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ASSIGNMENT 1
PART A
1.TERM OF COPYRIGHT
A. Section 22-Term of copyright in published literary, dramatic, musical and
artistic works

Except as otherwise hereinafter provided, copyright shall subsist in any literary,

dramatic, musical or artistic work published within the lifetime of the author until
sixty years from the beginning of the calendar year next following the year in
which the author dies.

Explanation: In this section the reference to the author shall, in the case of a work
of joint authorship, be construed as a reference to the author who dies last.

It is pertinent to nota that by the 2012 amendment, the words "other than a
photograph" have after the words "artistic work" been omitted Thus, the term of
photograph will be the same as in respect of artistic work. The definition of
artistic work in Section 2 (c) means photograph also.

Section 23-Term of copyright in anonymous and pseudonymous works

(1) in the case of a literary, dramatic, musical or artistic work (other than a
photograph), which is published anonymously or pseudonymously, copyright shall
subsist until sixty years from the beginning of the calendar year next following the
year in which the work is first published Provided that where the identity of the
author is disclosed before the expiry of the said period, copyright shall subsist
until sixty years from the beginning of the calendar year next following the year in
which the author dies.

(2) In sub-section (1), references to the author shall, in the case of an anonymous
work of joint authorship, be construed.-

(a) where the identity of one of the authors is disclosed, as references to that
author,

(b) where the identity of more authors than one is disclosed, as references to the
author who dies last from amongst such authors.
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(3) In sub-section (1) references to the author shall, in the case of a

pseudonymous work of joint authorship, be construed,-

(a) where the names of one or more (but not all) of the authors are
pseudonymous and his or their identity is not disclosed, as references to the
author whose name is not a pseudonym, or, if the names of two or more of the
authors are not pseudonyms, as references to such of those authors who dies
last:
Section 26: Term of copyright in cinematograph films

In the case of a cinematograph film, copyright shall subsist until sixty years from
the beginning of the calendar year next following the year in which the film is
published.

Section 27-Term of copyright in records

In the case of a [sound recording], copyright shall subsist until sixty years from the
beginning of the calendar year next following the year in which the pr. 2016
sound recording is published.

2.Rights of performer.
A PERFORMERS RIGHTS

Two new sections viz, Section 38A and 38B have been inserted by the Copyright
(Amendment) Act, 2012 relating to the exclusive rights of performers and moral
rights of performers respectively. The same are set out below:-

Section 38A-EXCLUSIVE RIGHTS OF PERFORMERS

(1) Without prejudice to the rights conferred on authors, the performers right
which is an exclusive right subject to the provisions of this Act to do or authorise
for doing any of the following acts in respect of the performance or any
substantial part thereof, namely:-

(a) to make a sound recording or a visual recording of the performance, including

-
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(i) reproduction of it in any material form including the storing of it in any medium
by electronic or any other means;

(ii) issuance of copies of it to the public not being copies already in circulation:

(iii) communication of it to the public;

(iv) selling or giving it on commercial rental or offer for sale or for commercial
rental any copy of the recording,

(b) to broadcast or communicate the performance to the public except where the
performance is already broadcast.

(2) Once a performer has, 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 performers right in the same film: Provided that, notwithstanding anything
contained in this sub-section, the performer shall be entitled for royalties in case
of making of the performances for commercial use.

Section 38B : MORAL RIGHTS OF PERFORMERS

The performer of a performance shall, independently of his right after

assignment, either wholly or partially of his right, have the right-

(a) to claim to be identified as the performer of his performance except where

omission is dictated by the manner of the use of the performance; and

(b) to restrain or claim damages in respect of any distortion, mutilation or other

modification of his performance that would be prejudicial to his reputation.

Explanation: For the purposes of this clause, it is hereby clarified that mere
removal of any portion of a performance for the purpose of editing, or to fit the
recording within a limited duration, or any other modification required for
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Assignment 1
Part B
1. What is passing off? Explain
A.The Oxford Dictionary of Law defines Passing Off as "Conducting one's business
in such a way as to misled the public into thinking that one's goods or services are
those of another business."

The commonest from of passing off is marketing goods with a design, packaging,
or trade name that is very similar to that of someone else's goods.In passing off, it
is not necessary to prove an intention to deceive and innocent passing off is also
actionable.

The term 'Passing off is not defined by the Act. However it has been mentioned in
Sections 11 (3) (a), 27, 134 and 135. The specific description of passing off is not
given in the Trademark Act but the courts have drawn its meaning from common
law. Passing off occurs where the mark is not only deceptively similar to the
trademark of another but also creates confusion for the customers which
ultimately results in damage to goodwill and business of the unregistered owner
of the mark. The main purpose of passing off action is to ensure that a person's
goodwill and reputation are not affected or exploited merely because of non-
registration.

