Chapter – II

PROTECTION OF COPYRIGHT UNDER COPYRIGHT LAW

2.1 What Copyright Protects.

A copyright gives certain exclusive rights to persons who create original

works of authorship, including literary, dramatic, musical, artistic and
certain other intellectual works. This protection is available to both
published and unpublished works. Copyrightable works include the
following categories:

 literary works
 musical works, including any accompanying words
 dramatic works, including any accompanying music
 pantomimes and choreographic works
 pictorial, graphic and sculptural works
 motion pictures and other audiovisual works
 sound recordings
 architectural plans, drawings and actual buildings

These categories should be viewed broadly. For example, the code used to
create computer programs may be registered as a "literary work." Maps and
architectural plans may be registered as "pictorial, graphic and sculptural
works." A dance could be registered as both a choreographic work (if written
down or otherwise recorded) and as an audiovisual work (if filmed).

To be protected by copyright, the work must be more than an idea. It must

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

2.2 RIGHTS OF COPYRIGHT OWNERSHIP

Copyright ownership gives the holder of the copyright in an original work of

authorship six exclusive rights:

 The right to reproduce and make copies of an original work;

 The right to prepare derivative works based on the original work;
 The right to distribute copies to the public by sale or another form of
transfer, such as rental or lending;
 The right to publicly perform the work;
 The right to publicly display the work, and
 The right to perform sound recordings publicly through digital audio
transmission.

The categories of things that count as an original work of authorship

include literature, computer programs, dramatic scripts, choreographed or
pantomimed work, motion pictures, video art, graphics, sculptures, and
architectural plans. Each of these categories is broadly construed. When
any of these rights are infringed with regard to an original work of
authorship, the holder of the rights may bring a copyright lawsuit to enforce
those rights.

However, any of these six rights or some aspect of them can be

transferred. Two methods of transfer are licensing and assignment. If the
transfer is on an exclusive basis, it has to be in writing and signed by the
copyright owner or an authorized agent. Nonexclusive transfers of rights
need not be in writing.

2.3 Who Owns the Copyright?

The author owns the rights associated with an original work of authorship.
The “author” is usually the person who creates the copyrightable expression
and actually fixes it in a tangible medium1.

However, some original works of authorship are “works for hire.” In the
most straightforward cases, this means that an employer or a
commissioning entity has a contract with the creator to create the work,
and the employer paid for the work and took the financial risks associated
with it. The employer is the initial owner of the copyright and has the six
exclusive rights mentioned above.

Copyright in works created by an employee within the scope of employment,

primarily in the workplace, and on the clock is likely to be found to be work
for hire. Courts will look at whether the work was started in order to serve
the employer. Similarly, a work that is created by an independent contractor
can be considered a work for hire if the parties expressly agree it is for hire
in a written, signed instrument, and the work is a contribution to a
collective work, part of a motion picture or audiovisual work, a translation,
a compilation, a supplementary or instructional text, a test or its answers,
or an atlas.

In some cases, two or more authors come together to create a joint work or
a collective work. Who owns the copyright then? Assuming that the authors
intended to merge their contributions into an inseparable whole, the
authors of a joint work are co-owners of the copyright unless there is an
express assignment of copyright.

An author of an individual work in a collective work, such as an anthology,

maintains his or her copyright in his or her own contribution unless there is
a contract specifying otherwise. However, the compiler or editor of a
collection keeps copyright in the portion of the work he or she authored as
well as the selection and arrangement of the works.

Illustration. In this case, Sony Pictures filed a suit against numerous

defendants primarily praying for a permanent injunction against
reproducing, making available, distributing, broadcasting, and so on of the
cricket matches between India’s tours of England and Sri Lanka. During the
pendency of the suit, Sony Pictures prayed for an interim injunction asking
for more or less similar reliefs.

The Court granted an injunction in favour of Sony Pictures against websites

including their redirects, mirrors and alpha-numeric versions. A dynamic
injunction was also granted against rogue websites, which may reproduce,
broadcast, make available, communicate to public or distribute the cricket
matches. The Court also passed an order asking ISPs to block the
mentioned and other rogue websites, and asked Government of India to give
appropriate directions to prevent infringement of copyrights of Sony Pictures
in the matches.

