Q. 4. What do you mean by Copyright? Can it be assigned ?
Ans. Meaning of Copyright. Copyright is Copyright-Copyright a creation of statute. It is a form of intellectual property. It is a negative right, since such right prevents others from copying or reproducing a work. It is a monopolistic right. Section 13 of the Act envisages certain works in which copyright subsists. Section 14 provides for meaning of copyright. Ipso facto copyright means the right to copy or reproduce the work in which copyright subsists. It is an exclusive right to do or authorise others to do certain acts in relation to-
(a) literary, dramatic or musical works;
(b) artistic works.
(c) cinematograph films:
(d) computer programme/software programme,
(e) sound recording
More so, the exclusive right for doing the respective acts extends not only to the whole of the work, but to any substantial part thereof, or to any translation or adaptation thereof.
Right of protection of copyright extends to original, literary, dramatic, artistics and sound recording. [Venktesh Films Pvz. Ltd. v. Vipul Amritlal Shah, AIR 2010 NOC 610 Kar.].
Rights of copyright owner. The ‘copyright’ connotes the exclusive right to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, i.e.
(a) Re: Literary, Dramatic or Musical Work.-
(i) To reproduce the work in any material form including the storing of it in any medium by electronic means.
(ii) To issue copies of the work to the public not being copies already in circulation.
(iii) To perform the work in public or communicate it to the public
(iv) To make any cinematograph film/sound recording in respect of the work.
(v) To make any translation/adaptation of the work.
(b) Re: Computer Programme.-
(i) To do any of the acts specified in clause (a) of Section 14.
(ii) To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme.
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
(c) Re: Artistic Work.-
(i) To reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimension 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-clauses (i) to (iv).
(d) Re: Cinematograph Film.-
(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.
(d) Re: Sound Recording.-
(i) To make any other sound recording embodying it.
(ii) To sell or give on hire, or offer for sale or hire any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions.
(iii) To communicate the sound recording to the public.
No copyright in ‘idea’. Copyright subsists only in the material form in which the ideas are translated. However, there is no copyright in idea. Thus, copyright subsists only in form and not in idea. A mere idea cannot be the subject-matter of copyright. More so, there is no copyright in abstract ideas, themes or plots of a literary work or films etc. [R.G. Anand v. Delux Films, AIR 1978 SC 1613].
Copyright Protection. Whether a work is entitled to copyright protection there remains through practical test that what is worth copying is prima facie work protecting. [University of London Press v. University Tutorial Press, (1916) 2 Ch. 609).
The guidelines for the authors and publishers of text books by the Education Board prescribing the syllabus are held to be not original work Nag Book House v. State of West Bengal. AIR 1982 Cal 245].
It has been held that Section 14 (d) (ii) authorises the producer to sell or give on hire or offer for sale on hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions. [Raj Video Vision v. K. Mohan Krishna. AIR 1998 Mad 294].
The question of copyright arises only when the subsequent work appears to be a copy of the original. [R. G. Anand v. Delux Films. AIR 1978 SC 1613; Bharti Cellular Ltd. v. Jai Distilleries Pvt. Ltd.. AIR 2007 Bom 331].
Court’s Judgments. There is no copyright in judgments delivered by Courts either of Government or Court. However, the judgments incorporated in a Law Reporter is worth protectable, as such work involves skill. [Infosys Solutions v. Kerala Law Times, AIR 2007 Ker 1].
There is no copyright in publication of reports of judgments. [Eastern Book Company v. D. G. Modak, (2008) 36 P.T.C. I SC).
Assignment of Copyright. Copyright is a personal movable property. It is intangible property. It is a beneficial interest. However, the owner of copyright has actual or constructive possession of the same. Thus, it hardly comes within purview of actionable claim as recognised by the Transfer of Property Act, 1882. Followings are the mode of assignment of copyright-
(i) Transfer by assignment;
(ii) By testamentary disposition
(iii) By operation of law
(iv) Copyright owner if dies intestate, same power to LRs
Assignment is a matter of right of copyright owner. Section 18 of the Act deals with the assignment of copyright. However, Section 19 deals with the mode of assignment, Section 19-A deals dispute with respect to assignment of copyright, and Section 20 deals with transmission of copyright in manuscript by testamentary disposition.
Scope of Assignment.- Section 18 owner of a copyright of an existing work may assign to any person the of the Act envisages that the copyright in the work. The owner may assign whole of such rights or parts thereof. It may be without limitations or with limitations. Such assignment may be in respect of whole of copyright or for any part thereof and may be limited to a particular territory or whole country.
Future Work.- Regarding a future work, the prospective owner may also assign the work, but in such a case, the assignment will take effect only when the work comes into existence.
Elements of Assignment- Section 19 provides for valid assignment, it lays down that, –
(i) assignment must be in writing;
(ii) assignment must be signed by assignor, or
(iii) signed by duly authorised agent of assignor.
Assignment of copyright must specify the rights assigned and the duration and territorial extent of such assignment.
Period of Assignment. Where the period of assignment of copyright is not stated it will be deemed to be for 5 years from the date of such assignment.
Disputes regarding assignment of copyright.- Section 19-A provides that disputes with respect to assignment of copyright shall be decided by Commercial Court. More so, on receipt of complaint from the assignor, and after holding such inquiry, as the Board may deem necessary, it may revoke the assignment.
Licence and Assignment. The copyright owner may grant an interest in the work by a licence. Such licence may be of the whole of work or a part thereof. The author of a novel may grant licence for reproduction of work, translation of work and dramatisation of work to different persons. A licence is distinguished from assignment.
Point of Distinction
1. Licence enjoys particular right subject to conditions of licence.
2. Licensee does not become owner of licensed rights.
1. Assignee enjoys all the rights of the original owner.
2. Assignee becomes the owner of interest assigned.
Case Laws. It has been held that the assignment of cinematograph is valid. [Avtar Singh & Co. v. Venkatraman, AIR 2003 (NOC) 499 (Mad)]. In Gramophone Company of India v. Shanti Film Corporation, AIR 1997 Cal 63, it has been held that copyright is a beneficial interest in movable property and it can be transferred by assignment. Mere acceptance of remuneration or delivery of manuscript does not constitute assignment of copyright. [Thankappan v. Vidyarambhan Press & Book Depot, (1968) Ker LT 440].
Q. 5. What is Copyright Society? Examine the functions of Copyright Society?
Ans. Copyright Society and its functions. The Copyright (Amendment) Act, 1994 substituted “Copyright Societies” in lieu of “Performing Rights Societies” and extended the scope of its operation. The Copyright Societies are authorised to issue and grant licenses not only in respect of performance of the work in public but also in respect of all rights relating to any class of work in which a copyright subsists during that period.
The objects of Copyright Societies are to protect and promote the interests of the right owners of the copyright and neighbouring rights and the users of the copyright work. The Copyright Act prohibits any person or society to deal in the copyright such as granting of licenses and permission etc. unless such society is registered under the Act.
Any association of persons, whether incorporated or not, comprising seven or more owners of copyright formed for the purpose of carrying on the business of issuing or granting licences in respect of any class of work in respect of which copyright subsists or in respect of any other right conferred by the Act may file with the Registrar of Copyrights on an application in Form II-C for submission to the Central Government for grant of permission to carry on such business and for its registration as a Copyright Society.
