Inefficacy of the Copyright Act of 1957 and its amendments

By Prerna

Index
1. Introduction
2. India’s position in International IP Index and recent developments
3. Loopholes in existing Copyright law and its amendment
4. Way ahead
5. Conclusion

Introduction
Copyright contributes as one of the most essential factors in the growth of the country as it
enriches our cultural heritage by protecting our masterpieces. Copyright is a part of
intellectual property that protects original works of research as soon as an researcher fixes the
work in a tangible form of expression.There are many other kinds of works that fall under the
purview of copyright law, such as drawings, pictures, illustrations, musical compositions,
sound recordings, computer programs, novels, poetry, blog entries, movies, architectural
creations, plays, and much more.
The need for copyright protection was released when the invention of printing took place.
Printing made literary works duplication possible by use of machines. Printing press was first
invented in 1436 in Germany. In the 15th century the spree of printing continued to gain
popularity without any restriction in Europe. Even the King of Europe had permitted the
foreigners to import the text from other countries and print them there. This is how the
maximum book trade comes under Europe. It took almost 2 centuries to realise the need for
protection of copyright. Therefore, Licensing act in England was passed in 1662. This act
came with restrictions which prohibited printing of the books which had not taken license and
mandated the registration with Stationers’ Company.1

Copyright Laws are enacted by various nations in order to assure the authors, composers,
artists and other creative people that the government is there to protect their original work.
The labour and the capital put in by them will be paid or rewarded as the government is there
for its protection. This is done by giving them exclusive right for their work for a specified
period of time which includes the right to reproduce their work as per the will of the
copyright owner like the right to make cinematographic films on their work etc.

For the protection of certain "work" in India, Copyright Act was enacted in 1957. In the said
act the work refers to a literary, dramatic, musical or artistic work; a cinematograph film; and
a sound recording. The sole right of the work is given to the copyright owner so that they can
enjoy the benefits of the created work for specific period that is sixty years in India after the
death of the author. During that period others cannot use it for unjust enrichment. These sole
right of owners for their original work are also known as the economic right subject to the
provisions laid down in Copyright Act.

1
V K Ahuja, Law of Copyright and Neighbouring Rights, Pageg 1 & 2, 2015
There are few artistic works though protected by copyright but need to be in public domain
for the interest of the society at large. Therefore, Copyright act provides with the provision
of free use available in public domain. The exclusive right of the copyright owner can be
taken away to some extent for the interest of the society at large. Copyright serves us with
twofold purpose by giving the exclusive right to the owner and then providing incentives for
the creation of more work.
Technological advancement like video recording, reprography, satellite broadcasting and the
recent internet lead to amendment of the existing law from time to time. The Copyright Act
has evolved from protecting literary and artistic work to the subject of public interest in the
digital world. Therefore hitherto total 6 amendments to the Copyright Act took place with the
most recent in 2012.
The infringement of the right of copyright owner can be punished as per the provision
given in the Copyright Act, 1957. Section 632 provides that whoever invades the right of
copyright owner shall be punished with minimum six months which may extend to three
years along with fine which shall not be less than fifty thousand rupees but may extend to two
lakhs.Similarly Section 63-A deals with the punishment of subsequent conviction.

India’s position in International IP Index and recent developments

India ranked 42 among 55 nations in the International IP Index of 2023 released by the U.S
Chamber of Commerce. Patrick Kilbride who is vice president of the US Chamber of
Commerce said in its annual report of 2023 that India is at a position to become a leader for
emerging markets as India's size and economic impact is growing on a large scale throughout
the world through its IP-driven innovation.3

There were 50 indicators analysed and India scored 19.32 points out of 50. In category 2
Copyrights and Related rights with their limitations had been given which scored 2.72 points
based on 7 indicators. In this category the worst scoring area was limitations and exceptions
which got 0 points. Indian Copyright Act provides with certain exceptions which authorizes
the use of copyrighted material without owner's permission in Section 52. The exception
provided by the said section of the Indian Copyright was so inordinate that it vitiated the
motive of the Copyright Act. Moreover it goes against the international conventions like the
Berne Convention in providing exceptions and limitations. Though the U.S too provides with
the exception but the horizon is very limited which is based on the four factor test.

