S.

No
Name Topic Details
.

US - X used to digitise works - when copyright term used to end -

was waiting for copyright term of some works to end - Extension
act passed - question it as being violative of free speech - Court
Eldred v. held that in the IP clause - promotion of progress of science - right
Ashcroft to extend - unless perpetual - can be for existing as well as
prospective works - engine doctrine - free speech used to
diseminate works that come into existence through incentivisation
of IP law.

LITERARY WORK

University
London Press v.
ULP - Question Papers - UTP - Question Papers + their Answers -
University Facts
cited as infringement.
Tutorial Press,
Ch Division

Act in contention - Copyright Act, 1911 - like Indian Copyright

Act, 1957 - only contained an inclusive illustrative definition and
Question 1: Are
not a comprehensive one - Court said that literary does not refer to
Question Papers
works of Shakespear as it may seem for those works necess. then
literary works?
Decided in favour include considerations of quality, style and literary finish - but even
(Because copyright
of Plaintiff things like books of bills etc. "The words literary work cover work
subsists in only
which is expressed in print or writing irrespective of the question
original literary
whether the quality or style is high." Hence, Question papers are
works)
literary works. [Very important - because definition of literary
work is derived from ULP v UTP]

Originality - not of ideas/thoughts but of expression - doesn’t mean

expression has to be in novel form but that 1) It has to originate
from author; 2) Not copied. Here, it was alleged that QP did not
Question 2: Are
satisfy these critera because used public domain knowledge - Court
Question Papers
diff. between elementary v. advanced mathematics papers and said
"original"? (And
that Professors used own "selection, judgment and experience" -
therefore,
public domain knowledge would obv. have to be used otherwise
copyrightable)
only historians will get Copyright Protection - hence, original and
consequently "subject of copyright" (What is worth copying is
worth protecting)
 A provision similar to Section 17 of the Copyright Act - author first
owner of the copyright unless an "employment contract of service
or apprenticeship". Court basically differentiated between "contract
of service" and "cotract for service" - it said contract of service
required obeying instructions regarding manner of work - degree of
Question 3: Who is
independence and place of work etc. have to be seen - the
the owner of the
Professors who made the question papers not regular employees
copyright?
but being paid to set QP and check them - given full independence
to use own skill and judgment to decide standard of knowledge
expected, take their time, to decide level of difficulty, questions to
be given provided its ready by final date - Hence, no "contract of
service".

Court said - first owner rules given - assignment only when in

Question 4:
writing and done by author or agent in this case- did not happen -
Whether there was
hence, no equitable assignment- hence, University not owner of
an equitable
copyright and no locus standi - claim fails for the QP set by
assignment?
examiners who have not joined as plaintiffs.

Question 5:
Whether UTP
UTP had lifted multiple advanced mathematics papers from ULP -
infringed ULP's
not provided solutions to them - but merely 11 lines of criticisms -
copyright? -
UTP claimed "fair dealing" because of educational purposes -
interrelated - with
Court said that way every educational book could be reproduced -
the question of
rejected. UTP held in infringment.
exception of
infringment.

Plaintiff - conceived the ida of producing a reality TV programme

in 1996 - process of matchmaking - like Swayamnvar - work also
registered as a "literary work" in 1997 - revealed to Defendant in
the form of a concept note followed by a detailed presentation
(alleged by counsel as being in utmost good faith and
Anil Gupta v. confidentiality as is the practice) - at that time, first of its kind
Kunal Dasgupta show - never seen or heard of - Ad found later where Defendant
2 Facts
(Delhi HC, 2002, nnounced similar show Shubh Vivah - details uncannily similar to
pg. 261) Plaintiff's concept - infringment is being alleged - said that strict
confidence breached - commercial potential of idea affected
because potential investors lured away - asked for interim
injunction (prima facie, balance of convenience, irreparable harm) -
till Plaintiff's version released - claimed his cocnept as being novel
+ unique + original.

Plea of breach of trust and confidentiality - broader than copyright -

idea need to be fully developed - detailed format and presentation
Decided in favour
Plaintiff arguments given - unjust enrichment and unfair - springboard - that concept
of Plaintiff
production of Plaintiff's brain - Defendant could have come up only
after going through it.
 Concept was in public domain (had approached other producers
also)- Swayamnvar a mythological concept - can't be copyrighted -
mere vague information given - only idea not expression - should
have clarified explicitly about confidentiality - onus on plainfitff.
Refers to the 7 points of RG Anand - 1. No copyright in idea,
theme, subject matter etc.; 2. Common source doctrine -
Defendant similarities are bound to occur - substantial copy/imitation to lead
arguments to infringment; 3. Viewer gets unmistakable impressionof copy; 4.
Theme is same but presentation and treatment so different so as to
amount to new work - no infringment; 5. Despite similarities,
material and broad dissimilarities - negative the intention; 6. Clear
and cogent evidence cause piracy; 6. Onus higher in case of
violation of stage play by film producer - viewers' opinion test. Not
novel or unique - similar shows existed outside India.

