INTELLECTUAL PROPERTY LAWS
Q. 1. What do you mean by intellectual property rights? Point out its forms and legal scope?
Ans. Intellectual property rights-Meaning, Forms and Scope.- Property means the highest right a man can have to anything. being that right which one has to lands or tenements, goods or chattels, which does not depend on another’s courtesy. It includes ownership, estates and interests in corporeal things, and also rights, such as trade marks. copyrights, patents and even rights in personam capable of transfer or transmission, such as debts, and signifies a a beneficial ben right to or a thing considered as having a money oney value, especially with reference to transfer or succession and to their capacity of being injured. [R. C. Cooper v. Union of India, (1970) 1 SCC 248].
Corporeal property may be tangible and physical in nature, such as land, goods, etc. However, incorporeal property may be tangible, and abstract in nature. Corporeal property is the right of ownership in material things, incorporeal property is any other proprietary right in rem. Incorporeal property has no physical form. Incorporeal property is defined as that property which has no corpus or body. It exists in material or immaterial things, such as, lease, easements, servitudes, trademarks, copyrights. patents, etc.
Apart from this intellectual property comes out of human intellect which is intangible and basically abstract. However, it is at par with corporeal property.
‘Intellectual property’ is a matter of business asset. In can be described as property because it is capable of sale, purchase, mortgage and licence and assignment, etc. The term ‘intellectual property’ has evolved from the term “industrial property”, consisting of patents, industrial designs and trademarks, and was used in the Pavin Convention, for the protection of industrial property as far back as to 1833.
Intellectual property is the product of human brain and intellect. Intellectual property, in its literal sense means the things which emanate from the exercise of human brain. It is the product emerging out of the intellectual labour of a human being.
The term “intellectual property” come to be recognised and internationally accepted es including copyrights, patents, trademarks and cofidential information. The owner of such rights have been granted specific and enforceable legal rights.
Salmond has rightly said that:-
“Immaterial product of a man’s brain may be as valuable as his land or his goods. The law, therefore, gives him a proprietary right in it……”
Intellectual property as per WIPO.-“Literary, artistic and scientific works, performances of performing artists, phonograms, and broadcasts, inventions, in all fields of human endeavour, scientific discoveries, industrial designs, trade-marks, service marks, and commercial names and designations, protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields. [Convention establishing WIPO (World Intellectual Property Organisation), dated 14-7-1967].
Subject-matter of intellectual property.- The subject-matter of intellectual property in wide ranging, which includes rights relating to literary, artistic and scientific works, performances of performing artists, phonograms and broadcasts, inventions in all fields of human endeavour. scientific discoveries, industrial designs. trade-marks, service marks, and commercial names and designation, protection agaist unfair competition and all other rights resulting from intellectual activity in industrial, scientific, literary or artistic fields.
Forms of intellectual property.- Basically there are four forms of intellectual property-patents, copyrights, designs and trademarks. With the development of law, the Intellectual Property Rights (I.P.Rs.) for legal protection have been identified as under :-
(1) Rights of Artists. I.P.Rs. include rights of artists, painters. musicians, sculptors, photographers and authors for copyright in their works.
(2) Rights of Inventor.-I.P.R. includes right of the inventor for patent in his invention.
(3) Rights of Traders. I.P.R. include right of traders in their trade mark.
(4) Rights of Manufacturers. I.P.R. includes right of manufacturers and producers on geographical indication in relation to such production and produce.
(5) Rights of Creators. I.P.R. includes rights of creator in integrated circuits.
(6) Rights of Performers, etc.-I.P.Rs. includes right of performers. producers of phonogrammes and broadcasting organizations in respect of fixation of their programmes for a copyright in their work.
(7) Rights of Computer Programmers. I.P.R. includes rights of computer programmers whether in source or object code for a copyright in their programmes and compilation data.
(8) Rights of Computer Technologists. I.P.R. includes rights of computer technologists for their layout designs of integrated circuits for patents in the work developed by them.
(9) Rights of Designers. I.P.R. includes rights of designers for their distinctive design striking to the eyes.
(10) Rights of Businessmen.-L.P.R. includes rights of businessmen for protection of their undisclosed information on technology and management, i.e., business secrets.
(11) Rights of Breeders. I.P.R. includes rights of breeders in bio- technology for a patent in the new plant variety grown by them.