“Copyright business” means the business of issuing and granting licence in respect of any class of works in which copyright or any other right conferred by the Act subsists.
An applicant for registration of it as a Copyright Society will not be eligible to be considered for registration unless-
(i) The instrument by which the applicant is established or incorporated creates a commitment of it to deal with only copyright business and other activities ancillary thereto, and
(ii) the applicant is willing to comply with the provisions of the Act and the Rules made thereunder.
Copyright Society is a legal body which protects the interest of owners of the work in which copyright subsists. The Copyright Societies give assurance the creative authors of the commercial management of their works.
The authors of creative works licence a publisher to publish the work on a royalty basis. This also leads to infringement of the work anywhere in India or abroad. Therefore, it is extremely difficult for the owner of the work to prevent such infringement. To overcome such difficulty owners of copyright works have formed societies to licence their works for performance or communication to the public. Copyright Society means a society registered under Section 33 (3) of the Act.
The Copyright Societies are also authorised to watch out for infringement of the copyright and take appropriate legal action against the infringers.
The Copyright Societies discharge the following functions:
1. They grant license of the copyright in the work for reproduction, performance or communication to the public.
2. They locate the infringement of the copyright and initiate legal proceedings.
To regulate these activities of such Copyright Societies, Sections 33 to 36-A have been enacted in the Copyright Act, 1957.
Section 33(1) lays down that no person or association of persons is allowed to carry on the business of issuing or granting licenses in respect of any work in which copyright subsists or in respect of any rights conferred by the Act except under a registration.
However, an owner of copyright shall, in his individual capacity, continue to have the right to grant licenses in respect of his own works with his obligation if any, as a member of the Registered Copyright Society.
An application may be made to the Registrar of Copyright. Every application should satisfy the conditions. And then the Registrar shall forward the application to the Central Government which may, having regard to the interests of the author and other owners of rights under this Act, the interest and convenience of the public and in particular of the group of persons who are most likely to seek licenses in respect of the relevant rights and the ability and professional competence of the applicants, register such association of persons as a Copyright Society subject to conditions as may be prescribed.
Central Government may not ordinarily register more than one Copyright Society to do business in respect of the same class of works.
Section 33(4) provides that the Central Government, if satisfied that the Copyright Society is detrimental to the interest of the owners of right concerned, the Central Government may cancel registration of such society after such inquiry as may be prescribed.
Tariff Scheme by Copyright Societies. Every copyright society is under obligation to publish its tariff scheme. Any person who is aggrieved by the tariff scheme may file an appeal to the Commercial Court and the Board may, if satisfied after holding such inquiry as it may consider necessary, mark such orders as may be required to remove any unreasonable element anomaly or inconsistency in the tariff scheme.
The aggrieved person will pay to the Copyright Society any fee as may be prescribed that has fallen due before making an appeal to the Commercial Court and continue to pay such fee until the appeal is decided and will not issue any order staying the collection of such fee pending disposal of the appeal. The Commercial Court may after hearing the parties fix an interim tariff and direct the aggrieved parties to make the payment accordingly pending disposal of the appeal.
Section 34 of the Copyright Act, 1957 deals with the administration of rights of author and other owners of right by Copyright Society.
A Copyright Society is competent to enter into an agreement with any foreign society or organisation administering right corresponding to rights under this Act, to entrust to such foreign society or organisation the administration in any foreign country of rights administered by the said Copyright Society in India, or for administering in India the rights administered in a foreign country by such foreign society or organisation. This is subject to the condition that there will be no discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and foreign works.
A copyright society may-
(i) issue licences under Section 30 in respect of any rights under this Act,
(ii) collect fees in pursuance of such licences;
(iii) distribute such fees among owners of rights after making deductions for its own expenses;
(iv) perform any function consistent with the provisions of Section 35.
Every Copyright Society will be subject to the collective control of the author and other owners of rights whose rights it administers in India. This provision does not apply on foreign society or organisation. The Copyright Society may obtain the approval of such author and other owners of rights for its procedures of collection and distribution of fees; obtain approval for the utilisation of any amounts collected as fees for any purposes other than distribution to the author and other owner of rights, and provide to such owners regular, full and detailed information concerning all its activities, in relation to the administration of their rights. All fee distributed among the owners of rights should be distributed in proportion to the actual use of their works.
Every copyright society should submit to the Registrar of Copyrights. such returns as may be prescribed. Any officer duly authorised by the Central Government may call for any report and also call for any records of any copyright society for the purpose of satisfying himself that the fees collected by the society in respect of rights administered by it are being utilised or distributed in accordance with the provisions of the Copyright Act (Section 36).
The provision relating to Copyright Society will not affect any rights. and liabilities in any work in connection with Copyright Society which had accrued or were incurred on or before the day prior to the commencement of the Copyright (Amendment) Act, 2012, or any legal proceedings in respect of any such rights or liabilities pending on that day [Section 36-A, as substituted by the Copyright (Amendment) Act, 2012].
Every Copyright Society must maintain proper accounts of the fees and royalties collected in a financial year, payments made out of such collections to the owners of rights and other expenditure incurred for meeting administrative expenses and related matters with the approval of the owners of rights.
Q. 6. Explain the procedure of registration of copyright. Is the registration of copyright essential?
Ans. Registration of Copyright. Chapter X. The Copyright Act, 1957, i.e., Sections 44 to 50-A and Chapter VI of the Copyright Rules, 1958, i.e., Rules 15 to 20 deal with Registration of copyright.
Essentials for Registration. Rule 15 provides for six separate parts of Register of Copyrights. More so, Rule 16 of the Rules provides for procedure of registration, as under:-
(1) Application for registration of copyright should be made in accordance with prescribed Form IV.
(2) Such application must be in respect of one work only, and must be in triplicate and must be along with specified fee.
(3) The person applying for such registration has to give notice of his application to every person who claims or has any interest in the subject- matter of the copyright or disputes the rights of the application to it.
(4) If within 30 days of the receipt of such application, of the Registrar receives no objection to such registration, he shall, if satisfied about the correctness of the particulars given in the application, enter such particulars in the Register of Copyright.
(5) If the Registrar is not satisfied about the correctness of the particulars given in the application, ap he may hold such inquiry deems fit. into as he
Register of Copyright. Section 44 of the Act envisages that there shall be kept at the copyright office a register in the prescribed office to be called the Register of Copyright. Such Register shall consist of following entries:-
(i) Name and titles of work,
(ii) Names and address of authors,
(iii) Names and addresses of publishers and owners of copyright, and
(iv) such other particulars as may be prescribed.
Entries in Register of Copyrights. The author/ publisher/ owner/other person interested in the copyright in any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar for entering particulars of the work in the Register of Copyrights. On receipt of such application, the Registrar may after holding such inquiry, as he may deem fit, enter the particulars of the work in the Register of Copyrights.
Indexes. Section 46 of the Act provides that there shall also be kept at the copyright office such indexes of the Register of Copyrights as may be prescribed.
Rule 18 of the Copyright Rules, 1958 provides in this regard that there shall be the following indexes for each part of the Register of Copyrights, namely,-
(i) a general Author index,
(ii) a general Title index,
(iii) one Author index of works in each language, and
(iv) a Title index of works in each language.
