A COMPARATIVE ANALYSIS OF OWNERSHIP OF COPYRIGHT

UNDER US, UK & INDIA

Authors:
1Mutaman Amir Ahmed: Student, B.A.LL.B (Hons), Alliance school of law, Alliance
University, Bangalore, Karnataka, India.
E-mail id: mutaman14@gmail.com

2K. Pramod Kumar Reddy: Student, B.A.LL.B (Hons), Alliance school of law, Alliance
University, Bangalore, Karnataka, India.
E-mail id: kaapireddypramod@gmail.com

ABSTRACT:
The meaning of copyright is to have sole right to produce or reproduce the whole work or any
part of that work. Thereof, if any person produce or reproduce that whole work or part of the
work and the work has the copyright for another person then the copyright in the work is
deemed infringed. The sole right to produce the work is conferred to the owner of the
copyright. To keep pace with the new technological developments, the Indian Copyright Act,
1957 was amended in 1983 & 1984. The wave of liberalisation of Indian economy was,
indeed, a positive and major step in the direction of free-market and competition. But out-
dated copyright law was a major hurdle in integrating India with the international business
community. The United States, in fact, did keep India as a black listed trade partner under the
notoriously called Super 301 and asked India to make its Patent, Copyright and Trademark
laws more effective and at par with International Standards. It was at this stage that
Copyright (Second Amendment) Bill, 1992 was introduced in the Parliament. It is, indeed,
heartening to note that the said Bill was finally passed and assented to in 1994. The present
work proposed to undertake a comparative study of Indian copyright law with that of
copyright laws of United Kingdom and United States. It was thought proper to study English
Copyright law not only because Indian law on the subject has heavily borrowed from the
former but also due to India's historical links with Great Britain. The choice of United States
was again made for two reasons, first, the United States Copyright law has also for historical
reasons been influenced by the British Common law and secondly, as in the early years of
Independence from Britain, United States opted for national needs rather than the copyright

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protection, how far India can benefit from the United States experiences when in the changed
global scenario, it is the United States itself which threatened India to update its copyright
regime. The study, thus, wishes to test the hypothesis that Indian Copyright law is highly
inadequate as compared to Copyright laws of United Kingdom and United States even after
the latest amendment. As to the ‘subject-matter of copyright’, the study reveals that there is
substantial similarity in the laws of the three countries studied here. In these three countries,
there is a general agreement that the quality or merit of a work are matters of taste and do not
enter into the question of what is a work. Nor is there a prescribed degree of originality,
ability or amount of skill and knowledge necessary to create the work, or a measure of
resources used to produce it. Unlike for a patent, where novelty is essential, there is no such
requirement for copyright.

Keywords: Copyright Law, Technology, Developments, Ownership of Copyright.

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 INTRODUCTION:

Copyright is a form of intellectual property protection granted under Indian law to the
creators of original works of authorship such as literary works (including computer programs,
tables and compilations including computer databases which may be expressed in words,
codes, schemes or in any other form), dramatic, musical and artistic works, cinematographic
films and sound recordings. Copyright protection is conferred on literary works, dramatic
works, musical works, artistic works, cinematograph films and sound recording. For
example, books, computer programs recording, are protected under the Act as literary works.
Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of
Section 14 of the Act.

These rights can be exercised only by the owner of copyright or by any other person who is
duly licensed in this regard by the owner of copyright. These rights include the right of
adaptation, right of reproduction, right of publication, right to make translations,
communication to public etc. In a comparative history of Copyright in India Copyright law
entered India in 1847 through an enactment during the East India Companies regime.
According to the 1847 enactment, the term of copyright was for the lifetime of the author
plus seven years post-mortem. Then the Indian legislature enacted a new Copyright Act
which merely extended most portions of the United Kingdom.