Object of IPR laws.- The object of I.P.R. laws is to accredit respect for the work of inventors, creators and performances, etc. Such products are outcome of human intellect. I.P.Rs. are just like good-will and movable properties for purposes of transfer, assignment, taxation, etc. I.P.Rs. are protected and promoted by guaranteeing the authors and inventors a monopoly in commercial exploitation of their rights for a limited period.
Legal Regime.-Rights and duties are legally correlatives. The correlative duties of intellectual property include the duty owed by all others not to infrings upon the rights of the owner and the duty of an assignee to take the permission of the owner before transferring his rights of assignment to a third party. More so, I.P.R. laws deal with the legal rights associated with innovative and creative efforts or commercial reputation and good-will. The object for which intellectual property rights are being utilised and the role they play in industry and trade, brought them to the fore-front in all plans of economic, social and cultural development in the present world.
In India, following laws have been enacted to protect I.P.Rs. :-
(i) The Copyright Act, 1957.
(ii) The Trade Marks Act, 1999.
(iii) The Patents Act, 1970.
(iv) Designs Act, 2000.
(v) Protection of Plant Varieties and Farmers, Rights Act, 2001.
(vi) Biological Diversity Act, 2002.
(vii) The Semi-conductor Integrated Circuit Layout-Design Act, 2000.
(viii) Geographical The cal Indication Protection) Act, 1999. of Goods (Registration and
(ix) The Intellectual Property Appellate Board (Procedure) Rules, 2003.
Q. 2. Write short notes on:
(i) Paris Convention
(ii) Berne Convention
(iii) WIPO
(iv) TRIPS Agreement
Ans. (i) Paris Convention. The Paris Convention for the Protection of Industrial Property popularly known as “Paris Convention” was the first attempt at what became the thrust towards “harmonisation”, a concept that pervades all of the recent treaties and international activities in intellectual property law. The Paris Convention was originally signed by representatives of eleven countries on March 20, 1883 and became effective on March 7, 1884.
Originally, rights aristing out of trade marks were severely limited in their geographical scope, each nation having its own law and practice independent of all others. Till the late 19th century, nations did not consider co-operation in order to protect the rights of their nationals in neighbouring nations. When these nations recognised that the trade mark rights afforded by their neighbours were completely different from those of their own, the desire grew to have trade-mark rights and laws bear a certain similarity in these neighbouring countries so that nationals of one nation would not be greatly disadvantaged in another nation. Hence arose the beginning of the concept that we today, in the various intellectual property disciplines refer to as “harmonisation”.
The Paris Convention, established as a result of the efforts of inventors and industrialists, was the most far-reaching example of an attempt at uniform treatment of trade-mark owners and international trade-mark law. The initial objective of the Convention was “the creation of a union which. without encroaching on the municipal law of the contracting countries, would lay down a number of general principles securing the interests of industrial property in the interior of a country as well as abroad”.
(ii) Berne Convention. The Berne Convention known as the ‘Berne Conventior for the Protection of Literary and Artistic Works’, was developed at the instigation of Victor Hugo and was first adopted on September 9, 1886 in Berne. Switzerland. It was influenced by the French “droit d’auteur’ (right of the author) which contracts with the Anglo-Saxon concept of ‘copyright’ which only dealt with economic concerns. The Berne Convention sets out to harmonise the way copyright is regulated at an international level.
Prior to Berne Convention, copyright law usually applied at a national level. This often meant that the outside of the author’s home country, there was very little protection for copyright work. The Berne Convention requires member nations to offer the same protection to authors from other member countries that it provides to its own nationals. It also sets out a common framework of protection and specifies minimum protection that are required. In addition to establishing a system of equal treatment that internationalised copyright amongst signatories, the agreement also required member States to provide strong minimum standards of copyright law.
The Berne Convention grants exclusive rights to authors which include the right of translation, the right of reproduction in any manner or form, which include any sound or visual recording, the right to perform dramatic, dramatico-musical works, the right to broadcast or communicate to the public, by wire, rebroadcast or loudspeaker or any other analogous instrument, the broadcast of the work, the right of public recitation, the right to make adaptations arrangements or other alterations of a work and the right to make cinematographic adaptations and reproductions of a work.
