Basics of Indian

Copyright Law
- “Anything worth copying is worth protecting.”
Historical Background of Indian
Copyright Law
 Signficantly inspired by the Berne Convention for the Protection of Literary and
Artistic Works (1886)
 The first Copyright Act of India was enacted in 1847, during the regime of East
India Company.
 The act was replaced by the Copyright Act of 1914 popularly categorized as the
'modern' copyright law of India.
 Copyright Act, 1914 was the first law to include all works of art and literature
under the ambit of copyright. It was a replica of the English law of 1911. It was
done by the British to ease the passage of literature over colonial subcontinent.
 Post-independence era: Copyright Act, 1957 replaced the Act of 1914 and brought
groundbreaking changes in the copyright regime.
 To keep up with current developments , several amendmens were made to the
Copyright Act, 1957. - in 1983, 1984, 1992 and post the TRIPS Agreement in 1994,
1999 and 2012.
 What is protected under Copyright?
(Section 13)

 Original literary work (thesis, poetry, novels, etc.)

 Original dramatic work (screenplays, dance, choreographic notations,
plays, skits, etc.)
 Original musical work (tunes, melodies, songs, etc.)
 Original artistic work (cartoons, paintings, maps, diagrams. etc.)
 Cinematograph films (owned by the person who enables the film to
be made - Producer - Production houses like Red Chillies
Entertainment, Miramax, etc.,)
 Sound recording (owned by the person who enables the recording -
Producer - studios like T-Series, Tips, etc.)
 Architectural work (only extends to artistic character and design and
not to process of construction)
Originality

 The word “original” does not mean that the work must be expression original
or inventive thought.
 Copyright law is not concerned with the originality of ideas, but with the
expression of thought. (expression depends on the nature of work i.e. literary
work, musical work, artistic work, etc.)
 To secure copyright for the product, it was necessary that the labour, skill and
capital should have been expended sufficiently to impart to the product some
quality or character that the raw material did not possess. [Macmillan v.
Cooper, AIR 1924 PC 75]
 In case of a derivative work, the standard of creativity required to qualify as
a work in which copyright subsisted was higher than the standard required in
cases of primary works. [Dr. Reckeweg & Co. GMBH v. Adven Biotech Private
Ltd., 2008 (38) PTC 308 (Del)]
 Doctrine of Sweat of the Brow

 ‘Original’, as the term is used in copyright law, refers to only that work that
was independently created by the author (as opposed to that which was
copied from other works), and that it possesses at some minimal degree of
creativity. [US Supreme Court in Feist Publications Inc. v. Rural Telephone
Services Co. Inc., 499 US 340 : 113 L Ed 2d 358]
 In Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, the Supreme Court
held that only compiler’s selection and arrangement may be protected – raw
facts may be copied at will.
 The court rejected the doctrine because it had many flaws. The most glaring
being that it extended copyright protection to the original facts and beyond
selection and arrangement in relation to a compilation – the compiler’s
original contributions.
 Indian courts have widely accepted the principle of “modicum of creativity”
as opposed to the sweat of the brow.
 Who is an Author? (Section 17)

 Author of a work is the first owner of the copyright in the work - afterward he
can assign, sell or license his right.

Nature of work Author (First owner)

Literary work Author
Artistic work Artist
Musical work Composer
Photograph Person who clicks the photograph
Cinematograph film Producer
Sound recording Producer
Architectural work Architect
 Idea/Expression Dichotomy

 Under the Copyright Act, an idea, no matter how original or novel, does not get
any protection.
 Original expression of even an unoriginal idea is eligible for protection.
 Expression must be original. If the expression of an idea is a copy of some other
work it won’t be protected as it would amount to infringement.
 Idea of making a show about tribe of Madhya Pradesh, idea of writing a poem on
College life, idea of writing a story about your childhood dreams - all are not
eligible for protection.
 If someone else writes a book about your childhood using different names or even
their childhood after they got the idea from you they will get protection because
they expressed the idea.
 Two people can write the story based on the same idea of inter-religion love story.
 How they express it, how they treat, develop and present the characters, how
they shape the story gives the expression originality which is protectable.
 Barbara Taylor Bradford v. Sahara Media
Entertainment Ltd., 2004 (28) PTC 474 (Cal) (DB)