The elements of passing off are as follows :-

(i) Misleading or deceiving the public. However, intention to deceive is not

necessary.

(ii) Passing off is done in the course of trade or business.

(iii) It affects the business and goodwill of the proprietor

(iv) It affects the reputation of the proprietor.

(v) Generally, in passing off the parties are engaged in the trade of the same
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or similar products or closely related products and services Some of the instances
of passing off are (Passing off is said to be occurred when any of the following are
done):-

(i) Copying of someone's mark directly / direct false representation;

(ii) Copying of another's colour scheme of the mark or label;

(iii) Copying or imitating the design of goods;

(iv) Copying the shape of goods;

(v) Adapting a mark which is same or is deceptively similar;

(vi) Copying the essential part of the trade mark of another.

infringement Action
1.It is a statutory right
2.Registration of trade mark is necessary to institute a suit for infringement
3.Plaintiff is only required to establish that the infringing mark is deceptively
similar to the registered mark in respect of same or similar good or services and
no further proof is required as there exist a presumption of confusion
4.Prosecution under criminal remedy is easier
5.Use of mark by the defendant need not cause injury or damage to plaintiff
6. Applies only to goods
7.Use of registered trade mark or a mark similar to it is necessary and sufficient
8.Infringement need not lead to passing off
9.Benefit of institution of suit under section 134 of the Act is available wherein
the Registered Proprietor or registered User of the trade mark can institute the
suit where they actually and voluntarily reside or carry on business or personally
work for gain.
10.Infringement is based on property acquired by registration and there- fore the
use of the mark is not relevant.
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Passing Off Action

1. It is a common law right
2.Registration is not a pre- requisite
3.Plaintiff is not only required to establish deceptive similarity of the two
contesting marks but also required to prove deception or confusion among public
and the likelihood of injury to the plaintiff's mark
4.Prosecution under criminal remedy is relatively harder
5.Use of the mark must cause or likely to cause injury or damage to plaintiff's
goodwill
6.Applies to goods as well as services
7.Use of the mark is not essential. Use of get-up, colour, scheme or any of the
essential feature of the mark is sufficient
8.Passing off need not lead to in- fringement
9.PNo benefit under Section 134 is available. Regular rules of jurisdiction under
Section 20 of the Code of Civil Procedure are applicable and hence the suit for
passing off has to be instituted where the defendant resides or carries on
business or where the cause of action arose.
10.Passing off is based on the property acquired by good will and by the use of
the mark.
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ASSIGNMENT 2
PART A
1.TRADE MARK
A. In common parlance, a trade mark is a 'mark' which distinguishes the goods
and products of one person from another. Oxford law dictionary defines trade
mark as "A distinctive symbol that identifies particular products of a trader to the
general public. The symbol may consists of device, words or combination of
these." In another words a trade mark is a visual symbol or a sign in the form of
device, word or a label which is used for identification of goods and/or services
distinguishable from similar goods and/ or services supplied by the others. The
trade mark or the symbol can also be a combination of drawings, pictures,
colours, words, letters, numbers etc. For example the trade mark 'Rexona' and
'Lux' are distinguished by their names (trade marks) though both deal similar
products ie., Soap.
Ideally, the elements/characteristics of a trade mark are:-
1. Trade mark must be a mark of any manner such as a label, signature, number,
letter or a combination of any or all of them.
2. Trade Mark should be capable of being graphically represented.
3. Trade mark must be used (or proposed to be used) in relation to goods or
services.
4. Trade mark must have a distinguishable feature from the trade mark of
another.
5. Trade mark must preferably be an invented word.
6. Trade mark must show some nexus between the goods/services provided and
the mark.
7. It may include the shape of goods and its packaging or combination thereof.
8. It should be descriptive of goods or services or suggestive of quality of goods.
For example The Beauty Shop which provides beauty products
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2.WIPO
A. The World Intellectual Property Organization. WIPO's basic aim was to provide
"the protection of intellectual property throughout the world." (Article 3). WIPO
was formally created by the Convention Establishing the World Intellectual
Property Organization, which entered into force on April 26, 1970. WIPO became
a specialized agency of the UN in 1974. WIPO currently has 187 member states
and is headquartered in Geneva, Switzerland. The Agreement between the United
Nations and the World Intellectual Property Organization notes in Article 1 that
WIPO is responsible:-

"for promoting creative intellectual activity and for facilitating the transfer of
technology related to industrial property to the developing countries in order to
accelerate economic, social and cultural development, subject to the competence
and responsibilities of the United Nations and its organs, particularly the United
Nations Conference on Trade and Development, the United Nations Development
Programme and the United Nations Industrial Development Organization, as well
as of the United Nations Educational, Scientific and Cultural Organization and of
other agencies within the United Nations system."