(iii) WIPO.- WIPO, i.e., World Intellectual Property Organisation is one of the 16th specialised agencies of the United Nation Organisations. It was established in 1967 at Geneva, Switzerland. The WIPO is responsible for promoting the protection of intellectual property throughout the world. It fulfils this responsibility by promoting co-operation among nations in intellectual property matters, administering various ‘unions’ and other treaty organisations founded on multilateral treaties, and creating model laws for adoption by developing nations.
The Convention establishing the WIPO concluded in Stockholm on July 14, 1967. vide Article 2 (viii), provides that “intellectual property shall include rights relating to literary, artistic and scientific works, performance of performing artists, phonograms, and broadcasts, invention in all fields of human endeavour, scientific discoveries, industrial designs, trade-marks, service marks, and commercial names, and designation, protection against unfair competition and all other rights resulting from intellectual activity in industrial. scientific, literary or artistic fields.
As per convention establishing, World Intellectual Property Organisation, as concluded in Stockholm on July 14, 1967, vide Article VII, following rights have been included in IPRs :-
(i) Literary, artistic ad scientific works;
(ii) Performances of performing artistic, phonograms and broadcasts;
(iii) Invention in all fields of human endeavour;
(iv) Scientific design;
(v) Industrial design;
(vi) Trade-Marks:
(vii) Service Marks;
(viii) Commercial names and designations:
(ix) Protection against unfair competition;
(x) Other rights resulting from intellectual activity in industrial, scientific, literary or artistic fields.
Objectives of WIPO. The objectives of WIPO are-
(i) to promote the protection of intellectual property throughout the world through co-operation among States and where, appropriate, in collaboration with any other international organisation;
(ii) to ensure administrative co-operation among Unions.
(iv) TRIPS Agreement. The Agreement on Trade related aspects of Intellectual Property rights, undoubtedly is an efforts on international level to protect I.P.Rs. This agreement came into effect on 1st January. 1995.
The Member Countries hereby agree as follows:-
Desiring to reduce distortions and impediments to iternational trade and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.
Recognising to this end, the need for new rules and disciplines concerning :-
(a) the applicability of the basic principle of the GATT, 1994 and of relevant international intellectual property agreements or Conventions;
(b) the provisions of adequate standards and principles concerning of the availability, scope and use of trade-related intellectual property rights:
(c) the provisions of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;
(d) the provision of effective and expeditious procedures for the multilateral prevention and settlement of disputes between government, and
(e) transitional arrangements aiming at the fullest participation in the results of the negotiations.
The TRIPS Agreement has recognised the following :
(i) That the need for a multilateral framework of principles, rules and disciplines dealings with international trade is counterfeit goods.
(ii) That the intellectual property rights are private rights.
(iii) That the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives.
TRIPS Agreement established a mutually supportive relationship between the WTO and the WIPO as well as other relevant international organisation.
Part III of the TRIPS Agreement provides for the enforcement of intellectual property rights. Article 41 provides that:-
“41. (1) Members shall ensure that enforcement procedures as specified in this part are available under their laws so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
(2) Procedures concerning the enforcement of intellectual property shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.
(3) Decisions on the merits of a case shall preferably be in writing and reasoned. They shall be made available at least to the parties to the proceedings without undue delay. Dicisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.
(4) Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member’s law, concerning the importance of a case, of at least the legal aspects of initial judicial decision on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases.
(5) It is understood that this part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of members to enforce their law in general. Nothing in this part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general. Q. 3. Define the following terms under the Copyright Act, 1957.-
(i) Artistic work
(ii) Dramatic work
(iii) Government work
(iv) Indian work
(v) Literary work
(vi) Musical work
(vii) Author
(viii) Composer
(ix) Performer
(x) Sound Recording
(xi) Sculpture
(xii) Work of architecture
(xiii) Cinematograph film
(xiv) Adaptation
(xv) Infringing copy
(xvi) Work of joint authorship.
Ans. (i) Artistic Work. Section 2(c), Copyright Act, 1957 defines ‘artistic work’ as under :-
“Artistic work’ means-
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) a work of architecture; and
(iii) any other work of artistic craftsmanship.”
Thus, the aforesaid sub-section envisages a painting, a sculpture, a diagram (i.e., diagram, map, chart or plan), a photograph, an engraving. work of architecture and any other work of artistic craftsmanship, as an ‘artistic work’.