LITERATURE REVIEW:

Mc. John Stephen M, Northern Journal of Technology and Intellectual Property, 9 (4) (2011)
312-324; Discusses notable intellectual property decision in 2010 in the United States.
Viewed across doctrinal lines, some interesting threads emerge. The scope of protection was
at issue in each area, such as whether human genes and business methods are patentable,
whether a product idea may be a trade secret, and where the constitutional limits on copyright
limits on copyright legislation. Ruse-Khan Henning Grosse, American University
International Law Reviews, spring 2011; emphasize the importance of strong IP enforcement
standards for international trade in IP protected goods. The controversy over Trans-shipments
of generic drugs from India to various developing countries seized while in transit through
ports of EU member states demonstrates this potential. Pereira Alexander L D, Computer
Law & Security Review, 27 (2) (2011) 175-179;Competition law is considered that

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requirements of competition laws shape IP regulations, but the internal limit of protection
therein identified are not enough to safeguard concerns of competition law. European Court
held that, in exceptional circumstances, IP holders with market dominant position can be
compelled to grant licenses of IP protected goods, such as copyrighted information and
software. In Tata Consultancy Services v. State of Andhra Pradesh, the Supreme Court
considered computer software as ‘goods’ and stated that notwithstanding the fact that
computer software is intellectual property, whether it is converted in diskettes, floppy,
magnetic tapes or CD ROMs, whether canned (shrink-wrapped) or un-canned (customised),
whether it comes as part of the computer or independently, whether it is branded or
unbranded, tangible or intangible; is a commodity capable of being transmitted, transferred,
delivered, stored or processed, etc., and therefore, as a ‘good’ liable to sales tax.

RESEARCH QUESTIONS:
1. How Indian copyright law are not up to date till the present century when it has its roots
from the UK’s copyright law which has the highest standards of copyright laws than off the
USA’s?
2. What are the areas where Indian copyright law lacks in and why is it not suitable on the
international grounds according to USA?

RESEARCH PROBLEM:
The problem behind in this research paper is that our Indian copyrights law is way back
connected to the British Copyright law and Unites States is not connected to British copyright
law. The oldest of all copyright laws in the world is the UK’s and is the UK’s copyright laws
are considered as one of the best copyright laws, even after that view is been seen by USA,
why is India placed in black list by saying the law are not up to date.

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 RESEARCH HYPOTHESIS:
1. Copyright laws for software gives better protection in U.S.A. as compared to India.
2. Copyright laws in India play a very important role in India.
3. There exist major loopholes in protection of in Copyright laws in India. Hence,
amendments are required.
4. Legal framework provides better protection for copyright laws in India. Hence, barriers
restricting it should be removed.

RESEARCH OBJECTIVES:
1. To evaluate copyright laws for software protection in India and U.S.A
2. To emphasize the importance of copyright laws for software in India.
3. To find out loopholes in copyright laws for software in India.
4. To suggest measures for amendments in copyright laws for software India.
5. To find what are the barriers for India that restricts in providing better protection in India.
6. To give suggestions for the better copyright laws for protection of software in India .

METHODOLOGY:
The research method used in this research is Doctrinal Research Method.
In this research paper secondary and primary sources were used. For example, articles,
journals and books.

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 DEVELOPMENTAL HISTORY OF COPYRIGHT LAW 1 INDIA, UK AND USA:

The origin of copyright law was rooted from way back since the invention of the printer
by Johannes Gutenberg in Germany around the year in 1400. The copyrights were
implemented by the king of England, King Richard III when the printer was first
introduced in England in the year 1483. During this same year the Monarch of England
lifted the ban on importing books and literatures from other countries. Finally after the
ban being lifted the authors around the Europe sent their books for printing to England,
the authors started to enjoy the Royal license. Later in the in the 14 th century the in the
year 1516 the stationer’s guild was formed into a company.

The member in this company only had the solo rights on reprinting and publishing each-
others works of the members within the company, they had this special rights between
themselves (Stationer guild is formed by authors from all across the European
continent.). In the following century i.e. in the year 1529 King Henry VII made printing
business a monopoly to the crown. It was at this time the stationer guild came together to
protect their rights of publishing and printing of their books, literatures and manuscripts.
As they protested for their rights in the following decade in the year 1533 King Henry
VII banned the import of the works of the stationer company into England for the growth
of publishers and printers in England. In the year of 1557 the stationer company received
the Royal charter and they grant them with their privilege of regulating the book trade,
but to have these they have to fulfil the three important factors, they are:
I. Protect the trade quality.
II. Minimize unethical and unprofessional practices.
III. Limited competition.
In the year 1661 the Licensing Act came into light for the first time the rights of the
stationer company was later referred as the copyrights, but the members of the company
didn’t have the rights as the owners of the works they published, later the right was given
back to them as a commercial deal. In the year 1662 this act was amended giving the
company the right to take action against the infringement of their rights, the company
also had the right of search seizure of the unlicensed works in the market, this was the
first time ever done to keep a check on the piracy. Eventually the Act didn’t survive

1'A Brief History of Copyright' (Iprightsoffice.org, 2020) <http://www.iprightsoffice.org/copyright_history/>

accessed 1 November 2020.