India got 1 point in the Injunction type relief indicator. In this indicator India had surpassed
the score obtained by the U.S that is 0.75. Indian copyright act provides with civil remedies
for Copyright infringement under section 55. Injunction is a judicial process by which the
court restricts the person who is invading the exclusive right given to the owner or commands
that person to restore the matter to its existing position. Hence, the score obtained by India

2
Copyright Act, 1957, § 63
3
US Chamber of Commerce, 2023 International IP Index, https://www.uschamber.com, (21 Feb 2023),
https://www.uschamber.com/intellectual-property/2023-international-ip-index
clearly shows that the judicial proceedings for the infringement of Copyright is very effective
in India in comparison to many other developed countries.

India got 0.47 points in terms of protection. In India copyright lasts for 60 years which is
based on two categories, for original literary, dramatic, musical and artistic work the 60 years
count after the death of the author whereas 60 years whereas for cinematography films, sound
recordings, photographs, anonymous work and works of government and international
organisations is counted from date of publication. The U.S Copyright act provides with the
protection of original work for the term of 70 years after the death of the author.

Exclusive right is the right enjoyed by the owner of the Copyright for the original work
created by them. This right not only allows the owner of the Copyright to prevent infringing
materials from being distributed. India scored quite well in exclusive rights in the
International IP Index.

India got 0.25 individually in three different indicators in category 2 which are Cooperative
action against online piracy, Technological Protection Measures (TPM) and Text and Data
Mining (TDM), and Government use of licensed software.

The graph above shows India's position in the International IP Index in the last 5 years. In
2019 India’s rank was 36 out of 50 countries, it improved to almost 3.5% in 2020 by standing
at 40th position out of 53 countries4. The country had witnessed a state of stagnation in 2021

4
US Chamber of Commerce, 2019 International IP Index, https://www.uschamber.com, (07 Feb 2019),
https://www.uschamber.com/international/us-chamber-releases-2019-international-ip-index.
by securing 40th position out of 53 countries5. The condition improved in 2022 almost 3.3%
by securing 43rd position out of 55 countries, but this growth of success was short lived6.
Again in the recent 11th edition of 2023 India again came back to 42nd position. Now India
needs to work on the weakness highlighted by International IP Index 2023 in order to
improve its rank in the next 12th edition report of 2024. It needs to invest as much as it
require in those areas too where the report of 2023 commended7.

According to the graph shown above India straggle to compete with the Asia Average or
Avarage of top 10 economies as per International IP Index, 2023. The report highlighted a
few areas where India had taken steps to make IP laws effective. Which includes the
continued strong effort put by India by issuing injunction for copyright piracy in a dynamic
manner, and encouragement of many programs like Patent Prosecution Highway (PPH),by
having generous Research and Development and Intellectual Property- based tax incentives,
it also acted as a global leader for creation and use of Intellectual Property assets for SMEs
by targeted administrative incentives8.

5
US Chamber of Commerce, 2021 International IP Index, https://www.uschamber.com, (06 May 2021),
https://www.uschamber.com/intellectual-property/2021-international-ip-index.
6
US Chamber of Commerce, 2022 International IP Index, https://www.uschamber.com, (23 Feb 2022),
https://www.uschamber.com/intellectual-property/2022-international-ip-index.
7
US Chamber of Commerce, 2023 International IP Index, https://www.uschamber.com, (21 Feb 2023),
https://www.uschamber.com/intellectual-property/2023-international-ip-index.
8
US Chamber of Commerce, 2023 International IP Index, https://www.uschamber.com, (21 Feb 2023),
https://www.uschamber.com/intellectual-property/2023-international-ip-index.
The report highlighted a few areas of weakness where India needs to work to make its
Intellectual Property Laws effective. The report said that the dissolution of the Intellectual
Property Appellate Board was not a robust idea for India as the judiciary is not well equipped
with the resources due to which the pendency of cases in the courts are increasing day by day.
The strict registration requirements along with ambiguous licensing rules as stated by
Copyright Act 1957 has exacerbated the IP regime. There are almost negligible laws for the
protection of biopharmaceutical IP rights. The patentability requirements of India are beyond
the standard which was set internationally.

