US, and UK.

 Some have a stricter regime of registration and stuff, but the basic idea is
uniform.

Subject Matter of Copyright

 Somethings are excluded from copyright.

 Example, in USA, idea, process, procedure, system, method of operation,

concept, principle, or discovery, will not be protected.

 The idea of a superhero cannot be copyrighted. It can be expressed in

different forms, Superman, Shaktiman, Thor etc.

 Even copying a statute from another jurisdiction verbatim will be considered as

unoriginal.

 Hegel: Your work is an extension of your personality. And the author will have a
moral right to protect it. (Personality Theory)

Crown Copyright

 Copyright protection will contribute to the intellectual wealth of the country.

 Crown has a certain prerogative over published works. But in practice, they
usually waive it off for public interest.

 The State has copyright over its works. But the public interest mandates that the
public should have knowledge about this.

 That is why judgments do not have copyright. Copyright of judgments < Public
interest (of the people to know about the law)

 In India, section 52 says that certain acts will not be copyright infringement.
Exception of copyright.

 52 (1) (q) extends the exemption to Govt works. Gazette, reports, judgments,
statute etc comes here.

 Would this affect the right of the publishing industry?

 Although the statute will not be copyrighted, the publisher will have a right over
the formatting, the content page. Some publishers will even give comments for
 each statutes, case summaries etc. Industries can compete over these things, while
leaving the judgments and statutes to the public without any hurdles.

 A report may be the result of your research. But when the Parliament/Court
adopts it, it becomes part of the public domain and will not have copyright.

 Public Domain is different from accessible to public. Latter is when someone

publishes your work. When the author dies and after 60 years, the copyright will
end and then, it becomes part of public domain.

 Work has been dedicated to the public, purposely or inadvertently, and therefore
will be public property.

 Everyone is assumed to know the law. This maxim is based on the assumption
that law is available in public domain. If this assumption is proved wrong, the
maxim will not be of help. (R v. Bailey)

 Holder of a copyright can refuse to publish a copyrighted material, or allow

anyone else to do so. Upon the holder’s discretion.

 Absurdity of having copyright in legislation.

 What happens after 50 years?

 Can other countries sue one country for copying statutes?

Eastern Book Company v. DB Modak & Anr. (SC, 2007)

 Appellant claimed that they edit, make cross references, standardize the
formatting of text, add paragraph numbers on a raw copy of a judgement
procured from the registrar.

 Will they be the ‘author’ by this?

 They also add the head notes and short notes, which have been solely written by
the appellant.
 The respondent was scanning the entire hard copy of SCC, digitized it, and sold it
for a cheaper price. That is where the case arose from.

 R said that judgments don’t have copyright.

 Appellant invests a lot to edit, cross reference and do all these stuff on the raw
copy issued by the registry.

 Then, R responded and conceded that they will not scan the head notes or short
notes.

 Del HC (Division Bench) said that the judgement will still not be copyrighted.
Have not done enough work to be the ‘author’ of the work. Copy-edited text is
almost the same as the raw copy as per the division bench.

 Verbatim extractions from a judgement will not be a copyrighted work.

 There is an essence of creativity/originality in the preparation of head note/short

note.

 Appellant is not claiming copyright on the raw version, but on the copy-edited
version.

 Ladbroke v. Willim Hill: Issue on a copyright fixture.

 Original does not mean that it should be the expression of original or

inventive thought. Concerned with originality of expression of thought.

 Originality is a matter of degree depending on the amount of skill, labour and

judgement, as against compilation.

 For a stand alone work, you don’t need to worry about all this.

 For compilations, although it won’t be original in parts, it will be original

when put together.

 Wrong to consider it in parts. Always take compilations as a sum of its parts,

which might be original even though the parts are not.
  Courts look at whether some work or skill or ingenuity or expense has been
spent in compilation of the unoriginal work. This is done not for stand alone
works, but in case of compilations.

 V.Govindan v. EM Gopalakrishna Kone: Matter regarding dictionary.

 It was found that most things, word to word, were the same here. Even some
of the errors were repeated just like that.

 There were some deliberate changes to pass it off as original

 Article 1, section 8 of US Consti protects IP. Unprecedented. India has no such

obligation/power in its statute.

 Feist Publication v. Rural Telephones.

 About A copying the telephone directory of R

 Requirement of creativity is pretty low.