Form and Inspection of Register.-Section 47 of the Act envisages that Register of Copyrights and indexes shall at all reasonable times be open to inspection and any person shall be entitled to take copies of or makes extracts from such register or indexes on payment of such fee and subject to such conditions as may be prescribed.
Evidentiary value of Register of Copyrights. The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein. vide Section 48].
It has been held that on registration of copyright, the Register of copyrights to be prima facie evidence of particulars entered therein, [Manoj Cine Production v. A. Sundaram, AIR 1976 Mad 22].
Correction of Entries in Register. The Registrar of Copyrights on his motion or on an application of any interested person, may amend or alter the Register of Copyrights by.-
(a) correcting any error in any name, address or particulars, or
(b) correcting any other error which may have arisen therein by accidental slip or omission.
Rectification of Register. The Commercial Court, on application of the Registrar of Copyrights or of any person aggrieved may order rectification of Register of Copyrights by-
(a) the making of any entry wrongly omitted to be made in the register, or
(b) expunging of any entry wrongly made in or remaining on the register, or
(c) the correction of any error or defect in the register.
It has been held that for such purposes, Appellate Board is a Tribunal and not a Civil Court and it enjoys quasi-judicial powers [Devendra Soma Bhai Nayak v. Accurate Transheet Pvt. Ltd.. AIR 2003 Guj 1411.
Publication of Entries. Section 50-A provides for publication of entries in the Regiser of Copyrights etc. in the Official Gazette. Description of entries are as under:
(i) Every entry made in Register of Copyrights or particulars of any work entered under Section 45;
(ii) Correction of every entry made in such register under Section 49;
(iii) Every rectification ordered under Section 50.
Whether Registration Essential. The registration of copyright has not been made necessary under the Copyright Act, 1957. More so, the copyright exists whether the registration is done or not, and the registration is merely a piece of evidence as to when a certain author sarted claiming copyright in some artistic or some other work. [Glaxo Operations U.K. Ltd. v. Samrat Pharmaceuticals, AIR 1984 Del 265].
Similarly, it has been held that registration of copyright is not essential. More so, absence of such registration does not preclude rights of owner of copyright. [Satsang v. Kiranchandra, AIR 1972 Cal 533].
Further, non-registration of a work does not debar action against infringement of copyright. [A. Sundaram v. A.C. Trilok Chandra, (1973) 2 MLT 290].
There is no indication under the Copyright Act, 1957, that for acquisition of copyright registration of work is necessary. [Manoj Cine Production v. A. Sundaram, AIR 1976 Mad 22].
More, so, it is not necessary under Section 44 that a work must be registered. [Nav Sahitya Prakashan v. Anand Kumar, AIR 1981 All 200].
Apart from this, the registration of copyright is no pre-condition for an action against infringement of copyright. [R. Mahovan v. S.K. Nair, AIR 1988 Ker 39].
Q. 7. What do you understand by infringement of copyright? Discuss the civil and criminal remedies available against infringement of copyright?
Ans. Infringement of copyright.-The exclusive right of copyright owner includes publication, reproduction, storage, adaptation, translation and performance of work, etc. Where any of the aforesaid acts relating to work is carried out by a person other than the owner without a licence from the owner or a competent authority under the Act, it constitutes an infringement of copyright in the work.
Section 51 of the Act envisages when a copyright is infringed, i.e.,
(i) Violation of Copyright. When any person without a licence or even in contravention of conditions of a licence, does anything. the exclusive right to do which is by this Act conferred upon the owner of the copyright.
When any person with or without a licence permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.
(il) Infringing Copies. Following acts also constitutes infringement. When any person.-
(a) makes for sale or hire or sells or lets for hire, or by way of trade displays or offers for sale or line, or
(b) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright; or
(c) by way of trade, exhibition in public, or
(d) imports into India.
any infringing copies of the work.
The alleged infringement may not be an exact or verbation copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy. [R. G. Anand v. Delux Film, AIR 1978 SC 1613].
‘Imports into India’ connotes importation of something into India from outside. [Gramophone Company of India Ltd. v. Virendra Kumar Bahadur Pandey, AIR 1984 SC 667].
Similarly, where books published in U.K. was imported from Africa into India, and were sold into India it would amount to an infringement of copyright Penguin Books Ltd. v. India Books Distributors. AIR 1985 Del 291.
More so, a copyright in a work shall be deemed to be infringed when any person does anything, the exclusive right to do which by the Act is conferred upon the owner of the copyright. [K. E. George v. C. Cherian. AIR 1986 Ker. 12].
In Ishi Khosala v. Anil Agarwala, AIR 2007 (NOC) 1153 (Del.), plaintiff was using the trade mark of ‘Whole Foods’. However, respondents started to use the mark of “Diet Whole Foods”. Held, that it was infringement of copyright work because such was creating confusion.
But where claims in plaint was found to be only regarding design and not of copyright, rejection of plaint was held proper as there was no cause of action. [Ipeg Inc. v. Kay Bee Engineers, AIR 2016 Gujarat 104].
Factors to determine infringement. For determining the question of infringement, the following factors should be taken into account.-
(a) Copying. Sub-conscious or indirect copying-casual connection.
(b) Substantial copying.-
-unaltered copying:
-Nature and extent of plaintif’s works;
-Character of plaintiffs and defendant’s works;
-Extent of defendant’s alteration;
-Manner in which defendant has advantage of plaintiff’s work; etc.
Elements of infringement. There are two elemental factors which constitutes an infringement.-
(i) Sufficient Objective Similarity. There must be sufficient objective similarity between the infringing work and the copyright work.
(ii) Source. The copyrighted work must be the source from which the infringing work is derived but it need not be the direct source.
Substantial copying. In order to decide whether a work is substantial copying of the original one, following four factors have to be considered,-
(i) Material Taken. The volume of material taken must be vital, keeping in mind that quality is more important than quantity.
(ii) Quantum of subject-matter. How much of such material is the subject-matter of copyright and how much is not.
(iii) Animus Jurandi. Whether there has been an animus jurandi on the defendant’s part, i.e., an intention to take for the purpose of saving himself labour.
(iv) Competing Extent. The extent to which the plaintiff’s and defendant’s work are competing.
Fair dealing. There are certain acts which do not constitute infringement of copyright. Fair dealing is one of them (see Section 52). In all cases of fair dealing, the reproduction of extracts of the work, or its recitation or performance is involved. How much of the reproduction may be deemed as fair is a question which can be determined only having regard to the circumstances of each case.
Remedies against infringement. The owner of copyright may avail of both civil and criminal remedies under the Act against infringement of his copyright.-
(A) Civil Remedies. The owner of a copyright on infringement of work shall be entitled to all such remedies by way of injunction, damages, accounts, and otherwise.
However, if the defendant proves that at the date of infringement he was neither aware nor had reasoable ground for believing that copyring subsisted in the work, the plaintiff shall be entitled for remedy of injunction or a decree for the whole or part of the profits made by the defendant by sale of infringing copies [vide Section 55).
Temporary injunction can be granted where right of plaintiff is sought to be infringed by defendant by using or referring test results. [M/s Pearson India Education Service Pvt. Ltd. Bangalore v. M/s New Public Solutions LLP, Bangalore, AIR 2016 Kar. 25].