 The Calcutta High Court observed the following:

• Law protects originality of expression and not originality of the central idea
due to the balancing of two conflicting policies:
First policy: The law must protect originality of work, thereby allowing the
authors to reap the fruits of their labour and stopping unscrupulous pirates from
enjoying the fruits.
Second policy: The protection must not become an over protection, thus,
curbing down future creativity.
• If mere plots and characters were to be protected by copyright, an author
could not write anything “original” at all, on a similar plot or on similar
characters.
Idea/Expression Dichotomy

 In Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd., 2003 (27) PTC
457 (Bom)(DB), the Bombay High Court observed that the law did not
recognize property right in abstract ideas, nor was an idea protected by a
copyright. It became copyrighted work only when it was given embodiment in
a tangible form. But where the plaintiff had developed an idea into various
concept notes, character sketches, detailed plot of episodes, they would
become subject matter of copyright protection.
 Anil Gupta v. Kunal Dasgupta, 2002 (25) PTC 1: Plaintiff conceived an idea
of a reality TV show based on matchmaking and swayamvar and developed a
concept note – defendant borrowed the concept without the consent of the
plaintiff
 Urmi Juvekar Chiang v. Global Broadcast News Limited, 2008 (36) PTC 377
(Bom): Plaintiff developed a concept note of a show that followed the lives of
citizens as they tried to solve civil problems of the society - defendant
borrowed the concept without the consent of the plaintiff
Dramatic Work
 A dramatic work can be defined as ‘a work created in order to be
communicated in motion, that is, through a sequence of actions, movements,
irrespective of the technique by which this movement is retrieved or
expressed. [P. Kanina, Authorship of Films and Implementation of the Term
Directive: The Dramatic Tale of Two Copyrights, (1994) EIPR 319, 320]
 In Institute for Inner Studies v. Charlotte Anderson, 2014 (57) PTC 228 (Del)
the Delhi HC stated that for a work to be called as a dramatic work, the
“work has to be the one which is capable of physically performed or
accompanied by action”
 The other requirement for a work to be called as dramatic work is fixation of
the manner in the form of writing or otherwise which means certainly of
incidents as a predetermined plan. Work should not fall short of the
requirements for fixation or expectation of the author/writer.
Choreographic Work
 Choreography is the art of arranging or designing of ballet or stage dance in
symbolic language. In order to qualify for copyright protection, it must be
reduced to writing.
 The term “writing” may be defined to include any form of notation or code,
whether by hand or otherwise and regardless of the method by which, or
medium in or on which, it is recorded.
 Whether Asanas of Yoga or Pranic Healing can be considered as choreographic
work?
 In Institute for Inner Studies v. Charlotte Anderson, the court stated that on
careful understanding of the concept of dramatic work, it could be concluded
that the arts and exercises like Yoga, Pranic Healing Technique or daily
routine exercises though appeared to be choreographic work but they were as
a matter of fact not a choreographic work.
Musical Work
 “Musical work” means a work consisting of music and includes any graphical
notation of such work, but does not include any words or any action, intended
to be sung, spoken or performed with the music. [Section 2(p)]
 In order to qualify for copyright protection, a musical work must be original.
 In Star India v. Piyush Agarwal, 2014 (58) PTC 169 (Del), the Delhi HC stated
that music was different from sound i.e. music only meant what were musical
notes which were found on the paper or other writing medium, and not what
was heard.
 What was heard, and which was called music in layman’s terms, was really a
sound created by the musician by playing an instrument in terms of musical
notes.
 In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures
Assn., (1977) 2 SCC 820, Justice Krishna Iyer observed: “copyrighted music is
not the soulful tune, the superb singing, the glorious voice or the wonderful
rendering. It is the melody or harmony reduced to print, writing or graphic
form.”
Artistic Work
 According to Section 2(c), artistic work includes the following:
1. painting, sculpture, drawing (diagram, map, chart or plan), engraving, photograph
(whether or not any such work possess artistic quality)
2. work of architecture
3. work of artistic craftsmanship (a/c) – not defined in the Act (handicrafts, reproduction by
hand or machine)
 It may reasonably be inferred that nothing could would a work of a/c unless is satisfies
some unspoken criterion of artistic quality – Jeremy Philips
 A work of craftsmanship would be artistic if a substantial section of the public admired and
valued it for its appearance – Lord Reid
 For a work to be of artistic craftsmanship , it should be purchased for its aesthetic and not
its functional qualities – Lord Russell
 One determines the status of a work of a/c by examining the state of mind of the
craftsman – Lord Kilbrandon
 Prototype of furniture qualified for copyright – distinctive characteristics of shape, form
and finish – resulted in articles that were much more than purely utilitarian – according to
Graham J.
 House of Lords was of the opposite opinion regarding the copyrightability of prototype
furniture
 Some higher level of artistic intent or attainment is necessary for a work to qualify as work
of a/c for © protection.
 Copyright: A Bundle of Exclusive Rights
(Section 14)