 Information, should always remain in public domain. It should not be

copyrighted.

 Raw facts can be copied at will.

 R argued that they got info from going door to door and collecting info.
Court rejected the doctrine of sweat and brow. That doctrine has a lot of
flaws, and can lead to the monopolization of facts, and go beyond protection
of selection and arrangement.

 Primary purpose of copyright is not to protect author, but to facilitate the

progress of science and arts.

 Need for modicum of creativity to be eligible for copyright protection.

Modicum of creativity is a slightly lower standard than novelty.

 But this is due to the constitutional mandate in Article 1, Section 8 in US.

 Can this part be adopted by India, who does not have such a constitutional
mandate?
 If we are only protecting selection and arrangement. Once there are already 100+
compilations on the same fact, making a novel way of compilation gets difficult.

 CCH Canadian Ltd v. Law Society of Upper Canada:

 R had a library for lawyers. Also had a provision where photostat of books
would be sent to its members on request.

 A, publisher, got mad and sued them. R challenged the copyright of A over
the works. A also published judgments like EBC.

 Product should be author’s original work. It has to be the result of an author’s

skill and judgment, and not merely mechanical. Judgment and skill should be
non-trivial, and non-mechanical.

 Sweat and brow standard is too low. Originality standard is too high.
Developed a third, intermediate standard.

 The skill and judgment should not be merely the result of labor and capital
(sweat of the brow), but need not be creative (novel or non-obvious)

 Focus on how the product was made, and not on the product.

 US focus is on the final product, and not on the process.

 When a judgment is separated into paragraphs, and emphasis is added (italics or

bold), there is an intellectual labor involved. You need to read the judgment, you
need to know the law enough to understand the thematic distribution of the
judgment, to facilitate the para breaks etc. It is not like putting a para break in
every 10 sentence.

 What standard was finally adopted by SC?

 What work was done by SCC? Described in Paras 39, and 41.

 To make the judgment more readable and user-friendly.

 This standard will be applicable only for compilation of compilations of public

domain information, such as judgments. For the rest, University of London is still
the ratio. (Sweat of the brow more or less)
 There is some creativity here. EBC would have won if the requirement for
creativity was as minimal as sweat of the brow (University London).

 Minimum creativity is not satisfied (US Standard). Skill & Judgment used here is
trivial (Canadian Standard).

 However, breaking into paragraphs require some levels of creativity. It requires

the author to read, understand the judgment, distinguish the arguments, majority,
dissent, part majority, concurring etc.

 Setting of paragraphs require someone to understand the subject, identify the

issues, statutes applicable, its interpretation etc. This will get copyright
protection.

 Putting in punctuation and copy-editing is merely mechanical and has trivial

creative input, even if it increases the utility.

 The editor’s input of classifying the judgment into majority, dissent, concurring
etc were also protected.

 Partly allowed the appeals. Protects para breaks and editor judgment citing the
decisions as ‘majority’, ‘minority’, ‘dissenting’, ‘partly dissenting’ etc. Does not
protect the punctuation or spelling corrections.

US Definition of Derivative Work:

 Based upon preexisting work.

 Any form in which a work may be recast, transformed, or adapted.

 Includes translation, musical arrangement, dramatization, fictionalization, motion

picture, sound recording, art reproduction, abridgment, condensation, editorial
revisions, annotations, or elaborations.

 As a whole, represents an original work of authorship.

University of Oxford v. Narendra Publishing - Del HC

 Plaintiff published textbooks in accordance with the syllabus of J&K Syllabus.
Published the textbooks in collaboration with the State Board.

 Textbooks were an adaptation of Dr. Roy’s books, of which the copyright was
with Plaintiff.

 Defendant allegedly copied the textbooks as ‘guides’

 Right to Free Speech only protects pornography when it is not obscene or illegal.
Copyright law protects even those.

 In patent law, immoral inventions are not patented. It is because patent law takes
into account the public interest.

 In trademark law, scandalous marks do not have right.

 But this public interest is absent in copyright law.

 Govt should not provide economic incentive for production of porn that is non-
progressive and non-useful.

 Defence argued that the Plaintiff’s work is a ‘derivative work’ and therefore,
requires a higher standard of creativity. Then only will they be eligible to get
copyright protection. Cited EBC Case for it.

 Check the US definition of Derivative Work above.