Section 57 provides for author’s special right. It envisages that independently of the author’s copyright and even after the assignment either of wholly or partially of copyright, the author of a work shall have the right-
(a) to claim authorship of the work, and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work.
Section 60 of the Act provides for remedy in the case of groundless threat of legal proceedings. Where any person claiming to be owner of copyright, by circulars, advertisements or otherwise threatens any other person with any legal proceedings, thereby such person aggrieved, may notwithstanding anything contained in Section 34 of the Specific Relief Act, 1963, institute a declaratory suit that the alleged infringement to which the threats related was not, in fact, an infringement of any legal rights of the person making such threats and may in any such suit, may obtain an injunction against the continuance of such threats and recover damages, if any.
Case law. The remedy of injunction can be joined either with that of damages or accounts, but the remedies of accounts and damages can in no case be joined. [P. Lakshmikantham v. Ram Krishna Pictures, AIR 1981 AP 224].
Section 57 speaks of author’s special rights only and it does not provide for publisher’s or owner’s special rights. Further the ‘action prejudicial to his honour or reputation’, within the ambit of Section 57 (1)
(b) is also referable to the author only. [Wiley Eastern Lid. v. Indian Institute of Management, 1995 PTR 53].
Once a suit is filed for infringement of the copyright by the person who has given the threat, the suit under Section 60 becomes infructuous as the section ceases to apply in such a situation, [Super Cassette Industries Ltd. v. Bathlu Cassettes India (P) Ltd., AIR 1994 Del 237].
The civil remedies as provided under Section 55 are aimed at to protect copyowner. Hawkins Cookers Lid. v. Mazylook Appliances Co.. AIR 2001 (Del) 191.)
Section 57 recognises and protects the intellectual property of an author at most. [Manu Bhandari v. Kala Vikas Picture (P) Ltd., AIR 1987 Del 13].
The suit for infringement of copyright may be instituted by the copyright owner or its manufacturing agent. (Exfer S.A. v. A.U. Pharma Laboratories Ltd., AIR 2004 SC 1682).
(B) Criminal Remedies. The Copyright Act, 1957, provides for various criminal remedies against infringement of copyright,-
(a) Offence of infringement. Section 63 of the Act provides that any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred by this Act except the right conferred by Section 53-A shall be punishable with imprisonment and fine.
(b) Seizure of infringing copies. Any police officer may seize infringing copies of work without warrant wherever found and as soon as practicable be produced before a Magistrate.
Any person who knowingly makes or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with two years imprisonment and with fine [vide Section 65]. More so, Section 66 of the Act empowers Courts for disposal of infringing copies or plates for purpose of making infringing copies.
(c) Offences by Companies. In a case where offence under the Act has been committed by a company, every person who at the time the offence was committed was in-charge of, and was responsible to the company, for the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence, and officer of the company shall be liable to be proceeded against and punished accordingly. [vide Section 69].
(d) Cognizance of Offences. No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence under the Copyright Act, 1957.
Case Laws. (i) Prosecution for infringement. Unlike suits for infringement of copyright which can be instituted at the place where the plaintiff resides, etc. a prosecution for the offence of infringement of copyright can be tried only at the place where the offence is committed and not anywhere else. Mobarik Ali v. State of Bombay, AIR 1957 SC 857).
(ii) Restoration of seized infringing copies. Section 64 (2) provides safeguards when the person aggrieved can make an application to the Magistrate within 15 days of such seizure by the police officer for restoring the seized copies to him. It does not permit or facilitate infringement of any of the rights of the person alleged to have committed infringement. [Girish Gandhi v. Union of India, AIR 1997 Raj 78].
(C) Partnership firm also liable. As per Section 69, Explanation the word ‘company’ is used in the section in a special sense, and includes a partnership firm or other association of firms. Thus, like a company, a firm is also criminally liable in its own name apart from the partners. [J.N. Bagga v. All India Reporter Ltd.. AIR 1969 Bom 302].
Jurisdiction to try suit. The Courts under whose territorial limits infringing copies of the work are being sold, may try the suit for infringement against. [P.M. Diesels Ltd. v. Patel Field Marshal Industries, AIR 1998 Del 225].
Q. 8. Answer the following questions.-
(i) “Copyright is an intangible right granted to the author for multiplying the copies of the same, publishing and selling them.” Is this statement true?
(ii) Can there be a criminal remedy available to the owner of a copyright ?
(iii) Can an author relinquish a copyright ?
(iv) What shall be the duration of a copyright in case of a photograph?
(v) Can the owner of a copyright grant a licence in it?
(vi) Is the rectification of the register of copyrights permissible ?
(vii) For how many years after the death of the author of the copyright shall subsists?
(viii) Which are the Courts which can take cognizance of the offence under the Act?
(ix) What is the test to determine the violation of the copyright ?
Ans. (i) Copyright owner-Right as such-Scope of. Copyright is a form of intellectual property. It is intangible right and an interest in movable property. It is a negative right and monopolistic right, i.e.. a right to prevent others from copying or reproducing the work. The object of copyright law is to protect the author of copyrighted work from unlawful reproduction of the said work. Thus, copyright is an exclusive right with object to encourage authors, composers and artistes to reproduce the works for the benefit of public. According to Section 14 of the Act, copyright connotes the exclusive right to do or authorise others to do certain acts in relation to-
(i) literary, dramatic or musical works,
(ii) artistic works.
(iii) cinematograph film,
(iv) sound recording.
Such exclusive right for doing the respective acts extends not only to the whole of the work but to any substantial part thereof or to any translation or adaptation thereof.
In Raj Video Vision v. K. Mohan Krishna, AIR 1998 Mad 294, the Madras High Court propounded that according to Section 14 (d) (ii) of the Act confers power on producer of a cinematograph film 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.
(ii) Criminal Remedy available to copyright owner.- Sections 63 to 69 of the Copyright Act, 1957 provides for criminal remedy against infringement of copyright. Under Section 63, any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred by this Act shall be punishable with imprisonment and with fine. Similarly, Section 64 gives power of police to seize infringing copies.
In Girish Gandhi v. Union of India, AIR 1997 Raj 78, it has been held that Section 64 (2) provides the safeguards when the person aggrieved can make an application to the Magistrate within 15 days of such seizure, by the Police Officer for restoring the seized copies to him. It does not permit or facilitate infringement of any of the rights of the person alleged to have committed infringement. It cannot be said that provisions of Section 64 of the Copyright Act infringe any of the rights of the petitioner.
In Mobarik Ali v. State of Bombay, AIR 1957 SC 857, it has been observed the prosecution for the offence of infringement of copyright can be tried only at the place where the offence is committed and not anywhere else.
(iii) Right of author to relinquish copyright.-According to Section 21 of the Copyright Act, 1957. the author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice to the Registrar of Copyrights. Thereafter, such rights shall subject to Section 21 (3) cease to exist from the date of the notice. According to sub-section (3) of Section 21, the relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person or the date of the notice referred to in sub-section (1) of Section 21 of the Act.
(iv) Photograph-Duration of copyright.-A photograph being an artistic work is the subject-matter of copyright. However, a photograph of an existing photograph is not entitled to copyright protection because it is a mere copy.