The definition as such is exhaustive in nature. More so, Section 13(1)
(a) ensures copyright protection to artistic works.
Artistic Work’ has been defined as meaning a painting, a sculpture, a drawing, an engraving or a photograph. However, the performance given by an artist in a cinematograph film cannot be equated with any of the five categories indicated, as it is a comprehensive definition, unless expressly covered under Section 2 (c) would not be of any help to the cine artiste.[Fortune Films v. Dev Anand, AIR 1979 Bom 17].
More so. ‘Labels’ had been held as ‘artistic work’, vide, Camlin Private Ltd. v. National Pencil Industries. AIR 1986 Del 444.
In case of artistic work, copyright is an exclusive right to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely-
(i) to reproduce the work in any material form including depiction, in three dimension of a two dimensional work or in two dimension of a three dimensional work.
(ii) to communicate the work to the public.
(iii) to issue copies of the work to the public not being copies already in circulation,
(iv) to include the work in any cinematograph film.
(v) to make any adaptation of the work.
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clause (i) to (v). [For details see Section 14 (c)].
As per Section 13 (1) (a), copyright subsists in an artistic work.
Essentially, artistic copyright is concerned with visual image.
No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in acordance with the provision of this Act or of any other law for the time being in force, but nothing in Section 16 of the Copyright Act shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence. [vide Section 16, Copyright Act. 1957].
The term “Artistic Work” is not an omnibus term covering all the artistic works. This calls for a legislative intervention and it is a matter that is taken by individual states to formulate appropriate legislation and choose the subject-matter that is covered as artistic work. Held that, type fac. ai. Registrar of Copyright, New Delhi, (2002) 24 PTC 427).
(ii) Dramatic Work. Section 2(h) of the Copyright Act, 1957 defines ‘Dramatic Work’ as under:-
‘Dramatic Work’ includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.”
Section 13 (1) (a) of the Act provides copyright protection to ‘dramatic works. Where a stage play was based on an article published in newspaper, held that it was not an infringement of copyright in the articles [Indian Express v. Jagmohan, AIR 1985 Bom 229).
(iii) Government Work.- Sub-section (k) of Section 2 of the Copyright Act, 1957 defines ‘Government work’ as under:
“Government Work” means a work which is made or published by or under the direction or control of-
(i) the Government or any department of the Government.
(ii) any Legislature in India:
(iii) any Court. Tribunal or other judicial authority in India.”
Thus. ‘Government Work connotes a work which is made or published by Government or its agencies.
(iv) Indian Work.- Section 2 (1) of the Copyright Act, 1957 defines ‘Indian Work’ as under:
“Indian Work” means a literary, dramatic or musical work.-
(i) the author of which is a citizen of India: or
(ii) which is first published in India, or
(iii) the author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India.”
Thus, any literary, dramatic or musical work, whose author is a citizen of India or if such work first published in India, is an Indian Work
However, in case of an unpublished work, at the time of making of such work, its author must be a citizen of India.
(v) Literary Work.- Sub-section (o) of Section 2, Copyright Act. 1957 envisages that literary work includes computer programmes, tables and compilations including computer databases.
The words “literary works” are not confined to works of literature in the commonly understood sense, ie., novel, poetry, history or books etc. However, it must be taken to iclude all works expressed in writing, whether they have any literary merit or not. Agarwala Publishing House v. Board of High School and Intermediate Education, AIR 1967 All 91].
Thus, works like Football coupons, a set of logarithmic tables or an income tax return are considered literary works. But there is no copyright in mere collection of words which is not a compilation. However, copyright subsists in dictionaries, because they are compilations, and compilation is included in the definition of literary works.
More so, it has been held that question papers set at examination are original “literary works.” [See University of London Press v. University Tutorial Press, (1916) 2 Ch 601 and Jogdish Prasad v. Parmeshwar Prasad, AIR 1966 Pat 33].
Dissertation is an literary work. [Fateh Singh Mehta v. O.P. Singhal, AIR 1990 Raj. 8].
Computer programme is also an literary work. [Bharat Petromony Dot Com. Pvt. Ltd. v. People Intractive Pvt. Ltd.. AIR 2009 Mad. 78).
(vi) Musical Work. Section 2 (p) provides that 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.