1) Whether idea conceived was novel and could be protected?; 2)

Questions Whether information given was confidential; 3) Appropriate
injunction?

Idea per se is not copyrightable but when fleshed out in the form of
Court on Question
a concept + original where mythological concept of Sqayamnvar
1
has been borrowed into reality TV- can be protected.

Just because other people knew or applied for registration doesn't

mean public domain - confidentiality had to be followed - even if
specifically not stated - inherent that in such field of competition,
Court on Question the person who gets information should be placed under such
2 disability - otherwise catastrophe in TV industry - authors' ideas
will keep getting stolen - unfair competition and reaping the fruits
of the labour of the Plaintiff - Defendant did not reveal many
information but whatever revealed similar to Plaintiff.

Final On three grounds of Interim injunction, granted - of 4 + 2 months.

 Case is on idea-expression dichotomy which states that idea is not
protected - however exception created where idea has been fleshed
out really well - contrast with the doctrine of Idea-expression
merger or Scènes à faire - which states that some ideas have only
one or limited type of expressions therefore expression merged into
the idea and even expression cannot be protected - eg. Cops case -
This doctrine postulates that where the idea and expression are
intrinsically connected, and that the expression is indistinguishable
EXTRA from the idea, copyright protection cannot be granted. Therefore, if
the idea and expression are so well merged that the idea itself
becomes copyrightable, it would hinder the growth of creativity
which is against the very objective of copyright law. The doctrine
of merger provides that when the expression is the idea, and vice-
versa, and there is only one way to express the underlying idea , the
idea will merge with the expression as to make them
indistinguishable. Consequently, the expression becomes non-
copyrightable

merge is US Supreme Court judgment in Baker v Selden , 101

U.S. 99 (1880). In that case the plaintiff sought to have accounting
forms he created covered by the copyright protection he obtained
for a book he wrote in which he explained a method of book-
keeping that he had developed. The Supreme Court concluded that
the protection the plaintiff was afforded for his book, which
described the accounting system idea, would not cover the forms,
which proved to be the tangible manifestation of his idea. The
Court's rationale has come to be known as the merger doctrine.

The Delhi High Court in the case of MATTEL, INC. and ORS.
Vs. Jayant Agarwalla and others, explained the doctrine of
merger in following words:

“In the realm of copyright law the doctrine of merger postulates

Idea-Expression
that were the idea and expression are inextricably connected, it
Merger
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 “.

In Chancellor Masters of Oxford v. Narendra Publishing

House, the Supreme Court of India held that mathematical
questions are expressions of laws of nature. Since language is a
limited medium, such laws of nature can be expressed only in a
few ways. Hence, extension of copyright protection for questions
would deny access to ideas that they encompass. For these reasons,
the Court held that copyright could not be extended to the
 Appeal against Delhi HC Division Bench judgment - EBC
publisher company - comes out with law reports SCC which are
compiled by picking "raw judgments" which are then "copy edited
EBC v Modak by a team of assistant staff and various inputs are put in the
3 Facts
(2007, SC) judgment and orders to make them user friendly by making an
addition of cross-references, standardization or formatting of the
text, paragraph numbering, verification and by putting other inputs
+ along with Headnotes

Making headnotes and doing these changes in the judgments

involve skill, labour and capital as well as infrastructural and
monetary investment - is an "original literary work" and its
reproduction/scanning done by Defendant is "infringement" under
Plaintiff
Section 51 of the Act - the Defendants allegedly lifted the full
submissions
copy-edited judgments including sequencing, formatting etc.
additions and changes made by the EBC. Cumulatively, the law
report as a whole - should have copyright - on account of
substantial contributions of skill, labour and capital.

Before Single Judge of HC, Defendants conceded that Headnotes

are copyrightable and therefore will not be copied - Division bench
said further said that even footnotes and editorial notes are original
literary works of the Plaintiffs and therefore cannot be copied - for
History the rest of the judgment, it said - "merely" by adding certain user-
freindly inputs - can't claim copyright over the copy of the
judgment - defeats the very purpose of having them in public
domain (under Section 52(1)(q) copying of judgments not
infringment).

1) What would be the standard of "originality" for the reported

Issues framed by judgment which is a derivative work? 2) Whether the entire
the Court version of the judgment an "original literary work" and therefore
entitled to protection.
2(k) = government work, 2(o) Literary work and 2(y) work -
Provisison
judgments delivered would be government work - because under
important
the direction/control of judiciary/tribunals.