After the Amendment of 1992, the term of copyright is now 60 years after the death of the author. But the 60 years rule does not apply to the author of cinematographic films, records, photographs, etc., because the author in these cases usually are corporate persons, association or companies and not individuals.
However, in the case of a phtograph, according to Section 25 of the Act, the copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the photograph is published.
(v) Licence by owner of copyright. The owner of a copyright in any existing work or the prospective owner of copyright in any future work may grant an interest in the copyright by a licence in writing signed by him or by his duly authorised agent. The licence is an authorisation of an act which without such authorisation would be an infringement. Normally, licencing involves some of the rights and not the whole, It is different from an assignment. In case of a licence, the licencee gets the right to exercise particular rights subject to the condition of the licence but he does not become the owner of the copyright.
Under Section 30, the owner of the copyright, in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent.
(vi) Rectification of Register by High Court.-The copyright Register may be rectified to remove error or defect therein.
Under Section 50 of the Copyright Act, 1957, the High Court on an application of the Registrar of copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by-
(a) the making of any entry wrongly omitted to the Register, or
(b) the expunging of any entry wrongly made in, or remaining on, the register, or
(c) the correction of any error or defect in the register.
(vii) Term of Copyright. (a) Subsistence of copyright in literary, dramatic or artistic works. The copyright shall subsist in such works published within the lifetime of the author until 60 years from the beginning of the calendar year, next following the year in which author dies. If the work is the result of joint authorship, the 60 years period will commence after the death of the author who dies last. [Section 22].
(b) Subsistence of copyright in anonymous/ pseudonymous works. In the matter of anonymous work or pseudonymous works, the term of copyright is until 60 years from the beginning of the calendar year (1st January) 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 60 years from the beginning of the calendar year next following the year in which the author dies. [Section 23].
(c) Subsistence of copyright in posthumous work. In the case where copyright subsists at the date of death of the author who dies last and the work or an adaptation of which has not been published before that date, copyright will subsist until 60 years from the beginning of the calendar year next following the year in which the work is first published. [Section 24].
(viii) Cognizance of offence.- No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class. shall try any offence under the Copyright Act, 1957.
(ix) Test to determine violation of Copyright. Violation of exclusive right of a copyright owner is infringement of his such exclusive rights. Copyright in a work shall be deemed to be infringed in following conditions,-
(i) If any person without a licence from the owner/Registrar of Copyrights does anything, the exclusive right to do that which is vested with the copyright owner or permits for profit any place to be used for the communication of the work to the public provided that he was not aware and had no reasonable ground for believing that such communication would be an infringement of copyright, or
(ii) If any person makes for sale or hire or by way of trade displays or offers for sale/hire or distributes either for trade purpose or to such an extent or to affect prejudicially, the owner of copyright, or by way of trade exhibits in public or imports into India, any infringing copies of the work.
What constitutes infringement. There are two elements, if present, which constitute an infringemen-
(a) Sufficient objective similarity between the infringing work and the copyrighted work.
(b) The copyrighted work must be the source from which the infringing work is derived, however, it need not be the direct source.
Resemblance with original one. The alleged infringement should not be an exact or verbatim copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy. R.G. Anand v. Delux Film, AIR 1978 SC 1613].
Reasonable apprehension of copying. The test to determine infringement of copyright is that where the reader, viewer or observer of a work apprehends that the work in question is copy or the original one. Hindustan Lever Ltd. v. Nirma Private Ltd., AIR 1992 Bom 1951.
Q. 9. State the meaning, characteristic and subject-matter of copyright and state the salient features of the Copyright Act, 1957.
Ans. Meaning of Copyright. ‘Copyright’ is a conclusive right given by law for a limited period to an author, composer, etc. to print, publish and sell copies of his original work.
Copyright is a creation of statute and is a form of intellectual property. It is monopolistic and negative right. Section 14 of the Copyright Act provides for meaning of copyright as under :-
“Meaning of Copyright.- “For the purpose” of this Act. “Copyright” means the exclusive right subject to the provisions of this Act to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely-
(a) in the case of a literary, dramatic, or musical work, not being a computer programme-
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation:
(iii) to perform the work in public or communicate it to the public:
(iv) to make any cinematograph film or sound recording in respect of the work:
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi).
(b) in the case of a computer programme-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work-
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions 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-clauses (i) to (iv).
(d) in the case of a cinematograph film-
(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 film. regardless of whether such copy has sold or given on hire on earlier occasions;
(iii) to communicate the film to the public.
(e) in the case of a sound recording-
(i) to make any other sound recording embodying it:
(ii) to sell or give or hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.
Explanation. For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.
Thus, in order to secure copyright protection what is required is that the author must have bestowed upon the work “sufficient judgment, skill and labour or capital”. (Walter v. Lane, (1900) AC 539].
Further, the labour, skill and capital expended should be sufficient to import to the product some qualify or character which the “raw material” did not possess and which differentiates the product from the raw material. [Nag Book House v. State of West Bengal, AIR 1982 Cal 245].
Characteristics of copyright. The characteristics of the copyright are as under-
(i) Exclusive right. Copyright means the exclusive right to do or authorize others to do certain acts in relation to (a) literary, dramatic or musical works; (b) artistic works (c) cinematograph films (d) sound recording. Such exclusive right for doing respective acts extends not only to the whole of the work, but to any substantial part thereof or to any translation or adaptation thereof.
(ii) Negative right. It is a negative right, i.e. a right to prevent others from copying or reproducing the work.
(iii) Monopolistic right. Copyright like patent, is a monopoly restraining the public from doing that which, apart from the monopoly, it would be perfectly lawful for them to do.
(iv) Copyright is a form of Intellectual Property Rights (1.P.R.) Just like trade mark, trade name and patent right, copying is a form of 1.P.R.
(v) Extensive right. Copyright is extensive is nature and it extends to replication of copies, etc.
(vi) Global Perspectives. Copyright is protectable even beyond the territories of India.
Subject-matter of Copyright. Section 2 (c) defines ‘artistic work’ as under:-
“artistic work” means-
(i) a painting, a sculpture, a drawing (including a diagram, maps, 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.”
Section 2 (y) defines ‘work’ as under-
‘work’ means any of the following works namely –
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording.
Section 13 of the Act provides for works in which copyright subsists-
“Works in which copyright subsists. (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say.-
(a) original literary, dramatic, musical and artistic works,
(b) cinematograph films, and
(c) sound recording.
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of Section 40 or Section 41 apply unless-
(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India,
(ii) in the case of an unpublished work other than the work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India, and
(iii) in the case of work of architecture, the work is located in India.
Explanation. In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all “the authors of the work.
(3) Copyright shall not subsists-
(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work.
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the sound recording is made.
(5) 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.”
The work of a Cine artist, his performance as an actor in a cinematograph film is not protected under the Copyright Act. It is the cinematograph film that enjoys protection along with its sound track. [Fortune Films v. Dev Anand, AIR 1979 Bom 17]. Similarly, the syllabi issued in a circular by the Board of Secondary Education of the State, containing guidelines of authors and publishers of text-books cannot be taken as original work being the product of labour, skill and capital of some men engaged by the Board. [Nag Book House v. State of West Bengal, AIR 1982 Cal 245).