 SC did not agree: The sweat of the brow doctrine for derived works was rejected
in Feist Publications for the modicum of creativity standard. This was adopted by
India in EBC Publications.

 The work must be original “in the sense that by virtue of selection, co-ordination
or arrangement of pre-existing data contained in the work, a work somewhat
different in character is produced by the author”.

 Works that are somewhat different, involve some intellectual effort, and involve a
certain degree of creativity are the ones that deserve protection.
 For a derivative work, the copyright extends only to that part of the material that
was contributed by the author. The copyright in the original work is not affected
in any positive/negative way.

 Doctrine of Merger: When idea and expression are so interconnected and both are
indistinguishable. Then, copyright won’t apply. Because if that happens, there
will be inadvertently a copyright on idea.

Copyright on database

 What is the protection one has for creating data?

 Database Directive, EU - Articles 5 & 7.

 “qualitatively and/or quantitatively a substantial investment in either the

obtaining, verification or presentation of the contents to prevent extraction and/or
re-utilization of the whole or of a substantial part, evaluated qualitatively and/or
quantitatively, of the contents of that database.” - Article 7

 15 Years of protection - Article 10

 Section 43 of the IT Act provides civil remedies against anyone who downloads,
copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data
held or stored in any removable storage medium. Section 66 provides criminal
remedy too.

Eric Eldred v. John Ashcroft (US Court of Appeals, District of Columbia

Circuit)

 Does Copyright affect your freedom of speech? If copyright extends by x years, it

mean that I won’t be able to reproduce the work for x years. Petitioner was
grieved by an act of Congress that extended copyright protection for 20 more
years.
 Whether the copyright should exist for life + 50/70 is for the legislature to
determine; Petitioners Agree. But can they just extend it for existing works too?

 Petitioner’s business was around reproducing such works for which protection
have ended.

 Possible that one would be under the apprehension that the copyright of the
existing work will get extended again and again and again and again……

 Cannot rely on Feist with this case. Feist was about originality. This case is about
time limit.

 Held constitutional. Free speech and copyright will be complementary.

 It is fine as long as the copyright is not perpetual. That does not mean you can go
for 999 years.

Common Law Copyright

 Right to determine when and where the work will be first published

 Property right created. Perpetual Right.

 Publication terminates the common law copyright.

 Common Law copyright ends when statutory copyright starts.

 So, in US, common law copyright was abolished by the 1976 Copyright Act.

 One writes a letter to another. Common Law copyright with author, which
includes property right. Real property right rests with recipient. Both need to
support for publishing the works.

 In India, section 16 of Copyright Act prohibits every other type of copyright,

except the Indian statute.

Sanjay Kumar Gupta v. Sony Pictures

 About Kaun Banega Crorepati

 Appellant expressed the idea including people participation to Sony. The
Respondent copied the idea and started the show, but did not give recognition to
Appellant.

 Appellant alleges violation of copyright.

 Appellant also alleged that the idea was given in confidence and R broke the
confidentiality between the two. The confidentiality is a part of industry practice.

 Section 16 bars all other forms of copyright and similar rights except those
provided by statute.

 Cited Anil Gupta v. Kunal Das Gupta. (Del HC)

 In this case also, the A had conceived an idea of a show.

 A registered the concept by writing it down and thereby converting it to a

literary work.

 Court refused a permanent injunction. Gave a four month injunction. In this

time, the A can exploit the market in whatever way he wants. Let the market
decide.

 Unique relief.

 Not originating from copyright law. If it was, the only conclusion would be
infringement/no infringement.

 Court did not give a similar relief here.

 Only idea. Copyright does not protect idea.

 Copyright should be concerned about those copies that affects you commercially.
If I copy a line from a song and make a T-Shirt, there is no commercial loss for
the original author. So, that would not be protected by copyright. - Lawrence
Lessig
 What if that one quotation ends up exploiting your reputation? If it is one of the
most famous quote of my book which people always relate to me. My reputation
at stake here.

 Amounts to merchandising and will be protected by trademark law.

 When it is genuinely for the purpose of quotation, where the use is fair and
reasonable, is permitted by the law.

 De minimis non curat lex - Law does not care for small things.

 Pepsi Co v. Hindustan Coca Cola - Refused to give copyright to slogan “Yeh Dil
Mange More”

 What about titles? Go for trademark

Mattel v. Jayant Agarwalla

 Plaintiff sued defendant on the allegation that they infringed their copyright of the
game, SCRABBLE.