There are two types of literary works - a) primary or prior which

Definition of
are not based on existing subject matter (or works of first instance)
derivative work
and b) secondary or derivative works - which are based on existing
(important - para
subject matter. Whether such derivative work has copyright -
13 + 14)
depend upon labour, skill and capital or creativity?

Skill, labour and capital as long as it is not trivial - Court should

protect the efforts put in by one party - the originality determined
Sweat of the brow through the fact that it is not copied and that it originates from the
doctrine author by usage of substantial skill, degree and experience - more
than a mere copy = sufficient - also called as the industrious
standard of originality - premise efforts must be rewarded.
 Rural had White and Yellow pages telephone directory - Fiest
asked for permission to use- not given - Fiest used without
permission - Rural argued that Fiest should go door to door and
collect information instead of using information of Rural collected
through efforts (Sweat of the Brow based argument) - Court
rejected the Sweat of the Brow Doctrine - glaring flaws - leads to
protection not only to selection and arangement but the information
Feist Publications contained therein - the new compiler will be forced to collect same
v Rural Telephone info from same sources - against the principle of copyright that no
Service monopoly in facts or ideas - NEW THRESHOLD - originality
means created by author and some minimal degree of creativity:
requisite level of creativity is extremely low; even a slight
amount will suffice - Premise : Primary objective of copyright not
to protect the labour of the author but progress of science -
selection or arrangement cannot be copied but the information can
be - creativity threshold ensures that protection onyl to expression
and not to ideas.

Library reproducing works - infringement case filed - Court

rejected both sweat of the brow and creativity standards - sweat of
CCH Canadian the brow - too low - hampers disemination of information- at the
Ltd. V Upper same time - creativity - too high - means non-obvious or novel
Society (Canada which is more of patent standard than copyright - it is sufficient if
SC) skill and judgment is involved - but skill and judgment should not
be merely mechanical in nature - thus merely labour and capital
does not amount to originality.

Mere labour, skill and capital not sufficient - sufficient when the
derivative work is os somewhat a different character from the
EBC SC (Para 38) primary work - need not be creative in the sense of non-
obviousness but at the same time not mere labour or capital - must
have some distinguishable features

The mechanical alterations like Sectio, Rule, cross-citations etc.-

trivial variation won't satisfy - those of garden variety- do not
satisfy the mininum requirement of creativity - the creativity
requirement is not that of non-obviousness or novelty but some
EBC SC (Para 39- minimum amount of creativty is required. On the other hand, the
41) paragraph numbers as well as the statements stating that a
particular judge "dissented" or "concurred" has a flavour of
minimum amount of creativity - for this, the Plaintiff must have
read the entire judgment and had sound knowledge to be able to
divide in paras and add these phrases.
 Plaintiff published mathematical text books for students of Class
XI based on prescribed structure by the J&K State board -
Chancellor v.
publicatio in collab. with the J&K State Board - books adapted
Narendra
edition of AK Roy book (copyright for which also vested with the
5 Publishing House Facts
Plaintiff). An infringement action brought against Guide books -
(2008, Delhi HC)
copied the questions from the Textbook including arrangement and
[Page 332]
sequencing - competes with the Textbook and eats into its market
share.

Defendant relies upon fair use - because Guide Books - used for
educational purposes - also says that there was no substantial
copying as merely questions copied along with solved answers.
Defendant Main averment that the questions in the Plaintiff books and their
arrangement etc. is derivative work (based on prescribed syllabus)
so according to EBC - higher standard of creativity needs to be
proven.

1) Whether the work of the plaintiff which has been reproduced

Questions
(the questions) merit copyright protection; and 2) Has the
(IMPORTANT)
Defendant sufficiently made out a fair dealing defence.

Copyright - fundamental norm is that no protection to

ideas/thoughts (Ref. to Baker v. Selden and RG Anand Point No.
1) Only expression of ideas are protection - that too, not all
expressions are protected - only those expressions which are "fixed
in a medium" and "are original" are protected. What is original has
undergone a paradigm shift - from sweat of the brow (University
London) to modicum of creativity (Fiest) to CCH which was
followed in EBC. It refers to EBC and states the standard set by
Ref. to EBC
EBC - appreciates that EBC rejected sweat of the brow and
modicum of creativity as beign extreme positions and set the
standard that by virtue of "selection, coordination and arrangement,
work of somewhat different character" - thresholds - not every
skill, labour and industry = original - only those which 1) leads to
somewhat different in character; 2) involve some intellectual effort;
3) involve a certain degree of creativity. Case to be decided against
this standard of originality.