The interim injunction also covered MSOs and cable operators, and local
commissioners were appointed to monitor and act against violations of the
Court’s orders. The Court’s orders primarily cover the copyrights held by
Sony Pictures, and by implication permits non-infringing uses and fair
uses of the content pertaining to the cricket matches between India and
England/Sri Lanka 1.

1. Sony Pictures Network India Pvt. Ltd. vs. www.sportsala.tv And Ors., High Court of Delhi,
CS(COMM) 289/2021
2.4 Copyright Designs and Patents Act

The Copyright Designs and Patents Act (1988) gives creators of digital media
the rights to control how their work is used and distributed. Music, books,
videos, games and software can all be covered by copyright law.

Anything which you design or code is automatically copyrighted and may

not be copied without your permission, as the digital creator.

The Copyright, Designs and Patents Act has two main purposes:

 To ensure people are rewarded for their endeavours

 To give protection to the copyright holder if someone tries to copy or

steal their work.

When you buy software, for example, copyright law forbids you from:

 Giving a copy to a friend

 Making a copy and then selling it
 Using the software on a network (unless the licence you signed allows
it. For example, you may be allowed to install an app on 3 devices
within a family)
 Renting the software without the permission of the copyright holder

Some applications or programs will only run if a special piece of hardware is

plugged into the computer or if a unique code is entered for that specific
device.
2.4 RENTAL RIGHTS UNDER INDIAN COPYRIGHT LAWS

Copyright is a bundle of rights that exist with the owner or author of the
work who has all the rights of exploitation of the work in any manner he
wants which includes rental rights as well. Rental rights are rights to rent
copies of work. No person other that the owner of the copyright can rent the
work unless they have a license to do so.

Initially, rental rights were not included in the Indian Copyright Act, 1957,
and it was introduced in India through an amendment in 1994 by including
the term ‘hire’ in Section 14 which dealt with the economic rights of author.
The International treaties on Copyright adopted by WTO and WIPO required
the member countries to draft domestic laws at par with the treaties. Article
11 of TRIPS agreement, Article 7 of WCT (WIPO Copyright Treaty) and
Article 9 of WPPT (WIPO Performances and Phonograms Treaty) provides for
commercial rental rights for Computer programme and Cinematograph
films. In accordance with the treaties, the Indian Government (being India is
a member country of WTO and WIPO) amended the Copyright Act in 2012,
included the term ‘Commercial Rental’ replacing the word ‘hire’ and the
term was also defined in Section 2 (fa). It states as follows:

“Commercial rental’ does not include the rental, lease or lending of a

lawfully acquired copy of a computer programme, sound recording, visual
recording or cinematograph film for non-profit purposes by a non-profit
library or non-profit educational institution”

The Amendment also explains that, a ‘non-profit library or non-profit

educational institution’ means a library or educational institution which
receives grants from the Government or exempted from payment of tax
under the Income Tax Act, 1961.

In India, the rental rights are provided for computer programmes,

cinematograph films and sound recordings under Section 14 (b), (d) & (e).
The rights are, however, limited for commercial purposes and expressly
excludes the rental rights for non- commercial purposes. This means an
author cannot claim rental rights over lending of books, magazines or other
work when it is done by an institution without any profit motive. Hence,
libraries, educational institutions can freely rent the books or other work
without any license or permission from the author of the work.

Computer software, which are configured as an essential part of the object

can only be rented by the owner of the software. For example, the owner can
give software for rent where it is created for merging/splitting up the files,
but when software is accompanying any machine where it is not a
substantial part; the owner of the software would not be able to give it for
rent under copyright laws.