More so, there is no copyright in translation of a work. [Blackwood & Sons Ltd. v. Parsuraman, AIR 1959 Mad 410].
Salient features of Copyright Act. The Copyright Act, 1957 is based on the Berne Convention. The Indian Act has borrowed its principle from U.K. law.
The Act has following salient features:-
1. The Act has created a copyright office and a Commercial Court to facilitate registration of copyright and to settle certain kinds of disputes arising under the Act and for compulsory licensing of copyright.
2. The Act defines various categories of works in which copyright subsists and the scope of the rights conferred on the author under the Act.
3. The Act lays down the term of copyright for different categories of work.
4. The Act defines infringement of copyright and provides civil and criminal remedies against infringement.
5. The Act emprovisioned first owner of copyright in a work.
6. The Act provides for international copyright.
7. The Act specifically provides for rights of author of work.
8. The Act specifically provides for civil and criminal remedies for infringement and damages therefor.
9. The Act deals with rights of performers and broadcasters.
10. The definition of copyright is enlarged to include the exclusive right to communicate works by radio-diffusion.
11. A cinematograph film will have a separate copyright apart from its various components namely story, music, etc.
12. An author assigning copyright in his work is allowed the option to re-acquire the copyright after seven years but before ten years of the assignment on the condition that he returns the amount received by him at the time of the assignment with interest thereon.
13. Provision is made for the issue of a general or special licence for public performances of any work by means of a radio-receiving set or a mechanical contrivance.
14. A licence may be issued to any liberary to make or cause to be made one copy of any book in which copyright subsists and which is not available for sale.
15. Provisions is made for regulating the activities of performing rights societies and also for controlling the fees, charges or royalities to be collected by them.
16. Certain rights akin to copyright are conferred on broadcasting authorities in respect of programmes broadcast by them.
17. International copyright relations which are based on international treaties will be regulated by specific orders to be made by the Central Government.
18. A fair dealing with any work for the purposes of radio summary or judicial proceeding will not hereafter constitute an infringement of copyright.
19. The normal term of the copyright is fixed to be the life of the author and a period of 25 years after his death as against the existing term of the life of the author, and a period of 50 years after his death. Shorter terms are fixed for anonymous or pseudonymous works, cinematograph films. mechanical contrivances, photographs etc.
Q. 10. Whether computer programmes and databases are copyrightable? Illustrate whether copyright protection is available to that?
Ans. Computer Programmes. Computer programmes are crucial in broad-range of industries and commerce. A computer programme generally refers to data representing instructions or statements, which causes the computer to to per perform a function. Computer programmes have both aspects; (i) authorship, as well as (ii) invention. Apparently, a computer programme subsists only in material form in which ideas are expressed and it is to be protected under copyright as copyright protects expression of ideas and not ideas themselves. Therefore, most countries have protected computer software and programmes under copyright.
In India, originally, the Copyright Act, 1957 did not protect computer programmes. More so, after the 1999 Amendment, it has given protection to computer programmes as literary works, which are already protected under copyright. The Amending Act has added the definitions of Computer and “Computer programme”. Section 2 (ffb) defines ‘Computer’ as under:
“Computer” includes any electronic or similar device having information processing capabilities.”
Section 2 (ffc) provides as under:-
“Computer programmes” means a set of instructions expressed in words, codes, schemes, or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.”
Further, Section 2 (o) of the Act provides that:
“Literary work” includes computer programmes, tables and compilations including computer databases.”
Computer database means a representation of information, knowledge, facts, concepts, or instructions in text, image, audio, video that are being prepared or have been prepared in a formalized manner and have been produced by a computer, computer system or computer network. [For details see explanation (ii), of Section 43 of the Information Technology Act, 2000].
Data base refers to a collection of data, works, information or other independent material arranged in a systematic or methodical way following some basic principle of compilation. Many countries have treated database as literary work and copyright protection has been extended to databases, provided they are original. Databases should be given copyright protection even if they are the compilation of non-original works as they are the result of skill and labour employed by the author in creating the work. In India, too, databases have been treated as literary works, as Section 2 (0) enacts that the literary work includes computer programmes, table and compilations including computer databases.” However, the Act is silent with regard to the structure of the database. The creator of the structure invests his intellectual creativity to formulate a particular format, lay out and get up for the fields allocated to store various types of information. The database structure is also implicit in the definition of database.
Section 14 (b) of the Act provides for meaning of copyright in computer programmes. Thus, for the purposes of the Copyright Act, 1957, “Copyright” means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following Acts in respect of a work or any substantial part thereof, namely:-
“14 (b). In the case of a computer programme.-
(i) to do any of the Acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.”
Section 52 of the Act envisages certain acts not to be infringement of copyright, which runs as under:
“Certain acts not to be infringement of copyright”-(1) The following Acts shall not constitute an infringement of copyright namely-
(a) a fair dealing with a literary dramatic, musical or artistic work, not being a computer programme for the purposes of-
(i) private use including research,
(ii) criticism or review, whether of that work or of any other work.
(aa) 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.
(ab) the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available.
(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied.
(ad) the making of copies of adaption of the computer programme from a personally legally obtained copy for non-commercial personal use…”
However, Section 63-B of the Copyright Act. 1957 runs as under:-
“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 when 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
Q. 11. Write short notes on the following:-
(i) Abridgement
(ii) Assignment of copyright
(iii) Fair dealing
(iv) Unpublished work
(v) Public Lecture
(vi) Compilation
(vii) Photograph
(viii) Scope of copyright protection
(ix) Ideas not copyrightable
Ans. (i) Abridgement. Section 2 (a) (iii) provides that “adaptation means 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 newspaper, magazine or similar periodical”.
Abridgement is a form of adaptations which can be done only with the authorization of a copyright owner. Abridgement of a literary work means -the conversion of the work into a dramatic work or any abridgement of the work.
The copyright owner has a right to make of any adaptations of the work. More so if copyright subsists in the original work, the reproduction of the adaptation will be possible only with the consent or licence of the copyright owner of the original work. However, the copyright in the such abridged work, vests in the abridger. So far so, genuine abridgement of a literary work is an original work and copyrightable.
Thus, a play published in short form by the defendants was held to be worth copyrightable.
Abridgement is actually the representation of an original work, in a much more precise and concise way by using compressed language. Thus, a digest of a literary work is an abridgement.
Requisite for copyright protection.-Followings are the requisites for copyright protection of an abridgement of an original literary work-
(i) Abridgement must be original.
(ii) Author of such work must have bestowed sufficient skill and labour thereupon.
However, the originality of work required as such, may be small. [Govindan v. Gopala Krishnan, AIR 1955 Mad 391].
(iii) To constitute a true and equitable abridgement, the entire work must be preserved in its precise import and exact meaning and then the act of abridgement is an exertion of the individuality employed in moulding and transferring a large work into a small compass, thus rendering it less expensive and more convenient both to the time and use of the reader.
(iv) Independent labour must be apparent and the restriction of the size of the work by copying some of its parts and omitting others confers no title to the authorship, and the result will not be an abridgement.
(v) To abridge in the legal sense of the word is to preserve the substance, the essence of the work in language suited to such a purpose, language substantially different from that of the original.