An aspect peculiar to law called doctrine of merger is involved in

this case. Where idea and expression are intrinsically connected
and that the expression is indistinguishable from the idea, the
Idea-expression
copyright protection cannot be granted - courts have refused to
dichotomy and
provide protection to ideas which can only be expressed in one or
merger
limited manners - Herbert Jewelry Case - bee shaped jewel pins -
idea free to copy - since limited ways of expressing - expression
also no copyright.
 Plaintiff has failed to show how the arrangement, selection etc. of
the questions in the Textbook satisfies the criteria of "minimum
degree of creatvity as mandated by Indian Law post EBC" -
Mathematical questions are expressions of laws of the nature -
because language is restrictive - these laws can only be expressed
Decision on Q.1
in limited ways - granting copyright to these limited ways of
expression will confer copyright on the natural laws themselves -
which copyright does not want - involvement of J&K Board which
had a course structure and all negates the existence of creativity in
the work of plaintiff.

Fair use and Fair

Dealing

Walter v Lane [1900] AC 539, was a judgement of the House of

Lords on the question of Authorship under the Copyright Act 1842.
It has come to be recognised as a seminal case on the notion
of originality in copyright law and has been upheld as an early
example of the sweat of the brow doctrine.Reporters from The
Times newspaper took down shorthand notes of a series of
speeches given by the Earl of Roseberry, a prominent politician,
and later transcribed them, adding punctuation, corrections and
revisions to reproduce verbatim the speeches. These were then
published in The Times. The respondent in the case published a
book including these speeches, taken substantially from the reports
of those speeches in The Times. The question for the court was
whether the reporters of the speech could be considered "authors"
Walter v. Lane Sweat of the brow
under the terms of the Copyright Act. The House of Lords, by a 4-1
[1900] doctrine.
majority, reversed the decision of the Court of Appeal. The court
held that the reporters were authors under the Copyright Act 1842.
The effort, skill and time that spent was sufficient to make them
original. For Lord Brampton, was crucial that the "preparation [of
the reports] involved considerable intellectual skill and brain labour
beyond the mere mechanical operation of writing". Lord
Robertson, dissenting, compared the reporters to phonographs and
found that there was no authorship even though there was much
skill required. Although the Copyright Act 1842 did not contain a
notion of "originality" (the word original did not appear until the
enactment of the Copyright Act 1911), the decision in Walter v
Lane would later be treated as authority for the notion of
"originality" within English copyright law.
 Rameshwari Photocopying Services present in the Delhi School of
Rameshwari Economics ('DSE') was engaged in "systematic" photocopying of
Photocopying books by the Oxford Press, Cambridge Press efc. - 8 books found
Services (Delhi Facts cover-to-cover phtocopied - substantial portions of other books -
HC, 2016) [Main copyright infringement alleged - exception of "fair use" sought -
from page 408] Section 52(1)(h) states that materials used by a teacher or pupil "in
the course of instruction" does not amount to infringement.

The court interpreted the fair use defence for educational purposes
as given in Section 52(1)(I) which mentions usage by pupil or
teacher "in the course of instruction" - not limited to merely
"in the course of
personal or face-to-face interface between pupil-teacher but the
instruction"
entire team pupil under tutelage of teacher including preparation of
syllabus, course structure, preparing for teaching, clarifying doubts
etc.

Court referred to Williams v. Wilkins company wherein similar

action by the Medical photcopier of medical research articles not
consdired as infringement. Court said nowadays every student has
phone - if they click pictures of books and then print - that would
also be fair use. Court said that when in other countries - less
labour available - therefore, students photocopy themselves - not
infringement - just becuase photocopy has been facilitated through
Decision someone doesn't mean it'll amount to infringement - further, if
allowed for 10-20 students, mere increase in number of students to
100-200 doesn't make it infringement - the photocopier is not
creating full copies, binding them and displaying them for sale for
all desirous buying thereby creating a substitute for the copyrighted
book - but merely compiling relevant prescribed portions from each
book - these are not substitutes but created for the purpose of
educational instruction - not infringement.

Referred to international instruments - Berne Convention and

TRIPS - Berne Convention Article 8 and 9 and TRIPS state that
each country can create special situations where reproduction is
allowed provided such exceptions do not "unreasonable prejudice
the legitimate interests of the author". The court cannot determine
what legit. interestsa and unreasonable prejudice are - but the
International
legislature does - the legislature in India thinks that the purpose of
Covenants
educational instruction is justified and while putting this in the act -
did not create a rider on the extent of reproduction - if the
legislature hasn't the court can't - means that the Indian legislature
thinks that any extent of reproduction justfied by the purpose of
education - acts and judgments of other countries merely
illustrative - diff from Indian act.
 The word 'Exonn' not copyrightable because it does not convey any
ifnormation or instruction - no utility - Court said a literary work
Exonn v. Exonn
must convey some information or instruction - shrinking of
vocabulory

"Yeh Dil Maange More" phrase was coined - is this copyrightable?