 The plaintiffs also claim that defendants have infringed their copyright in the
game board and the rules. By the use of red, pink, blue and light blue tiles, use of
identical patterns of arrangement of coloured tiles and the use of a star pattern on
the central square, the plaintiffs claim that the defendants have infringed their
copyright in the game board which is an artistic work.

 SCRABBLE v SCRABULOUS

 Are they monopolizing the game? Or are they monopolizing the rules and pattern
of the game only?

 The plaintiffs' claim to copyright is in respect of the three game- boards, with the
diagonal criss-cross design with placement of the double word, triple word,
double and triple letter values, as well as rules of the game.

 In the realm of copyright law the doctrine of merger postulates that were the idea
and expression are inextricably connected, it would not possible to distinguish
between two. In other words, the expression should be such that it is the idea, and
 vice-versa, resulting in an inseparable merger of the two. Applying this doctrine
courts have refused to protect (through copyright) the expression of an idea,
which can be expressed only in a very limited manner, because doing so would
confer monopoly on the ides itself.

 What is the standard of originality here?

 Our law too has recognized the shift, and mandates that not every effort or
industry, or expending of skill, results in copyrightable work, but only those
which create works that are somewhat different in character, involve some
intellectual effort, and involve a certain degree of creativity. This is the applicable
standard.

 Should EBC case even be applied here? How is it a derived work?

 Is EBC applicable for all works, all derived works, or all derived literary works?
No clarification. Would appreciate a clarification from SC.

 Here, EBC ratio was applied to an original work? Correct position?

 Court finally granted the trademark right of P over the name SCRABBLE and
ordered the D to not use its name.

Akuate Internet Services v. Star India (Del HC)

 BCCI organizes the cricket matches.

 A disseminated match updates through SMS.

 R argued that this is unfair competition, commercial misappropriation, unjust

enrichment. R spend almost 3000 crore rupees to get this right.

 Hot News, which has a momentary commercial value. Can it be monopolized?

 Not trying to copyright the entire information. Only the right to disseminate
information at the first instance.

 Feist Requirement of some creativity is the standard in India for copyright as per
EBC Case.
 R is not making anything novel here and therefore cannot have copyright.
However, they were only asking for a narrow right.

 Broadcasting right was only recognized after 1994 amendment.

 Neither Star, nor BCCI say that they have the right of property over the mobile
rights. The claim of Star is against the statutory scheme created by the Copyright
Act.

 If Star’s contentions were agreed to, it will amount to giving them monopoly over
that information in an indirect way. Since copyright path is not possible, the tort
path is taken now.

 Would have been different if Star created that information.

Barbara Taylor v. Sahara Media

 ‘Women of Substance’ novel by Barbara Taylor

 ‘Karishma - The Miracle of Destiny’ serial by Sahara. 250 episodes planned.

Only one episode aired.

 Can we find out infringement by just looking at the pilot episode?

 Another evidence - Director gave an interview admitting that the serial is based
on the novel.

 The law does not define what a copy is. Cannot use statute to show how an
infringement has happened. Court will find out by comparing the two pieces.

 Theme cannot be copyrighted. Romance, thriller etc cannot be copyrighted.

 Plot itself cannot also be monopolized.

 Similar characters cannot be copyrighted, or the idea of the character cannot be

copyrighted.

 But a well devised character can be copyrighted.

 A strong superhero cannot be copyrighted.

  But Shaktiman can be copyrighted.

 Why are these 3 not protected?

 The first answer is that these characters are common, no doubt, but too common.
Therefore, there is no protection given by the law to the first writer who is not
really the first writer at all. The above idea of the risk of a fortune being lost to
others, the other idea, of, say, two persons looking alike, are not the subject of the
author's original literary work. The second reason for not giving protection in this
regard is even more important. If plots and ordinary prototype characters were to
be protected by the copyright law, then soon would come a time in the literary
world, when no author would be able to write anything at all without infringing
copyright.

Emergent Genetics

 P developed some new variety of seeds. D also did the same. Both by genetics.

 While testing both, the genetic makeup of both seeds were substantially similar. P
claimed copyright in the genetic sequence of their plant, which D has copied
allegedly.

 No patents for plants in India for some reason.

 The Plaintiff argues, through its senior counsel that a DNA sequence has the
ingredients of a literary work because it is

 Capable of being expressed in writing or by analogous means.