Cinematograph films can only be licensed or rented out by the producer or

owner of the film through distributor or otherwise as case may be. For
instance, the theatres such as PVR, INOX, AGS cinemas get the license to
exhibit the movies for public as provided under Copyright Law and the
owner of theaters are generally not free to make use of the same for other
works like exploitation of songs, audio/video, D.V.D. etc., as there is only
temporary transfer or permission to use the movie for consideration.
However, I am sure most of us have encountered those shops which lend
movies on a small amount of rent (which btw most of the time are pirated),
is not legal under copyright laws in India. The amended Copyright Laws
clearly specifies that, the owner of the cinematograph films has commercial
rental rights and accordingly, if any person acts in contravention of the
economic rights given under section 14 of the Act will amount to copyright
infringement. On the same grounds the Torrent was shut down in 2015
which was a huge platform of pirated movies and other copyrighted work
and had no licence to share the content.

The Copyright Laws work the same for Sound recordings as cinematograph
films. If you want a song on your phone, you should buy or download it
from an authenticated application to avoid the copyright infringement.

The laws in India have become strict in last few years attempting to avoid
the copyright infringement and save the economic and moral rights of the
author or owner of the work. The Copyright Amendment Act, 2012 provides
the commercial rental rights to owner to avoid the copyright infringement by
making it easier for the customers/users to use the work in a lesser amount
which will certainly result in reduction of copyright infringement. The
Amendment has also expressly excluded the rental rights in copyrighted
works for institutions with non-profit motive to facilitate knowledge and art
for educational and social purposes without any cost.

The Copyright Amendment Act of 2012 is considered a major amendment

as it brought with it some essential modifications for a more seamless
operation of the Copyright Laws. The salient features of the amendment is
as

follows:
1. The 2012 Amendment has incorporated the definition of the term
‘commercial rental‘ under section 2(fa).

2. The term ‘hire’ in Section 14 which made it fall in consonance with the
provisions of Article 11 of TRIPS Agreement, Article 7 of WCT and Article 9
of WPPT which provide for ‘commercial rental’ rights for computer
programmes and cinematograph films, was replaced by the term
‘commercial rental’ itself by the Amendment.

3. The term ‘storing’ has been incorporated under various Sections most
notably under Section 14 which adds the recognition of the exclusive right
of storing the work created in any medium by electronic or other means.

4. The duration of copyright protection of a photograph has been put at par

with that of a literary work, i.e. the lifetime of the author until sixty years
from the beginning of the calendar year next following the year in which the
author dies.

5. The 2012 Amendments, Sections 52(l)(zb) and 31B were inserted which
stipulate exceptions and limitations for persons with disabilities, hence are
referred to as special provisions for persons with disabilities.

6. The Amendment also clarifies who the first owner is in respect of a work
incorporated in a cinematograph film under the Amendments to Section 17.

7. The Amendments also have added provisos under Section 18 of the

Copyright Act which aim at providing certain safety measures to the author
from any future modes of exploitation which may arise by way of
technological advancements and which were not contemplated at the time of
assignment.

8. The Amendment has also provided for the option of relinquishment of

rights under section 21. The author of a work can relinquish all or any of
the rights in the copyright pf a protected work through a simple public
notice.

9. The Amendment changed the procedure for licensing under Section 30

and requires the license only to be made in writing.

10. The Amendment made the provisions of compulsory licensing apply to

international works as well, under Section 31.

11. The Amendment also incorporated the statutory licensing provisions

under Section 31C and Section 31D.

12. The Amendment has also extended the fair dealing provisions under
Section 52 covering all works (sans computer programme), including sound
recordings and video recordings.

13. The Amendments also brought in various changes for the registration
and functioning of Copyright Societies under Chapter VII of the Copyright
Act, 1957. India is a member of the Berne Convention of 1886 (as modified
in Paris 1971) as well as the Universal Copyright Convention of 1951. As
recent as 2018, India has also given it acceded to the WIPO Internet
Treaties, i.e. the WIOP Copyright Treaty, 1986 (WCT) and the WIPO
Performance and Phonogram Treaty, 1996 (WPPT). These treaties are
together called the WIPO Internet Treaties owing to the emphasis they put
on the protection of rights in the digital environment.