Hindustan Coca
- argued it is (Single judge held not) - not common phrase - coined
Cola Pepsi Case
and therefore original + literary

ARTISTIC WORK

Toy building bricks were manufactured by Lego in accordance

with engineering drawings made for that purpose. One issue was
whether new drawings made since 1972, altering the original
1 Interlego v Tyco Facts
drawings in various minor respects but added new information
addressed to the purchaser in the form of written instructions, gave
rise to a new and independent copyright.

Not every minor alteration created a new copyright. Skill, labour

and judgment expended solely in the process of copying could not
confer originality. There had to be some additional element of
Held
material alteration sufficient to make the work an original work. It
was the quality rather than the quantity of the addition which
merited protection.
 Lord Oliver of Aylmerton said: ‘Take the simplest case of artistic
copyright, a painting or a photograph. It takes great skill, judgment
and labour to produce a good copy by painting or to produce an
enlarged photograph from a positive print, but no one would
reasonably contend that the copy painting or enlargement was an
‘original’ artistic work in which the copier is entitled to claim
copyright. Skill, labour or judgment merely in the process of
copying cannot confer originality . . There must in addition be
some element of material alteration or embellishment which
suffices to make the totality of the work an original work. Of
course, even a relatively small alteration or addition quantitatively
may, if material, suffice to convert that which is substantially
Detail
copied from an earlier work into an original work. Whether it does
so or not is a question of degree having regard to the quality rather
than the quantity of the addition. But copying, per se, however
much skill or labour may be devoted to the process, cannot make
an original work. A well executed tracing is the result of much
labour and skill but remains what it is, a tracing. Moreover it must
be borne in mind that the Copyright Act 1956 confers protection on
an original work for a generous period. The prolongation of the
period of statutory protection by periodic reproduction of the
original work with minor alterations is an operation which requires
to be scrutinised with some caution to ensure that that for which
protection is claimed really is an original artistic work.’

Pencil - floral print- box - Is there a opyright over box? - Court said
Camlin v. no copyright - mechanical process - no labour or skill of author -
2
National Pencil no "original artistic work" - plus more than 50 copies so Designs
Act -
 The Plaintiff, a private limited company under the “creative
leadership” of fashion designer Tarun Tahliani, had alleged that the
drawings which it made in the course of developing garments and
accessories were artistic works under Section 2 (c) (i) of the
Copyright Act. The patterns printed and embroidered on the fabric
were also alleged to be artistic works in their own right, as were the
garments finally designed. Further, the plaintiff had alleged
Tarun Tahiliani Facts and infringement of copyright in these various artistic works, and a
3
v. Rajiv Masrani contentions Single Judge had issued an interim injunction in its favour.

The defendant-appellant raised several arguments in appeal, and at

least two of them merit deeper consideration. The first was that the
garments and drawings were not ‘artistic works’ for the purposes
of copyright protection; and the second was that in any case, the
drawings were required to be registered as designs under Section
15 (2) of the Copyright Act.

Decision READ

DRAMATIC WORKS

Yakshagana - variation called "Yakhsharanga" developed by Dr.

Academy of
Karanth of the Defendant insitute - in his will - Para 11 gave all
General
"literary works" to Malini and in Para 12 all residuary properties to
1 Education v. Facts
Malini - death before 2000 - in 2001 Defendant institute performed
Malini Maliya
Yaksharanga in front of non-paying audience as tribute to Dr.
(2003, SC)
Karanth - copyright infringement filed by Malini.

Court says - yes there exists dramatic literature but when difference
Dramatic v. between literary and dramatic work created in statute, Yaksharanga
Literary work prasangas can't come under literary work - so by virtue of Para 12
and not 11, Malini holds copyright.
According to the Court, Section 52(a)(i) and 52(l) important -
which talk about private use , criticism and review - because the
Extra opinion
dramatic work being performed before a non-paying audience in
tribute - hence seems does not amount to infringement.

Norowzian v. Joy not "dramatic work" because of jump-cutting technique lost

2
Arks performability

MUSICAL WORKS
 "musical work" ? Clause (p) of Section 2 of the Act defines it as
under :

A "musical work" means any combination of melody and harmony

Gramophone
or either of them, printed, reduced to writing or otherwise
Company v. ?
graphically produced or reproduced".A version recording, we are
Super Casettes
told, is a sound recording made of an already published song by
using another voice or voices and with different musicians and
arrangers. Version record-is thus neither copying nor reproduction
of the original recording.