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 when the time passed by with the weakening of the system. Later the ban on unlicensed
printing was lifted due to which a lot of independent printers and publishers into the
market. The act failed to find the difference between mechanical and intellectual piracy.
Hence, the act was repealed in the year 1681.

In the following century in the year 1710 on 10 th of April the Statute of Anne2 came into
enforcement for the first time. This was known as the world’s first copyright law. This
act had two purposes:
I. To promote learning for all king of age people.
II. The author was given protection against piracy.
The main rules of the act are:
1. If a book is not printed and published by the author then the rights of the book
remains with the author for 14 years and if the author is still alive after the given 14
years the additional 14 years will be extended.
2. The infringer should forfeit the book which he infringed and the infringer is bound to
pay half the amount to the crown and the remaining half to the plaintiff.
3. Before publishing of the book the book should be registered in the Register Book of
the stationer’s company. Until then any book shall not bought or it is considered as
infringement.

The copyright Act, 1911:

Before when this act was introduced in England the arts like music, photography, etc.
were protected under the Engraving Copyright Act, 1734 and by the other statute called
Fine Arts Copyright Act, 1862 and the literary related works were protected under
Statute of Anne. But in the year 1911 the all the statutes were merged into one Act called
the Copyright Act, 1911. The main key features of this act:
1. Term of copyright extended to life and 50 years.
2. No need to receive protection under the act for prior registry in stationer’s registry
book.
3. Unpublished work can also be protected.
4. Summary remedies in the suits of infringement.
5. The act to include all forms of arts like literature, painting, music, etc.

2'Statute of Anne | Great Britain [1710]' (Encyclopaedia Britannica, 2017)

<https://www.britannica.com/topic/Statute-of-Anne> accessed 1 November 2020.

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Then the final copyright act was passed in the year 1988 called as the Copyright, Designs and
Patents Act, 1988. The different kinds of works that are protected under the Act are: Literary,
Dramatic, Musical, Artistic, Sound recordings, Films and Typographical arrangement of the
published editions.
To copyright a work under the UK copyright Act of 1988 the work has to be original and the
standards of the work should be fixed and original. The types of acts that are restricted by this
Act of 1988 are: copying the work, Rent or lend or issue copies of the work to the public,
showing the work to the public, adapt the work, the right to be identified as the author,
objecting the derogatory treatment right. And the acts that are that are allowed by this Act of
1988 are: using the work for private and research study purpose, using for educational
purpose, using for news reporting, etc.

DEVELOPMENT OF COPYRIGHT LAW IN INDIA 3:

The copyright law in India had two phases, they are before independence and after
independence. During the British rule in India most of the laws in England were applied here
in India also, so we can say that the copyright law is an imitation of the British laws. This
copyright law was first introduced in India in the year 1847 and is also enacted in the same
year. This was introduced by the East India Company. According to this act the author is
given the right on copyright for the lifetime and after that for seven or forty-two years.

The cases of infringement of these rights were looked after the highest body in the local civil
court. This act was later replaced by the Copyright Act of 1914, was taken as the imitation of
1911. This was the first modern copyright law for India and the first to include all the
innovative and literature works of the time. Then comes the after independence when the
British colonial system was over, the Copyright Act of 1957 came into enforcement on 21 st of
January 1958, it replaced the 1911 act of British copyright law. Under this act the Registrar
of Copyright body was established for registering the works under the copyrights law. The
copyrights board was also formed to look upon the disputes related to the copyrights.

The present Act for Copyright in India is the Copyright Act, 1957. This act is supported by
the Copyright rules of 1958. These two are the governing laws of the copyright in India. The

3(Worldwidejournals.com, 2016)
<https://www.worldwidejournals.com/paripex/recent_issues_pdf/2016/November/November_2016_1479210143__100.pdf>
accessed 3 November 2020.

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types of works that are protected under the Act of 1957 are: Literary, Dramatic, Musical,
Artistic, Cinematography films and Sound recordings.
For the work being protected under this Act the work should be original and is novel in its
nature. The acts that are considered as infringement under this act are: Copying, publicly
issuing the copies of the work, Renting or lending the work to the public, showing the
copyrighted work to the public, communicating the work to the public and Adopting the
copyrighted work in to their work. Secondary infringement are: Selling of the work,
Distributing or selling for the purpose of trade infringing the rights of the owner over the
work, trade exhibits to the public, etc.