 Analogous to a computer programme as it is a set of instructions not intended

for direct application by the human mind.

 It is urged that computer programs have been held to be literary work by

Courts in UK even before amendment of the statute.

 Is it original? P argues so.

 It was created by the toil and hard work of P and its scientists. Skill and labour
used in coding and decoding and recording it.
 However, it is a naturally occurring product. Isn’t nature the author? Aren’t
humans only doing the function of compiling it, such as the D in EBC Case? Or
one who discovers a historical fact.

 But here, is it only discovering a new genetic make up? Or changing the already
existing codes?

 Defendant argued that Plants have no patents as per Indian Patents Act.
Protection of Plant, Varieties and Farmers Rights Act, 2001 is the applicable law.

 Defendant also argues that it is only a mere compilation and therefore, no

copyright.

 The process only involves cross pollination

 It is argued that hybridisation involves cross pollination and does not relate to any
deliberate interference with DNA sequencing. The process of DNA sequencing
does not involve any literary work as the DNA sequencing is not known. No
copyright exists with respect to DNA sequencing anywhere in the world. It is
argued further that there is no similarity between a computer programme and
DNA sequencing.

 Parliamentary Intent: To not let plant varieties be protected. Judiciary should

abide by it.

 Plaintiff has prima facie not proved that the techniques they use are
‘confidential’. The seeds are commonly developed by the local farmers and
breeders.

 Del HC says that EBC ratio was “Our law mandates that not every effort or
industry, or expending of skill, results in copyrightable work, but only those
which create works that are some what different in character, involve some
intellectual effort, and involve a minimum degree of creativity.”

 The scientists here only discovers the works that are occurring in nature. They do
not create it.

 No minimum creativity. Just like a historian discovering a historical fact.

 The process of DNA modification in plants is literally denied patent by Indian
Law.

 2012 Amendment - Patent is for only 20 years. But if the patent is accompanied
with writing and drawing, they are eligible for copyright (longer) as literary and
artistic work. Indirectly getting what you cannot get directly. Rectified in 2012
and this was put under fair use in Section 52.

Artistic Work

 In Indian law, there are 3 sub sections. Paintings & Sculptures, Architecture, and
Artistic Craftsmanship.

 Artistic quality not needed for first, needed for second. And it is debatable for the
third.

 The definition itself makes it clear that paintings don’t require artistic quality.

 Section 2(b) & 13(5) about art in architecture.

 Nothing said about other works. But the name itself suggests that it is a work of
art and therefore, some art is needed.

 UK Law is more or less similar. US is different. US don’t care about artistic

quality ever.

 Difference in treatment due to inherent differences within artistic works.

 Paintings and Sculptures are the conventional artworks.

Associated Publishers v. K Bashyam

 Portrait of Gandhi in a sitting posture, is in the public domain. Anyone can make
portraits from it.

 Portrait was made by compounding two photos together. One for head and other
for body. Argued that labor and skill required to compound it is enough to qualify
for copyright.
 Logos eligible under both trademark and copyright.

 Trade dress has different protection

 If you have a blueprint, you have copyright over it, and over its 3D version. The
3D version includes the building.

 Why? Because a Blueprint is protected irrespective of artistic quality. So, if you

want to protect artistic quality, need to protect the building.

 Blueprint will be protected as art, building under structure.

 The market has a lot of cheap imitation of goods. It might not affect a person
financially, as the target consumer for both are different.

 Still, it is a violation of the designer’s right when they see their designs in cheap
imitations

Rajesh Masrani v. Tahiliani Design

 Alleged that the patterns and printings in a garment is artistic work. Also the
drawings made in course of development. Garments and accessories themselves
are also artistic work.

 Colorable imitation or substantial reproduction of the fabric is the source of

dispute here.

 Defendant Argued

 Plaintiff could not get protection under Designs Act. He did not register and
registration was mandatory here.

 No registration in copyright too, so no protection. (But in India, registration

is optional for copyright)

 Textile design is not artistic work, but design.

 Design, as defined by Designs Act, does not include artistic work in Copyright.