This is a dispute that broke out in a matter involving rights over

Indian literary and music works for which the copyright subsides in
India. Parties to the dispute where the Indian performing right
society and the cinematograph exhibitors association of India.
IPRS incorporated on23/08/1969 in the state of Maharashtra
governed by copyright Act 1957 has the authority for issuing
licenses for performance in public of all existing future Indian
literary and music works for which the copyright subsides in India
and is a company limited by guarantee for the purpose of granting
license for all present and future Indian musical works to be
performed in public.
IPRS v. Eastern
IPRS claimed that it is entitled to royalty in case the literary work
Indian Motion
Facts used in cinematograph films is broadcasted on radio stations as
Pictures (Pre-
they claimed themselves to be assignees of the literary works and
amendment)
laid down a tariff for the same.
The association of cinematograph exhibitors opposed to the same
saying that IPRS has absolutely no rights over these works and that
the production house was the real owner of copyrights over the
literary work in question since composer loses his rights under
contract of service between production houses especially when
there is a consideration involved.
Appeal was preferred as the objectors were dissatisfied with the
high court decision which allowed claim made by the
cinematographers association and further laid down that
assignment of future work has no effect.
 Issue no: 1
A composer can assign rights over a future work. The assignment
takes effect once the composition comes into existence. Section 30
of the copyright act 1957 lays down that assignment of work is
possible by means of issuing a license in favor of the prospective
owner of the copyright. The rights can be transferred by means of a
document duly signed by the owner or the assignee. Present and
Issue 1 -
future works of a composer can be assigned; however the
Assignment of
assignment comes into effect only after the work in question comes
present and future
into existence.
works
Once an agreement is entered into between the production house
and the composer for incorporating the composer’s composition;
composer loses his rights over the composition and the production
house becomes the owner of the copyright. The agreement can be a
present as well as a future one. In either case IPRS cannot claim
royalty as it has absolutely no rights over it. However case is
different in case of lack of any agreement.

Issue no: 2
The court held that the composer loses his right over the
composition automatically when he enters into an agreement with a
cinematograph producer to compose songs to be incorporated in
the film for a consideration. Section 17(c) of the copyright act lays
down that the producer shall be the owner of the composition in
Issue 2 - Who is case of consideration and that the composition automatically
the owner of becomes a part of the cinematography film and the composer loses
copyright? his rights over it completely and works falling under such category
cannot be assigned further. IPRS cannot claim royalty as the
production house has the right over the composition the moment it
comes into existence. Here there is a contract of service between
the composer and production house. In this case the producer of the
cinematograph film becomes the absolute owner and the authority
cannot be questioned.

Post-2012 Section 18 and 19 - mandatory sharing of royalty with lyricists and

amendment composers

CINEMATOGRAPHIC WORK

Primary question - whether a film can be a dramatic work (for the

purpose of the UK copyright, patents and designs act)- Decisive
question - if it is dramatic work - has "Anticipation" been
substantially copied from "Joy" and thus is infringing. Joy = short
Facts film with no dialogues - shot on rooftop - man casually dressed
dancing - locked off shooting technique and jump cutting editing
technique - final result is two successive steps that can't be
performed in reality - surreal. In Anticipation, similar jump cutting
Mehdi Norowzian
technique used and one man dancing.
v. Arks (UK SC,
1998, 3 Judges) |
Relation between
dramatic and
cinematograph
work
Mehdi Norowzian
v. Arks (UK SC,
1998, 3 Judges) |
Relation between Lower judge had held that film per se not a dramatic work - can be
dramatic and a means to record a dramatic work. SC judge stated that film can be
cinematograph a dramatic work - definition very wide - no exclusion -dictionary
work meaning of dramatic work = "work of action capable of being
performed" - since Joy satsifies , it is a film and a dramatic work.
Judge 1 Concurs with lower judge that Joy cannot be called a recording of
the dramatic work because the underlying work is not capable of
performance because of the editing techniques - the original uncut
version might be recording of dramatic work but final film isn't -
further, no substantial copyign has been done by Anticipation so as
to lead to infringement.

Sometimes some performances will have no other means of

fixation apart from film - then film would be equal to dramatic
work - it being capable of performed by showing the film to
audience - hence, Joy was film - there was no substantil copying as
Judge 2
the essence of both films different - merely using same technique
doesn't amount to copying - techniques can't be monopolised -
susbtantiality detrmined on the basis of impression formed by
seeing two films - completely different.

A serial named "Kyunki bahu bhi kabhi saas hogi" made with
similarties to the famous serial "Kyunki saas bhi kabhi bahu thi".
Star India v. Leo
Infringement alleged - three questions - 1) Whether copyright in
Burnette (2002, Facts and questions
serial infringed; 2) Whether artistic work (logo) infringed?; 3)
Bom HC)
Whether guilty of passing off by misrepresentation and encashing
upon the goodwill of the serial.

What amounts to making a "copy" of a film - referred to dictionary

meanings - then referred to the definition of "infringing copy"
given in the copyright act - differentiated between the scope of
Court
copying in literary, artistic etc. v. cinematographic work - in
Cinematographic work, only physical copying counts - if recording
is idependent - that does not amount to infringement.