The acts that are considered as the exception of the use of the copyrighted work. They are:
using the work for reference, for research, for criticism or review, for reporting of the events,
etc.
DEVELOPMENT OF COPYRIGHT LAW IN USA4:
The USA’s copyright law was not related or does not have the roots from the British English
law or copyright law. The laws for copyright for USA was formulated by themselves, as a
result three private copyright laws were passed with two acts were limited to 7 years and one
for 5 years. In the year 1787 copyright clause was proposed by James Madison and Charles.
C into the US constitution during the Constitutional Convention in the same year. Then came
the Copyright Act of 1790 where the author has the rights over the work for 14 years and if
the author is still alive after the first 14 years then another 14 years can be extendable. But
this act doesn’t give rights for the people who does other works other than books and
literature. In the year 1831 Copyright Act had a chance in the rights over the term of
copyright to the author from 14 years to 28 years (can also be extended for the second term
this was amended and added in the year 1909) and also the copyright formality requirements
were also chanced. And in the year 1976 the term again got extended to 75 years or life plus
50 years.
The current act for the copyright law in USA is governed based on the Copyright Act of
1976, it got into effect from 1st January of 1978.
The types of works that are protected under this Act are: Literary, Musical, Dramatic,
Choreographic works, Photography, graphic, Sculptural works, motion pictures, sound
recordings, Architectural works.

4'Copyright Timeline: A History Of Copyright In The United States - Association Of Research Libraries' (Association of
Research Libraries, 2020) <https://www.arl.org/copyright-timeline/> accessed 1 November 2020.

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The works can be protected under this act only if it is fixed and original work. Original work
is a work which is not copied and is novel I its nature. And fixed work is explained under the
section 101 of the copyright act. The fixed work means “the works which are durable or
permanent weather if it is perceived or reproduced”. The procedure for protection under
copyright is given if it satisfies only if it fulfils the above said conditions. One fulfilled the
work is issued protection under copyright with date and time.
The work can be used fairly under the: reproduction rights, modification rights, distribution
rights, public performance rights or the display rights.
The work is considered infringed if it violates or infringes the rights of the owner on the work
or on the process of the work.

COMPARISION BETWEEN COPYRIGHT LAW OF INDIA, UK AND USA:

The concept of ownership of Copyright in India is different from other ownership in physical
material in which work is fixed. An individual owning a book may not be the owner of the
Copyright of that certain book. As per the general rule, the author is the first owner of the
Copyright of work. The Copyright provisions provide some exceptions to the general rule
mentioned above, which are necessary to clearly examine the two different concepts of
Ownership and Authorship of Copyright in India. To clear the above point, if an artwork,
photo, or a photograph is made at the occurrence of some other individual for a valuable idea,
such other individual is the original owner of the Copyright in such a case.

The creator/inventor of an idea of invention/creation is also not the actual owner of Copyright
in work unless the person is the inventor/creator of the work. Therefore, any person is having
a brilliant idea, and he/she communicates the idea to a dramatist who later on goes on to
make a play on the same idea, the originator/creator of the thought has no right in the result
of the producer, as a Copyright stays in a tangible structure and not in a mere idea. Section 17
of the Copyright Act 1957 mentions the provisions of obtaining Ownership of Copyright. The
Ownership right is available only if the person meets the requirements of the prerequisite
provision of the Copyright Act, 1957. In other laws prevailing in India no other remedy is
accessible to counter the infringement of Ownership of Copyright.

Section 17 of the Copyright Act 1957 provides for the principle that the first owner of
Copyright is meant to be the creator of the work. The meaning of the author is defined

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independently under the Copyright Act 1957 to clarify the difference between the Ownership
and Authorship of Copyright in India. The definition of author related to different works is
given under the Copyright Act 1957.