The Agreement marked a transition for WIPO from protection of intellectual

property, to one that involved the more complex task of promoting technology
transfer and economic development. It has a website called www.wipo.int.

WIPO has established WIPOnet, a global information network. The project seeks
to link over 300 intellectual property offices in all WIPO member states. In
addition to providing a means of secure communication among all concerned
parties, WIPOnet is a foundation for WIPO's intellectual property services.
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ASSIGNMENT 2
PART B
1.what elements can be protected under copyright Act and What are the rights
confeered in copyright as per copyright Act 1957?
A. Evolution of copyright law in India started way back in the year 1914 during the
British regime. This is when the first copyright act in India was formed though it
was a complete replica of the English Copyright Act of 1911. This was further
modified to make it appropriately applicable to the then British India. The 1914
Act was continued with minor modifications until 1957 Act was brought into force
w.e.f. 24th January 1958 shortly after independence. The Act of 1957 obviously
repealed the 1914 Act. However various difficulties were faced by legislators as
well as common man in its applicability since a large part of it was still based on
the 1911 Act. Therefore a Select Committee was appointed by the legislators to
prepare a model for amendment of Copyright Act. The two major suggestions of
this Committee which were ultimately enacted were abolition of (i) registration as
precondition for infringement and (ii) gratuitous supply of books to designated
libraries.

India also became a member of Berne Convention, Rome Convention, UCC, TRIPS,
WIPO etc for the sole purpose of giving international recognition to copyright
laws. These conventions have been explained in brief in the previous chapter.

Thereafter time and again the copyright act was amended to suit the needs of
Indian complexities and culture. It was amended in the years 1983, 1994 (which
brought about significant changes in the copyright act), 2002 and recently in the
year 2012.

In fact the present copyright act of 2012 seeks to bring the provisions of copyright
act in conformity with World Intellectual Property Organization (WIPO). A number
of new provisions have been incorporated by the Copyright Act by the 2012
Amendments. Definition of new terms such as 'commercial rental'. 'visual
recording' etc. have been introduced. Further, provision for authors (in
cinematographic film or sound recording) to receive royalty for commercial
exploitation, provision for storing copyright material in electronic means and to
provide for liability for internet service providers etc. have been introduced by
this Amendment.
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MEANING OF COPYRIGHT

As the name suggests, copyright means the right to copy. In plain words, the
owner of copyright has an exclusive right over his work and is entitled to make
copies of the same. Copyright as per Oxford Dictionary means "the exclusive right
to publish or record a work". It can also be defined as an intangible right which is
granted to the owner of a literary or artistic work t multiply copies for a specified
period and publish the same.

Copyright has the important place in Intellectual Property Rights. Copyright is a

fundamental area of the intellectual property rights which is important not only
with respect of works authored by the individual but also because it includes
different kinds of works. Copyright is the exclusive right to do or to do certain acts
in relation to literary works, dramatic, musical and artistic works, cinematograph
film, sound recording and computer databases.

Section 14 of the Copyright Act defines copyright as "the exclusive right to do or

authorize others to do certain acts in relation to (i) literary, dramatic or musical
work (ii) artistic work (iii) cinematograph film and (iv) sound recording.

Thus it can be seen from the definition above that copyright in a work consists of
various rights which are bestowed on its owner. Such rights are exclusive in
nature. In fact, Copyright is a creation of statute and its primary object is to
protect the owner/ author of original work from unauthorized reproduction or
use of his work (also known as infringement). Any kind of infringement of the
original work holds the infringer civilly and in certain circumstances, even
criminally liable.

As long as the work is original, the author of such work has right over it for her
lifetime plus 60 years for her published literary, dramatic artistic and musical
work. The time frame for other forms of work may be different but the period of
60 years from the date of original publication is available in all forms of
copyrighted works.

Copyright law is designed to prevent copying of existing physical material in art

and literary work. The objective is to protect the writer or owner from the
unlawful reproduction of his work. The law does not permit one man to make
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profit and to appropriate to him that which has been produced by labour, skill and
capital of another. In order to prevent from such acts by another and to prevent
from the violation of the rights of the creative authors, there are Copyright
Societies which take care of the authors rights and all the things related to
copyrighted work

Characteristics of Copyright are explained in brief as follows:-

(a) Originality: Copyright can subsists only in original work. No copyright can
subsist in any unauthorized reproduction of work or in a work which is not
originated from the author.

(b) Negative Right: Copyright protects the owner of the original work from others.
In other words, one cannot use the authors/ owner's work without her
permission or consent. Since this right is prohibitory in nature, the same is a
negative right available to the author against all.

(c) Exclusive Right: One of the main features of copyright is that is an

exclusive right. It is kind of a monopoly right excluding others from using