(vi) To make such an abridgement requires the exercise of mind, labour, skill and judgment brought into play and the result is not mere copying.
(vii) Thus, literary taste and skill requisite to compile properly and effectively is important. Mere process of selecting passages from works is not enough. The skill manifested in making or arranging selection is important. One may have borrowed much of the material from other, but if they are combined in a different manner, i.e., are original, one has a copyright in them. [Walter v. Lane, (1900) AC 539].
In Macmillan & Co. v. K.J. Cooper, AIR 1924 PC 75, it has been held that sufficient knowledge, labour, judgment, and literary skill had not been bestowed on the plaintiff’s book to be entitled to copyright except in the notes, and that the defendants had infringed copyright only in respect of notes. It was further held that neither the plaintiff’s book nor the defendant’s were abridgements, but only copied works, the plaintiff’s copied from the original work while the defendant from the plaintiff’s work.
(ii) Assignment of copyright.-Sections 18, 19 and 19-A deal with assignment of copyright, Section 18 of the Act provides:-
“Assignment of copyright.-(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole of the copyright or any part thereof:
Provided that in the case of assignment of copyright in any future work, the assignment shall take affect only when the work comes into existence:
Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work:
Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such work in any form other than for the communication to the public of the work alongwith the cinematograph cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void:
Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collec a collecting society for collection and distribution and any assignment to the contrary shall be hall be void.
(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act, as the owner of copyright and the provisions of this Act shall have effect accordingly.
(3) In this section, the expression “assignee”, as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.
Section 18 (2) provides that when copyright in a literary work, say to publish the work, is assigned to another, the assignee, as respects the right so assigned, is to be treated as the owner of the copyright and the provisions of the Act shall have effect accordingly. And, in such a case, the author or assignee, shall, only as respects the other rights specified in Section 14, which are not so assigned, continue to be treated as the owner of the copyright [Jogendra Nath Sen v. State, AIR 1991 Cal 308].
The copyright owner may assign one or more of his numerous rights or any combination of those rights. Publication rights and performing rights can be assigned to more than one person. Assignee of copyright can sue the owner of the copyright if the owner infringes the rights of the assignee. While assignment transfers title in the copyright the licence merely permits certain things to be done by the licencee. The assignce of the copyright is entitled to the right comprised in the copyright and the assignor can retain the rights not assigned to the assignee and shall be treated as the owner of the copyright in accordance to the provisions of the Act. No assignment shall be valid unless it is in writing signed by the assignor or by his duly authorised agent. The assignment of copyright in any work shall identify such work and shall specify the rights assigned and the duration and territorial extent of such assignment. The rights that are assigned should be specified and definite as per the provisions of the Act. The assignee of a copyright in respect of the rights assigned and the assignor in respect of rights not assigned are treated as owners of the respective right.
An assignment may be general, i.e., with or without limitations, and it may be for the whole term of copyright or any part thereof. Apart from this, a prospective owner of a copyright in a future work, may also assign the work in a similar manner, but in such a case the assignment will take effect only when the work comes into existence.
A mere agreement to assign does not operate to pass the property right but gives equitable rights, i.e., it operates as an equitable assignment of copyright as and when the work comes into existence. [Reoti Saran Sharma v. Numero Uno International, 1995 PTR 132].
A mere acceptance of remuneration or delivery of manuscript does not constitute an assignment of copyright. [Thankappan v. Vidyavambhar Press & Book Depot (P) Ltd., (1968) Ker LJ 440].
In determining whether there is only a licence to print, publish and sell copies or there is partial assignment of copyright, the Court has to look at meaning of an agreement, rather than the particular choice of words the real meaning of of the parties. [Dharam Dutt v. Ram Pal, AIR 1953 Punj 279].
(iii) Fair Dealing.- Fair dealing is an exception to infringement. Ideas, system, information thing of practical use are not subject to copyright. Thus reproduction or use of that do not amount to infringement thereof. Fair dealing, i.e.. fair use, is a valid defence to a charge of infringement. In all cases of fair dealing, the reproduction of extracts of the work, or its recitation or performance is involved. Under Section 52 of the Act, following acts amount to fair dealing-
(i) A fair dealing with a literary, dramatic, musical or artistic work, not being a computer programme for the purposes of (i) private use including research (ii) criticism or review, wherether of that work or of any other work.
(ii) A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events (i) in a newspaper, magazine or similar periodical, or (ii) by broadcast or in a cinematograph film or by means of photographs.
Explanation. The publication of a compilation of addresses or speeches delivered in public is not a fair dealing of such work within the meaning of this clause.
(iii) The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding.
(iv) The reproduction or publication tion of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature; exclusively for the use of the members of that Legislature.
(v) The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force.
(vi) The reading or recitation in public of any reasonable extract from a published literary or dramatic work.
(vii) The publication in a collection, mainly composed of non- copyright matter, bonafide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists:
Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.
Explanation. In the case of a work of joint ownership, references in this clause to passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person.
(viii) The reproduction of a literary, dramatic, musical or artistic work (i) by a teacher or a pupil in a course of instruction, or (ii) as part of the questions to be answered in an examination, or (iii) in answers to such questions.
(ix) The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.
(x) The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.
(xi) The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public.
(xii) The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or display of a work of architecture.
Determination of fair dealing.- Fair dealing is a question of fact and circumstances For such purposes the Court will take into consideration-
(a) the quantum and value of the matter taken in relation to the comments or criticism.
(b) the purpose for which it is taken.
(c) whether the work is published/unpublished, circulated, if unpublished.
(d) the likelihood of competition between the two works. [Beloff v. Pressdram Ltd., (1973) RPC 765]. The reproduction of a work with a few line of criticism will not be considered as fair dealing. [University of London Press v. University Tutorial Press, (1916) 2 Ch. 601].
In Hubbard v. Vosper, (1972) 2 WLR 389, it has been held that it is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they all together too many and too long to be fair? Then you must consider the use made of them. If used for comments, criticism or review, that may be fair dealing; if used to convey the same information as the author, for a vival purpose, that may be unfair. Next if you must consider the proportions to take long extracts, and attach short comments, it may be unfair. But short extracts and long comments, it may be fair. Other consideration may come to mind also. But after all it is said and done, it must be a matter of impression. As with, “fair comment” in the law of libel so with. “fair dealing” in the law of copyright.
(iv) Unpublished Work. Copyright shall submit even in the case of an unpublished work, other than work of architecture, if the author is at the date of the making of the work a citizen of India or domicited in India.
Section 31-A of the Act provides that in the case of an Indian work, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Commercial Court for a licence to publish such work or a translation thereof in any language.
However, before making such application, the applicant should publish his proposal in one issue of a daily newspaper in English having a circulation in the major part of India. Where an application is made to the Commercial Court under this section, it may, after holding such inquiry as may be prescribed, direct the Registrar of Copyrights to grant to the applicant a licence to publish the work or a translation thereof in the language mentioned in the application subject to the payment of such royalty and subject to such other terms and conditions as the Commercial Court may determine and thereupon the Registrar of Copyrights shall grant the licence to the applicant in accordance with the direction of the Commercial Court.
(v) Public Lecture. Section 2(g) defines ‘delivery’ as under:
“Delivery in relation to a lecture, includes delivery by means of any mechanical instrument or by broadcast.”