- In case of literary, dramatic or musical work:

 To reproduce the work in any material form including the storing of it in any medium by eletronic
means (CD, DVD, etc.)
 to issue copies of the work to the public except those copies that are already in circulation*
 To perform the work in public or communicate it to the public
 To make any cinematograph film or sound recording in respect of the work;
 To make any translation of the work
 To make any adaptation of the work
 In case of a computer program, cinematograph film or a sound recording, to sell or give on
commercial rental or offer for sale or for commercial rental any copy of the computer program.
 In case of an artistic work, to depict a 2D work as 3D or a 3D work as 2D.

*FIRST SALE DOCTRINE: Once a sale of a copyrighted work has been made legally and the purchaser has legitimately acquired the
copy, the owner of the copyright doesn’t have the right to bar further sales and he loses his property rights in that particular copy.
 Joint Authorship
 Work of joint authorship means a work produced by the collaboration of two
or more authors in which the contribution of one author is not distinct from
the contribution of the other author or authors. [Section 2(z)]
 In Donoghue v. Allied Newspapers Ltd. (1937), entire material was supplied
by Donoghue to Felstead, who was a journalist.
 The material was in fact, his experiences which he shared for the purpose of
writing an article in a newspaper.
 The court held that Donoghue was not an author or even a joint author of
those articles.
 Indian Perspective
 In Najma Heptulla v. M/s Orient Longman Ltd. (AIR 1989 Del 63) , the Delhi
High Court addressed the issue of authorship of the book India Wins Freedom.
 The book recorded experiences of Maulana Abul Kalam Azad. Humayun Kabir,
a close associate of Azad, made notes.
 When sufficient material was collected for a chapter, Kabir prepared a draft
in English and gave it to Azad.
 Azad read each chapter and after that both of them went over the material
together.
 Azad used to make additions, alterations, amendments and omissions.
 Kabir’s job was only to record his feelings and experiences and he did not
interfere with Azad’s opinion and judgment.
 The court had to make a decision regarding the authorship of the book.
 Disagreeing with Donoghue verdict, that court observed that if the reasoning
in Donoghue’s case was correct, it would mean material on the basis of which
a literary book was written would be of no importance.
 The court concluded that “India Wins Freedom” was the product of the
active and close intellectual collaboration between and Azaad and Kabir in
pursuance of a preconcerted joint design.
 Such a work could neither be regarded as the sole creation of Azad nor as the
sole creation of Kabir, but was a “work of joint authorship”.
 This judgment is a pure embodiment of Section 2(z).
Partners as joint authors
 In Ramesh Sippy v. Shaan Ranjeet Uttamsingh (2013), the court stated that
where a partnership firm makes a film and takes various steps including its
funding, the financial contribution of one partner is not distinct from that of
the other.
 Therefore, the partners of such firm would be the joint authors and as such,
the owners of the copyright
Essential Ingredients of Joint Authorship

 In Institute of Inner Studies v. Charlotte Anderson (2014), the Delhi HC

stated that there were three ingredients to be established for the work to be
called a work of joint authorship:
1. Collaboration
2. Non-distinction of the contribution
3. Creative input
 Ownership of Copyright: Course of
Employment
 The author of a literary or dramatic work may not be the first owner of the
copyright in two circumstances:
1. Works of employees of proprietors of newspapers, magazines and similar
periodicals
2. Work of employees generally
 Employee’s work for Newspaper, etc.