The burden of intermediary in the Copyright Act is also very limited. As per the laws
intermediary are not required to take action against the illicit or infringing activity. As it was
stated by the Supreme Court of India in the case of Shreya Singhal v. Union of India9 that it is
not a responsibility of the intermediary to make a judgement whether the nature of the
content is infringing or not, rather judiciary are obliged to do so.

With the increase in awareness of IP and the increasing economic capacities of the countries
at large their copyright industries are flourishing day by day to almost double digit (in%)
contributing to the nation’s GDP, on the other hand India being in the list of top 5 global
economies experiencing stagnant position since many years. India has not incentivized its IP
industry yet to its full potential. The copyright intensive industries of India are lagging behind
to the greater extent when compared to other economies. India is having a developed
intensive market which have the capacity to increase the output. India needs to work on its
weakness for improving the IP sector as well as its rank in 2024 index.

Loopholes in existing Copyright Law and its amendments

Intellectual Property Rights plays a pivotal role in social, economic and cultural development
of a country. Copyright being its essential element encourages the creation of work by
protecting the rights of the copyright owner. Technological development has increased and
the dependence of people on the internet manifold. Nowadays everything is available to them
at their fingertips. However with the increasing user of the internet, grappling hard with their
rights as digital platforms are prone to infringement of their IP Rights. The piracy of author’s
content is also increasing with the increasing use of the internet. The Internet has become a
threat to the privilege given to Copyright owners as dissemination of author's work is quite
easy and simple and it is difficult to find the original source of the content on the internet.
The condition of the artistic work being reproduced in an unauthorised way has been
exacerbated due to the ambiguity in laws which deal with copyright.

The Indian Copyright Act 1957, is the main statute to rule over the right of the authors of
artistic work, since its enactment it had been amended 6 times but still it had too many
loopholes. Section 13 of Copyright acts provides with the list of works in which copyright

9
Shreya Singhal v. Union of India 2015, SCC Online SC 248
subsists like original literary, and other masterpieces and how they are protected by Copyright
Act. But the major concern is that are they really protected on digital platforms also?

Though the Copyright Act, provides that without the permission of the copyright owner no
one has the right to broadcast or announce the protected property created by original thought
in the public domain. If any person does so or infringe the right of the copyright owner they
will be punished for the same as guaranteed by the Copyright Act under Section 14. But in
cyberspace it is difficult and sometimes impossible to find out the source because of the way
the copyright infringement takes place.

Even after the adaptation of the Copyright Act in 2012 which primarily focuses on the
technological aspect of copyright infringement, the administrative part dealing with section
65A and 65B of Indian Copyright (Amendment) Act, 2012 is ineffective.

The reason behind its ineffectiveness are:

1. Jurisdictional issues: On the digital platforms it is difficult to find whose laws would apply
to the offender. Moreover the Copyright of every nation is not uniform.

2. Expansion of private use exception- The horizon of private use exception is greater in India
in comparison to other countries. Even the copyrighted content is prone to be duplicated
because of the ambiguity of the purview of private use exceptions.

Indian Copyright Act provides three kinds of licensing process: voluntary, compulsory and
statutory licensing. In normal situations the interested party negotiates with the copyright
owner to allow them to use their work with mutual consent, this is voluntary licensing. But in
a situation where negotiation is not possible and copyrighted content is inaccessible, the
interested party seeks for Compulsory and statutory licensing. In the cases where contact with
copyright owner is impossible because of various reasons like anonymity of owner or
inability of the owner to give consent, in such situation the law provided the individual with
the facility to approach Intellectual Property Appellate Board (IPAB) to get licence in such
situation with some prescribed fee.

In the year 2021 the Intellectual Property Appellate Board was abolished by the President10.
Now the whole responsibility has been transferred to Commercial Court and High Court.
Dissolution of IPAB had led to the rise of burden on the Commercial Bench of the High
Court where already a lot of other cases were pending. Now the pending cases related to the
copyright will also pile up like other cases in high court. Moreover few provisions of TRIPS
agreement are binding on India as India has complied with it, it includes to have a seperate
tribunal to deal with the cases related to Intellectual Property Rights. Scrapping of the

10
Vibhuti Kaushik, Abolishment Of IPAB: Changes To The IP Regime
Mondaq, 28 May
2021,https://www.mondaq.com/india/trademark/1074448/abolishment-of-ipab-changes-to-the-ip-regim
e
Intellectual Property Appellate Tribunal (IPAB) may negatively affect the Indian relation with
other countries.