 Features of design

 features of shape, configuration, pattern, ornament or composition of lines or

colours

 applied to any article whether in two dimensional or three dimensional or in

both forms,

 any industrial process or means, whether manual, mechanical or chemical,

separate or combined,

 which in the finished article appeal to and are judged solely by the eye;

 does not include any

 mode or principle of construction or

 anything which is in substance a mere mechanical device,

 any trade mark as defined in clause (v) of sub-section (1) of section 2 of

the Trade and Merchandise Marks Act,

 property mark as defined in section 479 of the Indian Penal Code

 artistic work as defined in clause (c) of section 2 of the Copyright Act.

 For a car, the look adds to its value. So, its look is protected by Designs Act. That
is what Designs Act do. Functionality of the car will be protected by other laws.

 Here, it is the product of an industrial process.

 A holder of copyright can reproduce his work in another material. When that
reproduction is done in the manner envisage under Designs Act, that means that
the production will be produced will be protected by Designs Act.

 A painting will be an artistic work. If it is reproduced through an industrial

process, according to the manner in Designs Act, it will be a design protected by
the Act. For example, if the picture is printed in a t-shirt.

 How to prove novelty in design?

  Registration

 Created for the first time.

 Original - New application of existing design. Known design, but applied to

article for first time.

 Originating from the author.

 If registered under designs act, no copyright. If you are eligible for registration,
but do not do so, the copyright will still end if it is reproduced in an industrial
process 50 times by the owner or a licensee. Will end on the 51st item

 In this case, design was not registered. But there were only 20 copies of the
plaintiff’s design.

 If mass production happens, no copyright. Design won’t automatically attach,

need registration.

 Need to appeal to eyes.

Microfibers v. Girdhar

 Cheap copies of garments. Similar facts as earlier case. Relied on in the earlier
case.

 An example of a painting of Ganesha' was given which would enjoy full

copyright protection during the lifetime of the author plus 60 years. However, if
the author applied the said painting of Ganesha' to a furnishing, to be
commercially reproduced, such a painting when applied to a furnishing gets
limited copyright protection under the Designs Act, 2000. The act of applying the
painting to a furnishing, however, does not mean that the full copyright protection
of the stand alone work of art/artistic work such as Ganesha' is lost. If anyone
seeks to only reproduce the drawing/painting as a standalone work of art, it would
violate copyright of the author. (Para 17)

 Artistic may or may not have visual appeal. But design needs it.
 Legislative intent was to grant a higher protection to pure original artistic works
such as paintings, sculptures etc and lesser period of protection to design activity
commercial in nature. The period of copyright would be the author's life span
plus 60 years. However, the legislature has allocated a lesser time span for the
protection available to a registered design as only being 15 years.

 Commerce and Art treated differently. Art>Commerce

 The original art is still safe. Only copyright of the manufactured product declines
after 50.

Dramatic Work

 Needs fixation. In writing or other form.

 It is the work behind the performance, not the performance itself. Through script,
notation, description or any other form.

 Idea-Expression dichotomy. The idea of a romantic play where two warring

families cause the death of young lovers is not protected. But Romeo and Juliet
will be.

 Also, in dance, some moves will be so popular that they will be considered to be
in public domain. Example, moonwalk.

 A detailed script is always a dramatic work.

 In UK, the statute just says dramatic works include dance or mime. Does not
provide specific categories where you have to put a work so as to qualify for
protection.

 No differentiation between dramatic work and cinematographic work.

 US Statutes do not define dramatic work at all. Just says that drama includes
accompanied music (but not necessarily)

 Audience is not a requirement in dramatic work. Only fixation.

RG Anand v. M/s Deluxe Films

 Criteria for infringement explained. Classic case.

 There was a play which was happening all over India and was very popular.

 R made it to a film.

 Common plot, theme is not infringement. If two works come from the same
source, it will be similar.

 Fundamental or substantial aspects of one work should not be similar with

another.

 Should not be a literal imitation with some variations here and there.

 Laid out 7 step guidelines to find infringement.

Academy of General Education v. Malini Mallya

 Yakshagana is a form of ballet dance with its own heritage.

 Director of Appellant institute developed a new form of Yakshagana, called

Yaksharanga. It is defined as a creative extension of traditional Yakshagana.

 Yakshagana is in public domain, but Yaksharanga was the creation of the

Appellant.

 Director’s Will: I hereby declare that after my death copyrights in respect of all
my literary works shall vest with Smt. Malini Mallya and she alone shall be
entitled to receive royalties of all my books and she shall be entitled to print,
publish and republish and market the same.