 Section 17 – author of a work is the first owner of the copyright therein –

exception
 Works created under such contract of service or apprenticeship, for the
publication in a newspaper, magazine or similar periodical – such proprietor is
taken to be the first owner of copyright in the work
 This provision may not be applicable if any agreement to the contrary is
present
 Work made by employees generally

 In order to get the copyright vested in an employer:

1. The work must be made by his employee; and
2. The work must be made in the course of employment
Contract of Service & Contract for
Services

 According to Halsbury’s Laws of England, a contract of service is not

the same things as a contract for services
 The distinction being the same as that between an employee and an
independent contractor
 An employee is a person who is subject to the commands of his employer,
the degree of independence on the part of the person rendering services
and the place where service is rendered – all matters to be considered in
determining whether there is a contract of service
 Contract of Service & Contract for
Services: Element of Control
 Generally, there are not many difficulties in deciding whether the person is
an employer or an independent contractor but sometimes difficulties may
arise.
 Earlier, emphasis was placed on the amount of control of employer over
employee.
 In Simmons v. Heath Laundry Co. (1910), it was observed by Fletcher-
Moulton L.J.: “the greater the amount of direct control exercised over the
person rendering the services by the person contracting for them the
stronger the grounds for holding it to be a contract of service, similarly the
greater the degree of independence of such control the greater the
probability that the services rendered are of the nature of professional
services and that the contract is not one of service.”
 In University of London Press Ltd. v. University Tutorial Press Ltd. (1916),
the element of control was considered important in deciding whether or not the
authors of certain examination papers, who were not on the staff of the
University of London were employed under a contract of service. The court
answered in negative.
 It has been recognized that degree of control is not always so important,
particularly in the case of professional people who may be employed under
contracts of service.
 In Stephenson, Jordan and Harrison v. Macdonald and Evans (1952), it was
held by Lord Denning that under a contract of service a man is employed as a
part of the business, and his work is done as an integral part of the business;
whereas under a contract for services, his work, although done for the business,
is not integrated into it but is only accessory to it.
 The test was approved in Market Investigations Ltd. v. Minister of Social
Security (1969), where Cooke J. stated that the fundamental test to be applied
appeared to be whether the person who performs the services is performing
them in business on his own account. If yes, the contract is one for services, if
not, it is a contract of service.
 Commissioned Work
 It is done under contract for services.
 In Gee Pee Film Pvt. Ltd. v. Pratik Chowdhury (2002), on the basis of oral
agreement, the plaintiff engaged defendants 3 to 5 to compose Bengali non-film
lyrics and music. Defendant no. 1 had to sing the songs.
 Plaintiff published sound records that were based on commissioned work.
 Subsequently, defendants no. 1 and 2 released music cassettes containing eight
songs from the plaintiff’s cassettes.
 Plaintiff filed a suit for infringement mainly on two grounds: (1) Since
commissioned work fell under Section 17(b)* copyright was automatically
transferred to the plaintiff; (2) being the producer of the sound records, he was
entitled to copyright under Section 17 as the first owner.
 On the other hand, it was contended by the defendants that there was no
assignment of copyright and they were still the owners of the copyright in the
work they created.

*in the case of a photograph taken, or a painting or portrait drawn, or

an engraving or a cinematograph film made, for valuable consideration
at the instance of any person, such person shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein;
 Commissioned Work

 The Calcutta High Court while rejecting the argument of

the plaintiff, held that it was a clear case of contract for
services and not of contract of service.
 Section 17(b) of the Act specifies the only stances (as
specified in the previous slide) where an author,
although engaged under contract for service loses
copyright. In the present case, the defendants were not
engaged for any of the aforesaid jobs.
 In Diljeet Titus Advocate v. Alfred A. Adebare (2006),
the court observed that the work done by the defendants
for the benefit of the clients of the plaintiff would fall
within the definition of contract of service.
 Registration of Copyright (Chapter X)