Copyright societies are authorized to grant license to any work originally created by the
owners or authors. Copyright (Amendment) Act, 1994 mandated that only copyright societies
can grant copyright licence as per Section 33. Later on the act was amended again in 2012
which added section 33(3A) which necessitates that the copyright society which grants
copyright license needs to register itself again within a 12 months period right after the
enforcement of the said amendment. Moreover the Copyright act of Section 18 states that the
copyright owner may assign to any person the copyright for any period as it deemed fit by the
owner. As per Section 18 copyright owner can give his copyright to a production house and at
the same time it can give it to any person. In this situation the production house would suffer
huge loss because their idea was already available in public domain by that person. In this
case copyright society is not needed. The copyright in itself is ambiguous as to whether
Section 33 would prevail over Section 33 or not. Due to this ambiguity the courts find it
difficult to deal with the cases when it comes to licensing rights of the work. In the
aforementioned case in order to get rid of the loss it becomes mandatory for the production
house to engage a third party for collecting a public performance licence as provided by the
Copyright Act of Section 18.

The Copyright (Amendment) Act 2012 had the chance to remove this ambiguity but it
exacerbated the problem by adding sub section (1) to Section 33. After the amendment in
2012 the copyright societies were kept in an ambiguous position for granting copyright
licence. This ambiguity has not been resolved yet. India needs to amend its Copyright Act
again to remove the loopholes like this.

In 1886 "Berne Convention" was adopted to effectively and efficiently protect the liberty of
copyright owners in their art. Later on it was revised several times to be in conformity with
contemporary needs.
The convention is based on the three main principles:
1. National treatment: It is a principle which states that if a work is created in one member
country of the Berne Convention must get the equal treatment in other countries as they used
to do with their own nationals.
2. Automatic protection- It is a principle which states that the protection to copyright owners
granted automatically does not require any registration process for its protection.
3. Independence of protection- It is a principle which express that the protection, enjoyment
and exercise of rights shall be independent irrespective of the extant of protection provided
by the country of origin. Apart from these principles, the Convention provides several
provisions which deal with the minimum standard a member State can give through its
national laws.11 Being the part and signatory to the Berne Convention India acted inordinately
as per international standard in providing exceptions to the copyright.

11
V K Ahuja, Law of Copyright and Neighbouring Rights, 2015
The expansion of the private use exception to “private and personal” use has shunned in
Article 9(2) of the Berne Convention.
Intellectual property (IP) territorial nature and Intellectual Property needs for the growth of
the world economy are still in conflict, and the correction in the traditional notion restricts its
territorial jurisdiction. These territorial limitations affect globalisation in the particular
country due to its class between its requirements of a global economy and the territorial
nature of IP rights of IP rights. India has seen a drastic change of growth in the last 10 years
in terms of awareness of IP laws as well as limitation of incentives in IP for the foreign
countries who try to enter the Indian market for providing the fierce competition.

Way Ahead

Indian creative owners have enjoyed exclusive rights for their works since 1957.  But the exclusive
rights given to them are being hampered in some or the other way because of the increasing use of the
internet. Though the Copyright Act was made specifically to protect the rights of the author or owner
of the original content, the act failed in many ways to safeguard the rights of the owners from
infringement. The existing law is not able to keep pace with the changing environment.

There is a principle of "safe harbour" given in section 79 of Information and Technology Act, 200012
which acts as a shield for the Intermediary. Under this principle Intermediaries are not liable for
copyright violations if they have followed due diligence. Similar provisions are given under section
52 (1) (c) of Copyright Act13, which states that intermediaries are exempted for the " transient storage
" unless it is established that they are well aware of it and have a valid ground to believe that
copyright infringement had taken place. As the economy grows, literacy rate increases and people
become equipped with technological devices, over 900 people in India are using the Internet today.
Hence it is mandatory to have stringent laws for the digital world as it is available in the physical
world. 