Combination of melody and harmony includes under musical work. Indian Performing Rights Society v. Eastern India Motion Picture Association, AIR 1977 SC 1443).
Remix Songs. Regarding popular songs with different musical composition, if a musical arranger so decorates, develops, transfer to a different medium or otherwise changes the simple music of a popular song or to make his arrangement fall within the description of an original musical work, such an arrangement is copyrightable [Redwood Music v Chappell (1982) RPC 109].
(vii) Author.- Section 2 (d) of the Copyright Act. 1957 defines author in relation to various categories of works as follows:
“Author” means-
(i) in relation to a literary or dramatic work, the author of the work.
(ii) in relation to a musical work, the computer,
(iii) in relation to an artistic work other than a photograph, the artist,
(iv) in relation to a photograph, the person taking the photograph,
(v) in relation to a cinematograph film or sound recording, the producer, and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to v be created.
The author is a person who actually writes, compiles, composes or draws the work, notwithstanding the idea of the work may be suggested by another.
Then, the originator of a brilliant idea is not the owner of the copyright in the work provided he is also the creator of the work.
Author includes joint author [Burlington Home Shopping Pvt. Ltd. v Rajnish Chibber. (1996) 61 DLT 6)
The narrator of a book and author both are joint authors. (Nazma Haptulla v. Orient Longman Ltd., AIR 1989 Delhi 63].
Exceptions. There are exceptions to the rule that the author of work is the first owner, te, author, if an employee, and work is made during course of employment, similarly, where work is a cinematograph film or sound recording.
(viii) Composer. Section 2 (ffa) defines ‘composer” in relation to a musical work, composer means the person who composes the music regardless of whether he records it in any form of graphical notation.
Thus, in case of a musical work, the person who composes the music regardless of whether he records it in any form is a composer.
More so, the composer enjoys a copyrighted protection to his work.
(ix) Performer. Section 2 (gg) of the Copyright Act defines performer as under
‘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.”
More so, the ‘performance’ in relation to a performer’s right means any visual or accoustic presentation made live by any one or more performers.
More so, the Copyright (Amendment) Act, 1994 has conferred certain special rights to singers and other performers [vide, Section 38). Section 38 of the Act lays down certain performer’s rights.
Live events. Though, there is no copyright in live events, yet. where such events include the performance of any performers, the broadcasting of and sound recording of such events, cannot be done even without permission of such performers.
(x) Sound Recording. Section 2 (xx), defines ‘sound recording’ as such
‘Sound recording’ means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by which the sounds are produced.
Copyright in a cinematograph film or a sound recording is separate from the copyright in any work from which or from a substantial part of which the film or sound recording is made. The former will not affect the latter.
Then, the home taping of sound recording or video-taping of television programmes is an infringement of the copyright.
More so. Section 52-A of the Act as inserted by the Copyrighi (Amendment) Act, 1984, emvisages certain particulars to be included in sound recording and video films.
(xi) Sculpture. Section 2 (c) of the Act envisages that artistic work means a painting, a sculpture, a drawing, an engraving, or a photograph, whether or not any such work possesses artistic quality Thus, a sculpture is an artistic work. Further, as per Section 13 (1) (a), copyright submits in a sculpture being an artistic work.
For purposes of sculpture, copyright means an exclusive right-
(i) to reproduce the work in any material form including depiction in three dimensions of or two dimensional work or in two dimensions of a three dimensional work.
(ii) to communicate the work to the public.
(iii) to make any adaptation of the work.
However, “engravings” includes etchings, lithographs, wood-cuts prints and other similar works, not being photographs [vide Section 2 (i)]. Section 2 (za), provides that ‘work of sculpture’ includes casts and models.
(xii) Work of Architecture. Section 2 (b) of the Act defines “Work of architecture” as follows:-
“Work of architecture” means any building or structure having as artistic character or design, or any model for such building or structure”
In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction; (see Section 13 (5)).
Thus, a work of architecture, means any building or structure having an artistic character or design, or any model for such building or structure. This must be contrasted with other artistic works like painting, drawing, etc. which does not require artistic quality for copyright protection.