 The Copyright Act as inspired by the Berne Convention provides

automatic protection to a work in which copyright subsists as
per Section 13.
 If you are the owner of a copyright, all the rights automatically
accrue to you irrespective of registration.
 In absence of a registration certificate which is a prima facie
proof of ownership, proving ownership may be difficult.
 Therefore, to ensure robust protection against infringement,
the owner can get his work registered under the Act under
Chapter X.
 An author is recommended to utilize © - the year of publication
and name of the owner to protect his original work. (Eg.
Copyright © 2021 Ankit Singh)
 Assignment of Copyright (Sections
18 and 19)

 Transfers the ownership of the from the assignor to the assignee. [an author
assigning his copyright in his novel to a publication house]
 Can be done wholly or partially.
 Can be done by the owner of an existing work or prospective owner of a future
work. (in case of future work, assignment only starts when the work comes into
existence)
 If the assignee of a future work dies before the work comes into existence his
legal representative becomes the assignee.
 Must be in writing and signed by the assignor - must specify the right assigned
and territorial limits of the assignment
 Amount of royalty and any other consideration payable to the author or his legal
heirs during must be specified.
 If any period is not specified - by default period of assignment is five years from
the date of assignment.
 If territorial extent is not specified - it shall be presumed to extend within India.
Scope of Assignment
 In Jogendranath Sen v. State (1994), the author of a book assigned the right
to publish the work by a written instrument to a person who got the work
published by his son.
 After one year, the author’s son instituted criminal proceedings against the
assignee and his son under Section 63, alleging conspiracy between the two.
 The trial magistrate framed charges stating that the agreement between the
author and the assignee did not authorize the latter to get the work published
through his son.
 The accused moved the Calcutta HC by criminal revision petition.
 Quashing the criminal proceedings, the court held that the assignor ceased to
be the owner of the copyright insofar as the right to publish was concerned.
 The assignee was to be treated as the owner of the exclusive right to publish.
 It was well within his rights to get the book published by anyone.
 The author thereafter continued to be the owner of the copyright in the work
only in respect of the rights not assigned.
 Licencing of Copyright
 Licencing of copyright is a type of assignment where the rights are not
transferred.
 Licencing merely means giving the permission to another person to use
the work without transferring ownership.
 It is just a granting of interest in a particular right attached to the
copyrighted work.
 Licence must be in writing but need not be signed.
 Under the Copyright Act, three kinds of licence are provided: (1)
voluntary (Section 30); (2) compulsory (Sections 31, 31A and 31B) and (3)
statutory (Sections 31C and 31D)
 Compulsory Licence: When any work is withheld from public; for the
benefits of disabled persons (application to Commercial Court)
 Statutory Licence: Cover versions of any musical work or sound
recording; broadcasting of already published work or sound recording
(according to the provisions of the Act)
 ASSIGNMENT V. LICENCE
Deshmukh and co. (publishers) Pvt. Ltd. v. Avinash Vishnu Khandekar
(2006)

ASSIGNMENT
Assignment transfers the title in
the copyright to the assignee
May be for the whole term of
copyright or any part thereof
General i.e. without limitations or
may be subject to limitations
LICENCE
Licence does not convey the
copyright but only grants a right
to do something, which in the
absence of such licence, would be
unlawful

Assignee may reassign Licence is personal and non-

transferable in nature
 ASSIGNMENT V. LICENCE
Deshmukh and co. (publishers) Pvt. Ltd. v. Avinash Vishnu Khandekar
(2006)

ASSIGNMENT LICENCE

Assignee can sue for infringement Licencee cannot sue in his own
of copyright without joining the name for infringement, since
assignor copyright belongs to the licensor
Moral Rights of an Author (Section 57)

 Paternity Right: An author has the right to claim authorship of the work.
 Right of Integrity: An author has the right to restrain or claim damages in
respect of any distortion, mutilation, modification or other act in relation to
his work if it hurts his honour or reputation.
 Moral rights of an author are independent.
 They can be claimed even if the author has assigned or licensed the copyright
in his work to someone else.
Term of Copyright (Sections 22 and 23)

