Copyright is a type of intellectual property protection granted under Indian law to creators of original works of authorship, such as literary works (including computer programs, tables, and compilations including computer databases that can be articulated in terms, codes, schemes or in some other way, including a machine-readable medium), dramatic, musical and creative works, cinematographic films. Copyright applies to a set of proprietary privileges retained by the copyright holder according to Section 14 of the Act. These privileges can only be exercised by the copyright owner or by any other individual duly authorized by the copyright owner in this regard. Such privileges include the right to adapt, the right to reproduce, the right to publish, the right to create copies, communicate to the public etc.
Why should copyright be protected?
Copyright provides some basic protection to writers’ interests for their works and thereby preserves and rewards creativity. Because creativity is the keystone of development, no democratic civilization can afford to neglect the basic obligation to promote the same. A society’s economic and social development depends on the creativity. Protecting the efforts of writers, artists, designers, dramatists, musicians, architects, and sound recording producers, cinematographic films, and computer software through copyright creates an atmosphere conducive to creativity that induces them to create more and motivates others to create.
Copyrights Act, 1957
Copyrights in India is covered under the Copyrights Act, 1957 and is at parity with the international standards as contained in TRIPS. There is a Copyright office, board, and society in India. While the registration of copyright is granted by the ‘Registrar’ of the Copyright office which comes under HRD ministry, the disputes relating to the copyrights are heard by the Copyright board. A copyright society is a licensed collective administration society under section 33 of Copyright Act, 1957 which is formed by authors and other proprietors. The minimum membership required for the registration of the society is seven. The Act was amended 6 times. Administrative works are performed by the registrar of copyright.
What kind of works are protected by the Copyright Act?
According to the Copyright Act, 1957, the word ‘work’ involves a creative work consisting of a painting, a sculpture, a sketch (including a diagram, a map, a schematic or a graph), a gravure, a photograph, an architectural or artistic work, dramatic work, literary work (including computer programs, charts, compilations, and digital databases), musical work (including music and graphics).
- Literary works (Speeches, books, computer gaming)
- Musical (cassette, DVD, cd) Copyrights different for different people.
- Dramatic (Play, movies, etc.)
- Choreographical works
- Graphic and cultural activities (Toys etc.)
- Additional Activities.
Copyright Board (Constituted by central government)
A quasi-judicial entity, the Copyright Board was created in September 1958 and its authority applies to all of India. The board of copyright is an entity consisting of the federal govt. to perform other judicial duties under the Act. The role of the Board is to adjudicate conflicts related to the registration of copyright, the transfer of copyright, the awarding of licenses related to works withdrawn from the media, unpublished Indian plays, the creation, and publishing of translations and plays for particular purposes. It even considers proceedings in certain matters before it in compliance with the Copyright Act, 1957. The board comprises a chairman, and not more than 14 other members. The chairman and the members will retain their position for five years. Upon expiry of the term they can be reappointed. The chairman of the copyright board must be a person who is or has been a High Court judge, or who is eligible to be qualified for the appointment as a High Court judge. There is no referenced qualification about the board members.
Functions of Copyright Board
- Settlement of disputes as to whether copies of any literary, dramatic or artistic work or records are issued to the public in sufficient numbers.
- Settlement of disputes as to whether the term of copyright for any work is shorter in any other country than that provided for that work under the Act.
- Settlement of disputes with respect to the assignment of copyright as dealt with in Section 19A.
- Granting of compulsory licenses in respect of Indian works withheld from the public.
- Granting of compulsory license to publish unpublished Indian works.
- Granting of compulsory license to produce and publish the translation of literary and dramatic works.
- Granting of compulsory license to reproduce and publish literary, scientific or artistic works for certain purposes.
- Determination of royalties payable to the owner of the copyright.
- Determination of objection lodged by any person as to the fees charged by Performing Rights Societies.
- Rectification of Register on the application of the Registrar of Copyright or of any person aggrieved.
The Copyright Board has no powers to limit the use of copyright to any particular territorial area. The appeal against orders passed by the Copyright Board except under Section 6 lies to the High Court within whose jurisdiction the appellant resides or carries on business.
In Shri Urmila Charan Gupta vs. Shri Charushila Sharan Gupta and Sumitra Nandand Gupta, it has been held that if the Board, in its powers, thinks fit or agrees to dispose of the matter of all the 38 books on a single application, no one else is given the right to question its propriety.