Is there any monopoly over the titel - No; Is there any monopoly
over the theme? - No, as per RG Anand; No substantial similarity
Sir ot unmistikable impression as per RG Anand - how does 200+
episodes expressed in mere 9 seconds - only theme or idea
conveyed.

SOUND RECORDING
 In 2007, Super Cassettes Industries Limited (SCIL) filed a suit
against MySpace, a social networking platform, alleging copyright
infringement against MySpace. The platform allowed users to
upload and share media files, inter alia, and it was discovered that
users were sharing SCIL’s copyrighted works sans authorisation.
SCIL promptly proceeded to file a civil suit against MySpace for
primary infringement under section 51(a)(i) of the Copyright Act
as well as secondary infringement under section 51(a)(ii).

The 2012 order was extremely worrisome as it had turned the clock
several decades back on concepts of internet intermediary liability.
Myspace v. Super
The court had held MySpace liable for copyright infringement
Cassettes (Dec Facts and History
despite it having shown no knowledge about specific instances of
2016 judgment)
infringement; that it removed infringing content upon complaints;
and that Super Cassettes had failed to submit songs to MySpace's
song ID database. The most impractical burden of duty that the
court pronounced was that MySpace was required to pre-screen
content, rather than relying on post-infringement measures to
remove infringing content. This was a result of interpreting due
diligence to include pre-screening.

The court injuncted MySpace from permitting any uploads of

SCIL's copyrighted content, and directed to expeditiously execute
content removal requests.
 Elaborating re the circumstances of the case, the Court held that to
attract liability for secondary infringement, MySpace should have
had actual knowledge and not mere awareness of the infringement.
Appreciating the difference between virtual and physical worlds,
the judgment stated “the nature of internet media is such that the
interpretation of knowledge cannot be the same as that is used for a
physical premise.”

As per the court, the following facts only amounted to a general

awareness, which was not sufficient to establish secondary
liability:
Whether Myspace
Existence of user agreement terms which prohibited users from
had knowledge of
unauthorised uploading of content;
infringement
Operation of post-infringement mechanisms instituted by MySpace
thereby
to identify and remove content;
amounting to
SCIL sharing a voluminous catalogue of 100,000 copyrighted
violation under
songs with MySpace, expecting the latter to monitor and quell any
Article 51(a)(ii)?
infringement;
Modifying videos to insert ads in them: SCIL contended that
MySpace invited users to share and upload content which it would
use to insert ads and make revenues – and this amounted to
knowledge. The Court found that video modification for ad
insertion only changed the format of the video and not the content;
further, it was a pure automated process and there was no human
intervention.
Additionally, no constructive knowledge could be attributed to
MySpace to demonstrate reasonable ground for believing that
infringement had occurred. A reasonable belief could emerge only
after MySpace had perused all the content uploaded and shared on
its platform – a task that was impossible to perform due to the

The Court imposed a duty on SCIL to specify the works in which it

owned copyright and being shared without authorisation on
MySpace. It held that merely giving names of all content it owned
without expressly pointing out the infringing works was contrary to
the established principles of copyright law. Further, MySpace
contended and the judge agreed, that in many instances the works
were legally shared by distributors and performers – and often
users created remixed works which only bore semblance to the title
of the copyright work.
"
In such cases it becomes even more important for a plaintiff such
as MySpace to provide specific titles, because while an
intermediary may remove the content fearing liability and damages,
an authorized individual’s license and right to fair use will suffer or
stand negated. (Para 38 in decision)

Thus, where as MySpace undoubtedly permitted a place of profit

for communication of infringing works uploaded by users, it did
not have specific knowledge, nor reasonable belief of the
infringement.
 Setting aside the Single Judge's order aside, the Court directed
SCIL to provide a specific catalogue of infringing works which
also pointed to the URL of the files. Upon receiving such specific
Order knowledge, MySpace has been directed to remove the content
within 36 hours of the issued notice. MySpace will also keep an
account of the removals, and the revenues earned from ads placed
for calculating damages at the trial stage.

RIGHTS

ECONOMIC RIGHT

Video parlour - procures DVDs - sells them in India - DVDs only

Warner Bros v.
for American market - tehcnically copies already in circulation but
Santosh VG
under Section 52 importing without permission might be
(2009)
infringement.