The ownership of copyrights in the UK refers to an individual or a collective who authored

the work will exclusively own the work and is referred to as the first owner of copyright
under the 1988 Copyright Designs and Patents Act. In any case, if a work is produced as part
of employment then the first owner will be the company. Independent or appointed work will
normally belong to the creator of the work except if there is an agreement to the contrary, (e.g
in a contract for service).5 Just like any other feature, copyright may be transferred or sold by
the copyright owner to another person or party. Rights cannot be claimed for any part of a
work that is a copy taken from a previous work. For example, in a piece of music featuring
samples from a previous work the copyright of the samples would still be with the original
creator of the work. Furthermore, only the owner or his exclusive licensee can bring
proceedings in the courts.
All that being said, the 1988 Copyright, Designs and Patents Act states the duration of
copyright as:
1. For literary, dramatic, artistic or musical works: 70 years from the end of the calendar year
in which the last remaining creator of the work dies.
2. Sound Recordings: 50 years from the end of the calendar year in which the work was
created, or, if the work is released within that time: 70 years from the end of the calendar year
in which the work was first released.
3. Films: 70 years from the end of the calendar year in which the last director, creator or
composer dies.
4. Typographical arrangement of published editions: 25 years from the end of the calendar
year in which the work was first published.
5. Broadcasts and cable programs: 50 years from the end of the calendar year in which the
broadcast was made.
6. Crown Copyright: Crown Copyright will last for a period of 125 years from the end of the
calendar year in which the work was made.

5 'Statute of Anne Great Britain [1710] (Encyclopaedia Britannica, 2017) <https://www.britannica.com/topic/Statute-of-

Anne> accessed 1 November 2020.

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7. Parliamentary Copyright: Parliamentary Copyright will apply to work that is made by or
under the guidelines or control of the House of Lords or the House of Commons and will last
until 50 years from the end of the calendar year in which the work was created.
It’s important to point out that it is an offence to perform any of the following acts without
the consent of the owner. The author of a work, or a director of a film may also have certain
moral rights: 1. Copy the work. 2. Lend, rent or issue copies of the work to the public. 3.
Perform, broadcast or preview the work in public. 4. Adapt the work. 5. The right to be
identified as the author. 6. Right to object to derogatory treatment.

On the other hand, (17 U.S. Code § 201 Ownership of copyright) explains the concept of
ownership of copyright in the United States6. The section contains the follows:
(A) Initial Ownership: Copyright in a work protected under this title vests initially in the
author or creators of the work. The creators of a joint-work are co-owners of copyright in that
certain work.
(B) Works Made for Hire: In the case of a work made for hire the employer or other person
for whom the work was made is considered the creator for purposes of this title, and unless
the parties have agreed otherwise in a written agreement signed by them, owns all of the
rights mentioned in the copyright.
(C) Contributions to Collective Works: Copyright in each different contribution to a
collective work is distinct from copyright in the collective work as a whole, and vests initially
in the actual creator of the contribution. In the absence of a transfer of the copyright or of any
rights under it the owner of copyright in the collective work is expected to have acquired only
the advantage of reproducing and distributing the contribution as part of that particular
collective work, any revision of that collective work, and any later collective work in the
same series.
(D) Transfer of Ownership:
(1) The ownership of a copyright may be transferred in whole or in part by any means of
conveyance or by operation of law, and may be bequeathed by will or pass as personal
property by the applicable laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of
the rights specified by section 106 may be transferred as provided by clause (1) and owned

6 N. Samanta, 'Copyright Exhaustion in India and the USA: A Comparative Critique' (2009) 4 Journal of Intellectual

Property Law & Practice.

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independently. The owner of any particular exclusive right is entitled, to the extent of that
right, to all of the protection and remedies accorded to the copyright owner by this title
(E) Involuntary Transfer: When an individual author’s ownership of a copyright, or of any of
the exclusive rights under a copyright, has not previously been transferred voluntarily by that
individual author, no action by any governmental body or other official or organization
purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the
copyright, or any of the exclusive rights under a copyright, shall be given effect under this
title, except as provided under title 11.

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 CONCLUSION:
The basic objective of the IPR is to help in meeting the challenges in the development such as
reducing poverty, stimulating economic growth, improving the health status, improving
access to education and contributing the overall sustainable development. Intellectual
property rights are one of the most important aspects of the creative world. The rights ensure
protection to invention, competition, recognition and financial support. All that being said,
India is now a signatory to various Intellectual Property treaties and convention. IPR must be
given due credits. If we give due credits to IPR, they will help in the sustainable development
of mankind. In addition to that, countries must enhance awareness on Intellectual property
laws and their functions at national and international levels to protect patentable inventions in
a large manner.

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 BIBLIOGRAPHY
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Electronic copy available at: https://ssrn.com/abstract=3832534