Section 59 of the Act enacts as under:-
“Restriction on remedies in the case of worker of Architecture (1) Notwithstanding anything contained in the Specfic Relief Act, 1963, where the construction of a building or other structure which infringes or which, if completed, would infringe the copyright shall not be entitled to obtain an injunction to restrain the construction of such building or structure or to order its demolition.
(2) Nothing in Section 58 shall apply in respect of the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work.”
(xiii) Cinematograph film. Section 2 (f) defines “Cinematograph film”, as under-
“Cinematograph film” means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and cinematograph film shall be construed as including any work produced by any process analogous to cinematography including video films.”
As per Section 13 (b) copyright subsists in cinematograph films.
The work of a cine artist his performance as an actor in a cinematograph film does not fall within the definition of “Cinematograph film” to be found in Section 2 (f), and hence, is not protected under the Copyright Act. It is the cinematograph film that enjoys protection film that enjoys protection alongwith its sound track. [Fortune Films v. Dev Anand, AIR 1979 Bom 17].
According to Section 14 (d), in the case of cinematograph films, copyright is an exclusive right-
(i) to make a copy of the film including a photograph of any image forming part thereof.
(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions.
(iii) to communicate the film to the public.
The author of a cinematograph film is the producer. A cinematograph film may be taken of a live performance, i.e.. short events, public function, or dramatic or musical performance, or it may be based on the cinematographic version of literary or dramatic work, however, in such a case, if the literary or dramatic work is copyrighted, the consent/licence of the owner of such work is required to make a cinematograph film.
A cinematograph film as defined in Section 2 (f) of the Act, includes any work produced by any process analogous to cinematography. Thus, the exhibition of film in a T.V., through video tapes in which a cinematograph film is recorded will also fall within the definition of cinematograph film.[Dinesh Kumar Hanumanprasad Tiwari v. State, AIR 1984 Bom. 14].
Video and Television, both are Cinematograph films. [Raj Video Vision v. K. Mohan Krishna, AIR 1998 Mad. 294].
Video and Television are Cinematograph films. [Balvinder Singh v. Delhi Administration. (1996) S.N.P. 421].
(xiv) Adaptation.- Section 2 (a) defines ‘adaptation’ as under “adaptation” means.-
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work,
(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise
(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a news-paper, magazine or similar periodial.
(iv) in relation to a musical work any arrangement or transcription of the work, and
(v) in relation to any work any use of such work involving its re-arrangement or alteration.
In the case of a dramatic, literary, or musical work, not being a computer programme, copyright is an exclusive right to make any adaptation of the work (vide, Section 14 (a) (vi)].
In the case of an artistic work, copyright means an exclusive right to make any adaptation of the work [vide, Section 14 (c) (v)].
The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy-
(i) in order to utilize the computer programme for the purpose for which it was supplied, or,
(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied, such acts shall not constitute an infringement of copyright: [vide, Section 52 (aa) of the Copyright Act, 1957).
Similarly, the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use, such acts do not constitute infringement. (see Section 52 (ad)].
Copyright subsists in original adaptation of another literary work. because the adaptation itself can be a literary work. If the owner of a copyright in an original work licences another person to arrange or adopt it. for example to base a film script or play upon a book, the copyright is the arrangement then vested in the arranger, who has originated it.
Copyright gives the owner various rights, such as right to public performance, and display of his work, right to exclude others from using an unauthorised copy of his official work, right to distribute his work. adaptation right, etc. Adaptation in relation to a computer programme. means any arrangement or altered version of the programme or translation of it. Even if the object code is not original work, it will be protected by copyright as an adaptation of such a work, and since adaptation right is a restricted right available to the owner of copyright, copying an adaptation of a computer programme will infringe the copyright of the owner.
An alteration in the original work to produce a new work is generally termed as adaptation. Many countries protect the adaptation right of the copyright owner. However, there exists a difficulty in protection of adaptation right on the Internet due to vastness and depth of the material available on the Internet.
(xv) Infringing Copy. Section 2 (m) defines “infringing copy” as under-
“infringing copy” means-
(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof, otherwise than in the form of a cinematographic film.
(ii) in relation to a cinematographic film, a copy of the film made an any medium by any means.
(iii) in reation to a sound recording, any other recording, embodying the same sound recording, made by any means.
(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, the sound recording cinematographic film of such programme or performance. or a
if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act.”