Though IT Act amendment in 2021 provided with Intermediary liability which imposed a
responsibility on Intermediaries to take precautionary measures to prevent users from uploading such
infringing content, the amendment failed to establish the ramifications when Intermediaries failed to
comply with the rule. Hence there is an urgent need to amend the Information and Technology Act to
make them conform with the increasing safety of online users safety. Accordingly the Copyright Act
should also be amended, so that the IT Act and Copyright Act get aligned.

With the growing role of Artificial Intelligence by making computers think and mimic like human
beings, machine learning has spread its prevalence all over the world. Initially it was created to solve
complex problems through its machine learning but now it is outpacing the works done by human
beings. It is capable of solving those data also which would have been impossible to solve by a human
being. By thoroughly analysing its work we can deduce that Artificial Intelligence creates its own
work.

Section 2 of Copyright Act 1957 deals with the definition of work. In recent times we have seen a lot
of AI generated works come into picture, the work by Artificial Intelligence have started getting
recognition. Though most of the works are done or created by human intervention, the trust of news
organisations and music producers on AI gives it another vitiate all negative sides of AI.

12
Information Technology Act, 2000 § 79
13
Copyright Act, 1957 § 52 (1) (c)
As of now the Copyright Act provides protection to humans only, they do not consider AI as human
which is eligible to get Copyright protection. The laws need to be made for the works done by AI
without human intervention.

Despite numerous efforts made to strengthen the enforcement of Intellectual Property Rights (IPR),
infringement and counterfeiting remains the major problem which act as hindrance for growth of IP
sector in India. There could be many reasons like enforcement agencies don't have sufficient resources
and experts to tackle these problems, which eventually leads to its inaction. 

Though the literacy rate of India is increasing day by day, the individuals still lack the basic
understanding of IPR. Due to this most of the people are unaware of  the infringement of their IP
rights. Hence lack of IP awareness makes the enforcement of these rights difficult and challenging. In
order to reduce the aforementioned problems India needs to simplify its regulations by establishing
proper set up to keep check on the work of the enforcement agencies and the ambiguity related to
getting Copyright licence should also be removed as it is brought in by 2012 amendment to Indian
Copyright Act, 1957. Moreover, transparency should increase so that the trust of the people does not
get sacrificed. 

Even though copyright is thought to not be territorially limited, physical boundaries nonetheless
govern its use. For instance, if a user creates a payments profile and then moves to a new country and
wants to change the Google Play Country associated with their account, they must wait 12 months
before making the change. They may also lose access to select books, movies, TV series, games, and
applications when they move to a new country because they won't be able to utilise the Google Play
balance they had there. This demonstrates how territorial limitations on copyright content are
governed and how this affects consumer happiness. In addition to this, it is overloaded by the myriad
contractual restrictions imposed on it during the licencing or assignment of the content's copyright. In
spite of the Berne Convention's prohibition against it, this makes copyright subject to territorial
restriction. This constrains the use of copyright in order to maintain the separation of economic
jurisdictions and maximum profitability. For instance, if a broadcasting company in India, XYZ,
licences its copyright in a cinematographic film to a broadcasting company in the USA, ATC, it would
be profitable for XYZ to limit ATC's broadcasting rights over the film to just the USA, preventing
ATC from airing the movie in India or any other country where ATC could further licence the rights.

The Copyright Intensive Industries (CII) in India can get an immense boost in their multiple economic
profitability scope, the most pertinent of them all is through licensing. This can help in garnering
long-term and consistent royalties which will prove to be a great service in expanding and supporting
ventures. For instance Apple has a copyright on all of the packaging and labels for its products to
protect them from infringement and to aid in the identification process by giving the products a
specific look and feel.  This also extends to the software codes that are used in operating systems.
They too can be licensed to other mobile or laptop-making companies for creating a base operating
system for their products. For example - Samsung licences its TV operating system – Tizen OS to
many other TV makers. In early 2021 LG also set up a licensing platform to offer its webOS operating
system to other manufacturers. This helps the MNC as well as the people involved in the creation
process earn a continuous flow of profit in the form of royalties.14

The provision of fair dealing tells that for a deal to be 'fair’ the aims of a contract must fit into the
statutorily defined categories of private use, study, criticism, and review in order for it to be
considered "fair."