Section 2 (n) defines ‘lecture’ as follows-
“Lecture includes address, speech and sermon.”
Similarly Section 2 (qq) defines ‘performer’ as follows:– “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other rson who makes a person performance.”
Thus, a public lecture connotes a speech address, or sermon delivered in public, where such delivery in relation to a lecture includes delivery by means of any mechanical instruments. More so, a person who delivers a Jecture is a performer.
Extempore Lecture. Copyright subsists in a lecture only if it is reduced to writing before it was delivered. A lecture if delivered extempore, if not reduced to writing is protectable only by an action for breach of confidence or by establishing that the lecture was delivered under an express or implied contract that those admitted to lecture must not publish that.
Class-room lecture. A class room lecture is not copyrightable because such lecture is not a public lecture, since students are members of university and not members of public. [Caird v. Sine, 1887 GLP 526].
(vi) Compilations. compilation is a literary work. It is copyrightable provided it is original and sufficient labour, skill and judgment have been bestowed upon it. Thus, direction, poem, maps, and dictionaries, etc. are worth copyright protection.
In Macmillan v. Deb, ILR 17 Cal 952, the plaintiff’s selection of poems was borrowed by defendants. It was held that the defendant’s book had infringed the copyright of of the plaintiff. Thus, in case of compilations of poems involving sufficient labour, skill, and originality, copyright ght does subsist.
Thus, a selection of well known poems with critical notes thereof is an original literary work. So far so, a new annotated addition of a well known old work where passages from other works and footnotes was added, was held worth copyright protection. [Morehwar v. Gangavishnu, ILR 13 Bom 3581.
Since compilation are literary work, dictionaries are worth copyrightable. Copyright subsists in a dictionary for the arrangement, sequence, or idiom etc. of the dictionary which cannot be appropriated by another.
A collective work like encyclopaedia, constitutes works written in distinct parts by different authors. It was held that each such author has a separate copyright in his work. [Chappell v. Redwood Music, (1981) RPC 337].
Common Source. If defendant tooks plea of common source, he has to establish that he went to the common source from which he borrowed by employing his labour, skill and brain. [Govindan v. Gopalakrishnan, AIR 1955 Mad 391].
(vii) Photographs. Section 2 (s) of the Act defines ‘photograph’ as under-
“Photograph includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film.”
Copyright subsists in photographs being an artistic work, irrespective of its quality. There are two requisites for entitlement to copyright protection of a photograph-
(i) It must be original.
(ii) Same degree of skill and labour must have extended on it.
Apart from this a photograph even of an object belonging to the public domain is copyrightable. However, a photograph of an existing photograph is not entitled to copyright protection because it is a mere copy of that.
If the photographs are taken for valuable consideration at the instance of any person, it is the other person who can claim rights as the owner of the copyright in the photographs. [Bunny Reuben v. B.J. Panchal, 2001 (1) CTMR 143].
A photograph it looks like the one already taken can be treated as the infringing one, even though any number of persons can take any member of photos of the same subject or model, if the infringing photographs shows the same pose, light and shade and the special effects obtained by the original photograph, creating an impression that it is nothing but a retake of the self same original, mere change of technique in reproducing the work will not save such copy from the charge of infringement thereof.
(viii) Scope of copyright protection. Copyright protection is usually granted to original literary, musical, artistic or dramatic works. But, the growth of new technology has given rise to new concepts like computer programmes, databases, computer screen layouts, various works on the web etc. which is also copyrightable.
The primary function of copyright law is to protect from annexation by another people the fruits of a man’s work, labour, or taste. It is work that is protected and not ideas, if ideas can be taken without copyright work. Copyright owner cannot interfere. [Satsang v. K.C. Mukhopaddya, AIR 1972 Cal 533].
In attempt to safeguard the interests of the copyright owners, and to curb piracy, new strategies have been evolved under the WIPO Copyright Treaty. Now, copyrights have provided protection to all creative works that are emerging in new mediums including the multi-media. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. For purposes of copyright protection it is immaterial that the work is wise or foolish, accurate or inaccurate, or whether it has or has not any literary merit.
Requisite to secure copyright protection. In order to secure the copyright protection, it is required that:
(i) the author must have bestowed sufficient labour, skill and judgment thereupon,
(ii) that the work must be original.
Such labour, skill and capital must essentially be sufficient to import to the product same quality or character which the raw material did not possess and which differentiates the product from the raw material. Nag Book House v. State of West Bengal, AIR 1982 Cal 245).
The owner of a copyright has no monopoly in the subject-matter. Thus, any person may originate another work in the same general form. Ravencroft v. Herbert, (1980) RPC 193].
Similarly, the copyright holder may not prevent a person from taking what is useful from an original work and create a new work with additions and improvements thereof.
Ideas not protectable. Copyright safeguards specific expressions of ideas and notions rather than ideas themselves. Then, mere ideas cannot be copyrighted unless such ideas are specifically expressed in some required form [Satsang v. K. C. Mukhopadhya, AIR 1972 Cal 533].
Thus, copyright subsists only in material form in which ideas are translated. It does not subsist in an abstract idea. The copyright exists in the particular form of language in which the information or the idea is conveyed. Thus, the owner of ideas has no copyrightable right.
Abstract idea. In Jeffrey’s v. Booney, (1854) 4 HLC 815, the Court laid down that:-
“In the field of literary work the work chosen by the author to express his ideas are peculiar to himself and no two description of the same idea or fact will be in the same words just as no two answers to a question will be the same. The order and arrangement of each man’s word is as singular as his countenance. Although if two authors composed originally in the same order of words each would have a property in the composition, still the probability of such an occurrence would be less than there should be two countenances that could not be discriminated.” Therefore, an abstract idea is not worth copyright protection.
In R. G. Anand v. Delux Films, AIR 1978 SC 1613. it has been held that there is no copyright in abstract ideas, themes or plots of a literary work or films, etc. The Court classified the following propositions in this regard-
(a) There can be no copyright in an idea, subject-matter, themes, plots or historical/legendry facts, and violation of the copyright in such cases is confined to the form, manner and expressions of the idea by the author of the copyrighted work. What is protected is not original thought or information, but the original expression of thought concrete form. or information in some
(b) Where the same idea is being developed in different manner, it is manifest that the source being common, similarities are bound to occur. But if the defendant’s work is nothing but a literal (colourable) imitation of the copyrighted work with same variations here and there, it would amount to violation of copyright. Thus, the copy must be substantial and material one. A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original. This is a sure and safe test to determine the violation of copyright.
(c) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
(d) Where, however, apart from the similarities arising in the two works, there are also material and broad dissimilarities which negative the intention to copy the original and co-incidences appearing in the two works are clearly incidental, no infringement of the copyright occurs.
(e) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests.
(f) Where however, the question is the violation of the copyright of “stage play” by a film producer/director the task of the plaintiff becomes more difficult to prove piracy. It is clear that unlike stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeking the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
(g) It is obvious that the underlying emotions reflected by the principal characters in a play or book may be similar and yet that the characters and expressions of the same emotions be different. That the same emotions are found in plays would not alone be sufficient to prove infringement but if similar emotions are portrayed by a sequence of events, presented in like manner, expression and form then infringement would be apparent.