 Term of a copyright in any literary, dramatic, musical or artistic work

published within the lifetime of the author - 60 years from the beginning
of the calendar year following the year in which the author dies.
 60 years from the beginning of the calendar year following the year in
which the work is PUBLISHED in the following categories:
a) Literary, dramatic, musical or artistic work published anonymously or
pseudonymously.
b) Posthumous work - work published after the author’s death
c) Cinematograph films
d) Sound recording
e) Government works
f) Work belonging to a public undertaking
g) Work belonging to international organizations
 Infringement of Copyright [Sections 51(a) and
51(b)]

 When any person - in absence of a licence given by the owner or the Registrar of
Copyrights or in contravention of the terms of a licence imposed by a competent
authority under this Act:-
1. does any act the exclusive right of which is with the owner of the copyright
2. permits for profit any place to be used for the communication of any
copyrighted work to the public - unless he was not aware and had no reasonable
ground of believing that such communication to the public would be an
infringement.
 When any person does the following in relation to infringing copies (pirated DVDs,
etc.)
1. makes for sale or hire, or sells or lets for hire. or by way of trade displays or
offers for sale or hire
2. distributes either for the purpose of trade or to such an extent as to affect
prejudicially the copyright owner
3. by way of trade exhibits in public
4. imports into India (applies to commercial quantity - does not apply when he
imports only one copy solely for domestic or private use)
Infringement of Copyright: Underpinning
Jurisprudence
 In R.G. Anand v. Delux Films (1978), the Supreme Court laid down
the following propositions:
1. No copyright in idea, themes, subject-matter. Plots or historical facts
– confined to the form, manner and arrangement and expression of
the idea
2. Surest and safest test to determine copyright violation – if the reader,
spectator or the viewer after having read or seen both the works is
clearly of the opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original.
3. Same theme treated and presented differently so as to make the
subsequent work a completely new one – no question of copyright
violation arises
4. As violation amounts to act of piracy – it must be proved by clear and
cogent evidence after applying the various tests laid down by the case
law.
 R.G. Anand Case: Similarities v.
Dissimilarities
 Where the same idea is being developed in a different manner, it is
manifest that the source being common, similarities are bound to
occur
 In such a case, the courts should determine whether or not the
similarities are on fundamental or substantial aspects of the mode of
expression adopted in the copyrighted work.
 If the defendant’s work is nothing but a literal imitation of the
copyrighted work with some variations here and there, it would
amount to copyright violation.
 In order to be actionable, the copy must be substantial and material
one which at once leads to the conclusion that the defendant is guilty
of an act of piracy.
 Where, apart of similarity appearing in the two works there are also
material and broad dissimilarities which negative the intention to copy
the original and the coincidence appearing in the two works are clearly
incidental – no copyright infringement takes place.
R.G. Anand Case: Play developed into a Film
 Where the question is of the violation of the copyright of a
stage play by a film producer or a director the task of the
plaintiff becomes more difficult to prove piracy.
 It is manifest that unlike a stage play a film has much
broader perspective, wider field and a bigger background
where the defendant can introduce a variety of elements,
colour and complexion which are different from the
expression of the plaintiff’s work.
 Even so if the viewer after seeing the film gets a totality of
impression that the film is by and large a copy of the
original play, violation of the copyright may be said to be
proved.
 Remedies and Penalties
 Civil Remedies: An author has the following remedies when his copyright is infringed:
1. Injunction (Section 55)
2. Damages (Section 55)
3. Accounts for profit (Section 55)
4. Recovery of possession of infringing copies (Section 58)
 Penalties: Any person who knowingly infringes or abets the infringement of copyright
shall be: (Section 63)
1. punishable with imprisonment from 6 months to 3 years; and
2. fine which shall be from INR 50000 to INR 2 Lakh
 Power of police (officer not below the rank of SI) to seize infringing copies. (Section
64)
 Any person who knowingly makes, or has in his possession any plate for the purpose of
making infringing copies of any copyrighted work - imprisonment up to two years and
fine (Section 65)
 Cognizance of offences: No court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence under this Act. (Section 70)
 Fair use/Fair dealing of Copyright (Section
52) - not amounting to infringement