Section 53 of the Act provides for importation of infringing copies as under:-
Importation of infringing copies.-(1) The Registrar of Copyrights on application by the owner of the copyright in any work or by his duly authorised agent and on payment of the prescribed fee, may, after making such inquiry as he deems fit, order that copies made out of India of the work which if made in India would infringe copyright shall not be imported.
(2) Subject to any rules made under this Act, the Registrar of Copyrights or any person authorised by him in this behalf may enter any ship, dock or premises where any such copies as are referred to in sub- section (1) may be found and may examine such copies.
(3) All copies to which any order made under sub-section (1) applies shall be deemed to be goods of which the import had been prohibited or restricted under Section 11 of the Customs Act. 1962 and all the provisions of the Act shall have effect accordingly.
Provided that all such copies confiscated under the provisions of the said Act shall not vest in the Government but shall be delivered to the owner of the copyright in work.
The word import means bringing into India from outside India and it is not limited to importation for commerce only, but includes importation for transit across the country [Gramophone Company of India Ltd BB Pandey, AIR 1984 SC 667).
Similarly, Chapter VIII of the Copyright Rules, 1958 provides for importation of infringing copies-Rules 22 and 23 runs as under-
“Importation of infringing copies (Rule 22) -Every application under sub-section (1) of Section 53 shall be made in accordance with Form VI and shall be accompanied by the fee specified in the Second Schedule Procedure for examination of infringing copies (Rule 23)-The Registrar of Copyrights or the person authorised by him in this behalf shall, in taking action under sub-section (2) of Section 53, act in collaboration with customs authorities.”
Section 58 of the Act enacts the rights of owner against persons dealing was infringing copies as follows:-
“Rights of owner against persons possessing or dealing with infringing copies-All infringing copies of any work in which copyright subsists and all plates used or intended to be used for the production of such infringing copies, shall be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of possession thereof or in respect of the conversion thereof:
Provided that the owner of the copyright shall not be entitled to any remedy in respect of conversion of any infringe copies, if the opponent proves.
(a) that he was not aware and had no reasonable ground to believe that copyright subsisted in the work of which such copies are alleged to be infringing copies: or
(b) that he had reasonable grounds for believing that such copies or plates do not involve infringement of the copyright in any work.”
Further, Section 64 enacts as follows:-
“Power of police to seize infringing copies (1) Any police officers, not below the rank of a sub-inspector, may, if he is satisfied that an offence under Section 63 in respect of the infringement of copyright in any work has been, is being, or a likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purposes of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a Magistrate
(2) Any person having an interest in any copies of a work or plates seized under sub-section (1) may, within fifteen days of such seizure, make an application to the Magistrate, for such copies or plates, being restored to him and the Magistrate after hearing the applicant and the complainant and making such further inquiry, as may be necessary, shall make such order on the application as he may deem fit.”
Apart from this Section 63-B of the Act provides as follows:-
“Knowing use of infringing copy of computer programme to be an offence. Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that where the computer programme has not been used for gain or in the course of trade or business, the Court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.”
(xvi) Work of joint authorship. Section 2 (z) defines work of 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.”
Thus a work of joint authorship connotes a work produced by the concerted efforts of two or more authors, wherein contribution of each author is not distinguishable. Joint authorship occurs when collaborators have worked to produce copyright work of a single kind “in prosecution of a pre-concerted joint design”. Co-ownership may arise in two ways:
(1) because the copyright work is produced by joint authors, or.
(2) because an interest is assigned to more than one person. Joint authorship does not arise where a creative work is compounded of parts that demand discrete form of mental activity.
Copyright subsists in works of joint authorship. Each joint author of a work. enjoys an equal undivided share in the copyright. Such authors possesses the copyright as “tenants in common” rather than as joint tenants. However, one joint author cannot reproduce the work himself or grant licences to other to reproduce that, even without the consent of the other. Notwithstanding, a joint author may by himself institute infringement proceedings.
For joint authorship it is essential that there should be a common design and co-operation in carrying out the design. Thus, one who only suggests the idea of subject-matter of the work cannot be considered a joint author. Tate v. Thomas, (1921) | Ch. 503].
BCo-authorship. One who revises and makes some minor addition to the work of another or one who makes alteration for making the work, more attractive cannot claim the co-authorship with the author. [Levy v. Rutley. 1871 LR 6 CP 523).