14
Saloni G, Critical Analysis of the Fair Dealing Provision under India’s Copyright Law,
www.legalserviceindia.com,
https://www.legalserviceindia.com/legal/article-4831-critical-analysis-of-the-fair-dealing-provision-as-u
nder-india-s-copyright-law.html.
Although the term "fair dealing" is not explicitly defined in the Copyright Act, it is a component of
the equity doctrine and justifies the unauthorised use of copyright based on the facts and
circumstances alone. It also distinguishes between a true, legal fair use of a work and a malicious
blatant replica of the work. To qualify as an exception to fair dealing, India must establish a general
guideline for how much work can be done without the creator's consent. The court's discretion will be
used to decide this case, but there will be a set of rules that it must follow in making its decision, one
of which is that the public interest must be given top priority.

India, like the UK, has a highly tight and constrained view of the exception. This is due to the fact that
fair dealing cases are resolved in India based on court decisions, and as a result, the courts tend to
limit their inquiry to the extensive list of behaviours that fall within the purview of fair dealing. 'Fair
use' is in contrast to this.India needs to make provisions for monitoring and registration of the work
automatically as it is there in WIPO Copyright Treaty (WCT) and WIPO Performances and
Phonograms Treaty (WPPT). WCT and WPPT obligates the legislations of its member states to
provide adequate and effective remedies for those who remove or alter the electronic rights
management information without permission or make the copies of performances of phonograms
available to the public without authority. In order to avoid copyright infringement, whenever the work
is requested or transmitted on the internet, there should be a provision which ensures that the work is
done by the authorised person only. It protects the remuneration of the rightful owners of the
copyright without any deviation or distortion by ensuring that the payment is made to the appropriate
owner15. As India is not a party to the following treaty, its responsibility to make legislation increases
manifold in terms of the electronic rights management information as there is no parent organ to look
into matters like this. 

Though various technological devices like encryption and watermarking are there to protect the
interest of the copyright owner, it is evident that these devices have been proved ineffective when it
comes to piracy.

There is a need to encourage innovation by offering various tax incentives and funding should be
provided for research and development and collaboration between industry, academia and government
should also be promoted. Many states have realised the need to modernise their IT laws to be in
conformity with the digital era. Among them the U.S is the leading one which enacted the Musical
Works Modernization Act in 2018 with the aim to modernise the copyright issues related to music and
audio recordings. In 2019 also, the U.S passed the Copyright Alternatives in Small-Claims
Enforcement Act. It was enacted to protect copyright claims of small value works. Similarly other
nations are also working on similar provisions. Hence India should look in this direction to make its
copyright law effective and in conformity with modern needs. 

As the registration of copyright is very essential for its effective working, the process to get this
registration done should be made easy by the required legislation. Separate boards like IPAB
(Intellectual Property Appellate Tribunal) should be constituted to reduce the pendency of cases in the
courts.  The role and position of copyright societies should be made clear to them.

Conclusion

India being in the list of top 5 economies has not yet utilised its full potential in the IP sector.
India is having a fairly rigid approach in the IP sector as it is not concerned to keep pace with
the advancement of technology and the needs of society. It is working on the restrictive
approach which defeats the very motive of having IP laws. There is an urgent need to bring

15
V K Ahuja, Law of Copyright and Neighbouring Rights, Pageg 283 & 284, 2015
an amendment to the Copyright Act of India to deal with the problems arising after
2012.There are several areas in IP laws where it requires immediate attention by IP
authorities so that they can provide policies for the growth of the nation. Indian GDP is
increasing significantly which ultimately generates profits and with these profits the IP
industry has sheer potential to overtake other developed nations by its IP driven innovations.
The territorial nature of copyright should be in the conformity of the new era filled with
opportunities to enjoy the exclusive rights given to the owners. Despite numerous efforts
made to strengthen the enforcement of Intellectual Property Rights (IPR), infringement and
counterfeiting remains the major problem which act as hindrance for growth of IP sector in
India. There could be many reasons like enforcement agencies don't have sufficient resources
and experts to tackle these problems, which eventually leads to its inaction. Though the
literacy rate of India is increasing day by day, the individuals still lack the basic
understanding of IPR. Due to this most of the people are unaware of the infringement of their
IP rights. Hence lack of IP awareness makes the enforcement of these rights difficult and
challenging