 Private or personal use including research

 Criticism or review of any work
 Reporting of current events, affair or a lecture delivered in public
 Reproduction of any work for a judicial proceeding
 Reproduction of a work for the purpose of a classroom including questions/answers
in an examination
 Reading or recitation in public of reasonable extracts from a published literary or
dramatic work
 Performance of any literary, dramatic or musical work by an amateur club or
society in front of non-paying audience
 Storing of a work in any medium by electronic means by a non-commercial public
library if the library already possesses a non-digital copy of the work
 Reproduction for the purpose of research or private study, or with view to
publication, of an unpublished work kept in a library, museum or other institution
to which public has access (if the identity of the author of the work is known then
the same has to be done after sixty years from his death)
 Fair use/Fair dealing of Copyright
(Section 52) - not amounting to
infringement

 Reproduction or publication of :
1. any matter which has been published in any Official Gazette except an Act of a
Legislature
2. any Act of a Legislature subject to the condition that such Act is reproduced or
published together with any commentary thereon or any other original matter
(Bare Acts)
3. the report of any committee, commission, council unless the same is prohibited
by the Government
4. any judgment or order of a court, tribunal or other judicial authority unless the
same is prohibited by the court
 Inclusion in any cinematographic film of any artistic work which is permanently
situate in a public place to which public has access (a short movie on Bhopal and
its tourist sports)
 Performance of any literary, dramatic or musical work in the course of any bona
fide religious ceremony (including marriage procession i.e. Baraat or any other
social festivities associated with a marriage i.e. Sangeet night, Mehendi, etc.) or
an official ceremony held by the Central Government or the State Government or
any local authority
 JURISPRUDENTIAL TAKE ON FAIR
DEALING
 The terms “fair use” and “fair dealing” have nowhere been defined in the Copyright
Act, 1957 – on examination of case laws – an important test has been evolved – the
test to find out whether the use is likely to harm the potential market of the value of
the copyrighted work – making a single copy for private use may well be within the
ambit of fair use [Civic Chandran v. Ammini Amma (1996)]
 In Ashdown v. Telegraph Group Ltd. (2001), the court laid down the following test: (I)
whether the alleged fair dealing is in commercial competition with the owner’s
exploitation of work; (2) whether the work has already been published or otherwise
exposed to the public; and (3) the amount and importance of the work which has
been taken.
 In Blackwood and Sons Ltd. v. A.N. Parasuraman (1959), the court stated that two
points have been urged in connection with the meaning of the expression “fair” in
“fair dealing” (I) that in order to constitute unfairness there must be an intention to
compete and to derive profit from such competition and (2) that unless the motive of
the infringer were unfair in the sense of being improper or oblique in dealing would
be fair.
BROAD PRINCIPLES OF FAIR DEALING: DELHI
HC
[Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. (2011)]
 Enquiry ought to be made as to whether the impugned extract forms an
essential part (qualitative rather than quantitative) of the work –
particularly true in case of musical works where a few notes make all the
difference.
 The motive of the user shall play an important role in assessing as to
whether injunction ought to be granted.
 Commercial use of copyrighted work cannot simpliciter make it unfair.
 “Transformative Use” may be deemed in certain situations as fair use of
copyrighted work.
 Transformative uses take the original copyrighted work and transform its
appearance or nature to such a high degree that the use no longer
qualifies as infringing.
 in the case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). The band
had borrowed the opening musical tag and the words (but not the melody)
from the first line of the song "Pretty Woman" ("Oh, pretty woman,
walking down the street"). The rest of the lyrics and the music were
different.
 BROAD PRINCIPLES OF FAIR DEALING:
DELHI HC
[Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. (2011)]
 It is neither possible nor advisable to define the exact contours of fair dealing.
 It is a question of fact, degree, and overall impression carried by the court.
 In ascertaining whether extracts taken from copyrighted work have been put to fair use,
the extent and the length of the extracts may be relevant – long extracts followed by
short comments may in certain circumstances be unfair, while short extracts followed by
long comments may be fair
 The right to make fair use or to deal fairly with the copyrighted work includes the right
to criticize not only the style, but also the underlying doctrine or philosophy of the
work. In this regard, criticism could be both “strong” and “unbalanced”.
 In ascertaining as to what would constitute reportage of “current events” or would fall
within the ambit of “criticism” or “review”, courts ought to adopt a liberal approach.
 In discerning as to whether a person has made fair use, the standard employed ought to
be that of a “fair minded” and “honest person”. In case of musical works the test would
be that of a “lay hearer”.
 The current case wase decided in favour of the plaintiff (SCIL) and Hamar TV’s claim of
fair use was rejected and they were held responsible for infringement. Visit
https://spicyip.com/2010/06/fair-dealings-by-television-
networks.html#:~:text=(a)%20Facts%3A%20The%20plaintiff,and%20runs%20a%20series%20
of
 Broadcasting Right (Section 37) – Chapter VIII