 Will Yaksha Ranga be part of this will? Should we give a legal definition of
literary work, or give a wider interpretation to find what the author actually
meant?

 Residuary Clause: Any outstanding due to me and Bank Deposits and whatever
assets or properties not mentioned above, that is, residuary after my death shall
belong to Smt. Malini Mallya alone.
 When Malini Mallya was organizing a performance of Yaksha Ranga, appellant
institute filed for an injunction.

 HC held that bequesting literary works to Mallya would include all intellectual
work, including his dramatic works.

 SC Agreed, held to be fair use.

Musical Work

 In copyright law, musical work is split into two: Composition and lyrics. Former
is musical, latter literary.

 Graphical notations will also be included. But not mandatory. Notations will not
be insisted on.

 UK is similar, lyrics included in US.

Moral Right of Integrity

 Indian Law gives a bundle of rights to owner of copyright. Section 14. For the
commercial exploitation of these works. Based on two philosophical arguments

 Locke’s Theory of Property: Product of your labour should be controlled by

the person who worked on it. Kinda liek sweat of the brow.

 Utilitarian Justification: Similar to the American Principle which says

copyright is for the progress of Science and Arts.

 Moral Rights are based on a different philosophy. From Hegel’s Personality

Theory, which says that a work is an extension of a person’s personality.

 Difference in IP Regimes in civil law v common law.

 Civil Law treats moral rights with more sincerity. 4 Moral Rights are recognized
there.

 Their pressure led Berne Convention incorporating at least two of the moral
rights to them.
 Two rights recognized in India under Section 57

 Right to Attribution (Paternity right)

 Right to be recognized as the author of the work. Prevent misattribution

to someone else.

 Positive duty to be exhibited as the author of the work. Why there is a

long list of credits at the end of movies.

 Right to Integrity

 Prejudicial to honor or integrity

 Two other rights exist, which are not recognized by Indian Law

 Right to Publication. To decide whether or not to publish a manuscript.

 Right to withdraw/modify an already published work.

 Wouldn’t this affect the investment made by the publisher/book shop

owner etc?

 Indemnification is there as a safeguard.

 If work has been withdrawed and LATER, the author decides to

republish the work, right to first refusal with the publisher. Terms of
republishing will be same as the first contract?

 Fair Use is not a defense against moral rights.

 2012 Amendment of Copyright Act:

 Removed the co-terminus requirement of Moral Right and Copyright. Moral

Right is now perpetual.

 Legal Representatives can have both moral rights. Only right to integrity was
there earlier. Reps can enforce the moral right of the author in perpetuity.

 Extended moral right to performers too.

 Waiving off copyright does not mean that moral rights will be waived off. Can
Moral Rights be ever waived off?
 Artists in earlier stages of their career are made to sign standard contracts which
waives off many rights. Do they remove the moral rights too?

 On the other hand, can an author sue a filmmaker for making the film horribly?
Despite the author giving the adaptation right to the filmmaker. This would make
the adaptation right useless, if author can interfere a lot based on the moral right.

 A broad waivering off rights will not be valid. The waivering off has to be
specific and needs to address the foreseeable instances where moral rights can be
waived off.

 German Courts have even evolved a inalienable core rights approach. A smaller
subset within moral rights.

 Prejudicial to Honor/Reputation.

 Javed Akhtar-Modi Film example.

 Distortion, mutilation, modification or other act.

 Other Act will also include recontextualization (based on foreign case laws,
since Indian laws have not talked much over it)

 Proving that it affects your honor/reputation is the tough part.

 Why should Legal Reps get moral right? It is not the extension of THEIR
personality right?

 Can they exercise the right inconsistent with the personality of the original
author?

 Succession Model: Since they have got the rights now, their subjective
interests will be supreme. If author wanted his rights to be exercised in such a
way, he would provide it in a will. Since there is none, best to leave it with
the reps.

 Trust Model: Need to exercise moral rights as the guardian of the author’s
interests. If it is a feminist work, reps cannot put it in a sexist content citing
their absolute right.
 These are models proposed by academic circles. Both can be opted by courts. The
words in 57(2) has no safeguards.

Honour and Reputation

 What is the difference?

 Reputation is more like how the society sees you, while honour is how you see
yourself.

 If you are famous for writing mystery thrillers, that is your reputation, and your
honor is neutral.

 Subjective Test for Civil Jurisdictions. Author’s subjective view is sufficient.