MORAL RIGHTS

Amar Nath
Mural at Vigyan Bhawan - in 1979, removed and kept in storage
8 Sehgal v. UoI Facts
house - claim under moral rights filed by author Amar Nath Sehgal
(2005, Delhi HC)

Author has the right to preserve, protect and nurture his creations
through his moral rights. Different moral rights of the author - 1)
Paternity/Attribution/Identification right - to claim authorship that
he made; 2) Dissemination right - selling his work for valuable
Prelim.
consideration; 3) Integrity right - to maintain purity of work - if
anything harms his reputation - can be objected; 4) Retraction right
- when author can ask the creation to be withdrawn because
opinion changed over passage of time. (Para 25)

Article 6 bis of the Berne Covention talks about moral rights - apart
from mutilation, distortion and modification, it includes "other
derogatory actions". Vests even after author has parted with
Article 6bis of the economic rights. Negative impact (harm or prejudice to honor or
Berne Convention reputation) needs to be shown - when there is "destruction" the
work no longer remain so how does it harm the reputation - some
say that destruction in it self it prejudicial to reputation because it
leads to narrow or reduction in the creative corpus of the author.
 Argued that remedy need not be restricted to injunction or damages
but anythin necessary to protect the ethos of the creation -
Copyright Act,
mutilation would include "destruction". Court said moral right also
1957, Section 57
important to protect social attitude of respect towards individual
creativity.

The Amar Nath mural had almost gained the status of national
cultural property and national treasure. Hence, court referred to
Cultural property
multiple international instruments which encompass three-fold
important
obligatins - i) to respect cultural right; ii) to protect cultural right;
iii) to preserve cultural right.

The Amar Nath mural had almost gained the status of national
cultural property and national treasure. Hence, court referred to
Decision multiple international instruments which encompass three-fold
obligatins - i) to respect cultural right; ii) to protect cultural right;
iii) to preserve cultural right.

PERFORMERS' RIGHTS

Dev Anand had a contract with Fortune Films - that in certain

Fortune Films v.
locations, film could be released only if Dev Anand felt that
Dev Anand (1979
Dev Anand case sufficient consideration had been given - he said not sufficient -
- pre performers'
even if film is released, remove Dev Anand's parts. (Akin to
rights)
performers' rights)

BROADCASTING RIGHTS

In 2012, by an Agreement, BCCI granted exclusive broadcasting

rights to Star TV to disseminate the information/content emanating
from the cricket matches; other copyrights emanating from
recording of the live match too were assigned which included the
right to record, reproduce, broadcast , etc. Sometime later,
Cricbuzz, Idea Cellular and ONMOBILE started SMS services
providing contemporaneous ball-by ball coverage of live cricket
BCCI -STAR - matches. Star TV India(plaintiff/Respondents) filed three suits
Mobile services against Piyush Agarwal (Cricbuzz), Idea Cellular and
case ONMOBILE(Appellants/Defendants). The “mobile distribution”
rights were the bone of contention in the proceedings. The BCCI
was arrayed as the common defendant in all the three cases. BCCI,
however, supported Star, claiming paramount rights over all
information emanating from cricketing events as the organizer and
promoter of that sport in India. Star alleged that the defendants had
violated those rights and consequently filed a suit for permanent
injunction and damages.

MISCELLANEOUS
 DE MINIMIS

The line "mera chain wain sab ujda" in an advertisement by India

TV - actually about "milawat at kirana dukaan". Second, nine
songs sung by Vasundhra Das in actual sung in parts in a Chat
India TV v. show where her life was being discussed. Copyright violation
Facts
Yashraj (2009) alleged by Yashraj who had produced those movies and Yash Raj
Music must have produced those songs (conceded that
cinematograph clips playing in the background should not have
been done)

Court discussed the de minimis doctrine in detail - means that law

does not concern itself with trifle - trivial violations not amouting
to infringement in law - five principles of de minimis - a) Size and
type of copying; b) Purpose of legal obligation violation; c) Intent
De Minimis of the wrong-doer; d) Impact on third parties' rights; e) cost of
adjudication. This doctrine by some court has been mixed with the
concepts of "substantial copying" or "fair use's fifth ground of
potential impact on the market" - shouldn't be done - discuss de
minimis standalone.

Only five words - merely three seconds - intent to show Kirana

shops listen to radio - not to appropriate - purpose to create a
Advertisement commercial awareness ad - any payment that might had to be paid
if asked for permission much less that the adjudication cost
accruing - de minimis applies - no infringement.

Out of 45 minutes, only 10 minutes of songs - only to accentuate

her life jounrey - people are going to remember her life journey not
Chat Show
the songs - intent not to appropriate but because she had sung those
songs - so important to chat show.

DEFENCES

Civic Chandran One play critictised by another play - defence of "crticism" to

v. Ammini Amma Criticism infringement - 1) Quantum & value of the matter taken in the name
(1996) of criticism; 2) Purpose; 3) Likelihood of competition
Narendra
Review Giving step-by-step answer to questions amounts to their review.
Publishing
Delhi Photocopy In the course of
Case instruction
Malini Mallya Performance for non-paying audience