 Every broadcasting organization has a broadcast reproduction right

which means the organization can repeat its original broadcasts. (A
live cricket match, live concert, live political debate, etc.)
 This right subsists until 25 years from the beginning of the calendar
year following the year in which broadcast was made.
 If anyone without any licence from the broadcast owner does any of
the following, he is deemed to have infringed the broadcast
reproduction right:
1. re-broadcast the broadcast;
2. cause the broadcast to be heard by a paying audience;
3. make any sound recording or visual recording of the broadcast;
4. make any reproduction of such recording; or
5. sell or give on commercial rental or offer for sale or rental such
recording
 Performer’s Right (Section 38) –
Chapter VIII
 Where any performer* appears or engages in any
performance, he enjoys performer’s right (exclusive and
moral)
 Such right subsists until fifty years from the beginning of the
calendar year following the year in which the performance
was made
* Section 2 (qq) - added to the Act in 1994 after TRIPS defines
“performer”: includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering a
lecture or any other person who makes a performance.
Note:- Crowd in a movie is not categorized as performer
 Exclusive Rights of Performer (Section 38A) -
to do or to authorize to be done – added in
2012

 To make a sound recording or a visual recording of the performance including:

1. reproduction of it in any material form including storing it
2. issuance of copies to the public not being the copies already in circulation
3. communication of it to the public
4. selling or giving it on commercial rental or offer the same
 To broadcast or communicate the performance to the public except where it is
already broadcast.
 Exception: Once a performer, by written agreement, consented to the
incorporation of his performance in a cinematograph film, he shall not, in the
absence of any contract to the contrary, object to the enjoyment by the producer
of the film of the performer’s right in the same film. [Section 38A(2)]
 Notwithstanding anything contained in Section 38A(2), the performer shall be
entitled for royalties in case of making of the performance for commercial use.
 Exceptions (Section 39)
 No broadcast reproduction right or performer’s right shall
be deemed to be infringed by –
1. The making of any sound recording or visual recording for
the private use of the person making such recording, or
solely for purposes of bona fide teaching or research;
2. The use, consistent with fair dealing, of excerpts of a
performance or of a broadcast in the reporting of current
events or for bona fide review, teaching or research; or
3. Such other acts, with any necessary adaptations and
modifications, which do not constitute infringement of
copyright under Section 52
 Performers in a Cricket Match

 The Delhi High Court in Star India Pvt. Ltd. v. Piyush Agarwal
(2014), stated that when a cricket match was played, there
were various dramatis personae in the performance.
 So far as the visual recording was concerned, the cricket
players were the performers who played out the match.
 The umpires were also an integral part of the live performance,
and they could also be considered as performers in the match.
 Apart from the players and umpires, the commentators who
gave commentary, whether for the television or radio or any
other medium of broadcast, were also performers.
 Thus, a cricket match very much fell within the definition of
“performance”.
 Moral Right of a Performer (Section
38B)

 Irrespective of any assignment or otherwise, a performer has the right:-

1. to claim to be identified as the performer of his performance
2. to restrain or claim damages in respect of any distortion, mutilation or
other modificiation of his performance that would be prejudicial to his
reputation
Exception: Film-editing to serve a better purpose does not count as distortion,
mutilation or modification within the meaning of this section.