Authors should be the sole judge of whether their reputation is ruined or not.

 Courts have evolved certain safeguards though. Doctrine of Abuse. Courts can
dismiss moral rights claim which are inconsistent with the purposes of moral
rights. For eg, to indirectly renegotiating a contract.

 Objective + Subjective Test - Snow v Eaton. Plaintiff constructed a structure for

the Defendant shopping centre. As part of Christmas celeb, D decorated it with
ribbons and all. P feels that his work and his reputation is being ruined by the
additions.

 Here, not only P’s views but the views of well respected artists in the field were
also considered. So, it becomes a objective + subjective test.

 P’s novel was abridged by D. Does that affect his reputation?

 Guest lectures invited did not reduce, he was not ridiculed by peers or
newspapers etc. So, no prejudice (Prise de Parole v. Gukrin)

 Objective Test: Only looks at objective factors. Expert opinions, public opinion
only.

 Pasterfield v. Denham

 Amar Nath Sehgal v. UoI

  ANS is an internationally reputed sculptor, who was approached by UoI to
build a statue in Vigyan Bhavan.

 After few years, it was removed and kept in a Govt storeroom, led to partial
destruction.

 Tried to make a claim to replace the mural, unsuccessful.

 Approached Del HC for 2 reasons

 Declaration about his moral right being affected

 To return the sculpture

 Moral Rights prevent a distorted representation of an author’s work.

 Govt said that since the sculpture is destroyed, no occassion for sculptor’s
reputation being affected.

 Rights have been given to Govt, which includes the right to destroy it a s
well.

 Also, Govt says that if you ask anyone in India, they will only respect ANS.
No damage to reputation.

 Finding for Plaintiff

 Raj Rewal v UoI

 P was the architect of a building. After few years, Govt decides to destroy it.

 Internationally reputed structure.

 P wanted to injunct the destruction. Or in alternative, let him build the same
structure elsewhere

 Did not allow it here. D has a right to freely deal with their property. Moral
Rights cannot stop that right. Article 300A is a constitutional right.

 Went with D. Based on the reasonableness standard.

 Manu Bhandari v. Kala Vikas Pictures

  Distorted version of P’s novel made into a movie. Her fans would doubt her
sincerity believing that she greenlit such a destruction of her movie.

 D said that she signed so no more claim.

 Section says ‘even after the assignment’. So, D argument rejected.

 P did not ask for money. Shows her attitude towards the case. It is not
financially motivated.

Parody and Satire v. Author’s Integrity

 Parody - Using an imitation of the original work for any other purpose. Maybe to
highlight the flaws of the original work.

 Example - Girl before Wall Street bull. Symbolic against frustration of women
executives in Wall Street.

 Case saying that the placing of the Girl statue distorts the message he meant to
give with his statue. He wanted to communicate the positive nature of US
Markets.

 Now, it became a symbol of gendered greedy Capitalism, not of hope. The

message of the bull changes which affects his reputation.

 But people have a right to make a parody.

Joint Ownership

 Section 2(z). When contribution of one author cannot be distinguished from the
other.

 Without consent of the other owner, license/interest in the work cannot be granted
to a third party.

 Indian rule is more like having a veto power even for the smallest contribution.

 Section 22: Authorship survives till the death of last owner + 60 years. Both
representatives of owners can exercise the right.
Fair Use

 Refer case at page 534

 Photocopy under fair use? Section 52, Copyright Act.

 52(1) says that things taught as part of a course by a teacher is protected. So,
photocopying materials on the instruction of teacher/student is protected.

 But without such instruction, no protection.

 If photocopy of a study material is taken and sold for half the price, it becomes an
infringement.

 How much quantity can be taken? Not specified.

 52 makes an act, which is otherwise an infringement, not an infringement. (para

39, page 518)

 “in the course of instruction” has a wide meaning. Not just a one hour class when
class happens. Entire period when students are under tutelage of teacher.

 Even the preparation of teacher, holding tests, clarifying doubts, preparing

syllabus etc are counted there (Para 72, page 539)

 Selling photocopy is infringement. Procuring photocopies beforehand so as to

ditribute to students once the students arrive is not.

 Practically, different to distinguish between both.

 Copyright is not a divine right to protect authors. It is mean to stimulate authors

and creative/productive work.

 So, copying and distribution to students will not be infringement.