Powers of Copyright Board
The copyright board has been accredited with the powers of civil court for the purpose of Section 345 and 346 of the Code of Criminal Procedure, 1973. And all proceedings of the board are judicial proceedings within the meaning of Section 193 and 228 of Indian Penal Code, 1860. In exercise of the civil court power, the copyright board may issue summons and enforce the attendance of any person and may examine him on oath, requiring the discovery and production of the document, receiving evidence on affidavit issuing commission for the examination of witness and documents and requisitioning public record or copy thereof from any court.
The board has the powers:
- To hear appeals against the orders of the Registrar of Copyright;
- To hear applications for rectification of entries in the Register of Copyrights;
- To adjudicate upon disputes on the assignment of copyright;
- To grant compulsory licenses to publish or republish works (in certain circumstances);
- To grant compulsory license to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work;
- To hear and decide disputes as to whether a work has been published or about the date of publication or about the term of copyright of a work in another country;
- To fix rates of royalties in respect of sound recordings under the cover-version provision; and
- To fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts of a literary or dramatic or musical work.
A copyright society is a licensed society with collective administration, formed by the owners of the copyright. The minimum membership needed for a group to sign is seven. Ordinarily, only one society is licensed to conduct business with regards to the same working community. A copyright society can issue or award licenses for any work in which copyright subsists or for any other privilege granted by the Copyright Act. It is a voluntary association.
E.g. Novex Communications (For sound recordings)
Radio companies have to pay the royalty for the songs to the company and the approval is given by the society. Novex is made by the Yashraj and Shemaroo collectively. They give a license for pubic processions.
IPRS (Indian performing rights society) is a society of copyright as well. They filed a case against the KKR. They issued a notice that you are violating the copyright of some other person.
Effect of Copyright (Amendment) Act, 2012 on Copyright Societies
Previously, the Copyright (Amendment) Act, 1994 added Section 33 to the Act which made it mandatory that only copyright societies can grant a licence or issue copyright license. However, as part of the 2012 Amendment, section 33(3A) was added, which laid down a new guideline that any copyright society carrying out the business of granting or issuing copyright license must register itself again within the period of 12 months from the date of the amendment. Therefore, any copyright society which existed prior to the amendment has to re-register itself within the given time frame.
Important sections associated with Copyrights
Section 2(o) talks about the “Literary work”
Literary work includes: –
- Computer programs
- Compilations (Includes database)
Anything which can be written is called literary work. Compilation was included in the 2012 amendment. Since computer programs are not patentable, they are included in the Copyright. Some of the examples of the compilation of the work are NCERT books and the guides provided in class 11th and 12th for the subjects. The different authors have separate Copyright in that case.
Section 2(p) talks about the “musical work” and includes the graphical notation. It is necessary to differentiate categories of the musical work and only the original work can be copyrightable.
Section 2 (c) includes: –
- Painting, Sculpture, Drawing, any engraving on the photograph, any map, or drawing whether or not they possess any artistic quality.
- Architecture. It does not need any artistic quality. Only originality is needed.
- Artistic Craftsmanship. It includes raw and hand made things in the open market.
Section 2(h) talks about the “Dramatic works” and includes: –
- Choreographic work.
- Entertainment in dumb show.
- Scenic arrangements or acting, form of which is fixed in writing and or otherwise, but it does not include any cinematographic film. There shall be a fixation in writing.
Section 13 of the Copyright Act, 1957 is the most important section for the Copyrights Act. It talks about the subject matter of the Copyright.
Section 13(1) says that the jurisdiction of the Copyright is all over India and the following classes of the work are under the protection of copyright: –
a.) Original literary, dramatic, musical and artistic works;
b.) Cinematograph films; and
c.) Sound recording
Section 13(2) talks about the published and unpublished work or the work of architecture. In the case of published work, the work shall be published in India. If the work is published outside India, the author at that time or during the time of his death shall be a citizen of India. In the case of an unpublished work, the author shall be a citizen of India or must be domiciled in India except in the work of Architecture. In the case of work of architecture, the work only shall be located in India and not the author, as the work of architecture can be done in papers as well.
In the work of architecture, the copyright shall subsist only in the artistic character and design and shall not extend to the process or methods of the construction.
There are certain rights under copyright law. These are Normal or Economic rights, Moral rights, and Neighboring rights. The economic rights are given under Section 14, the moral rights are given under section 57 and the neighboring rights are given under section 37A and 37B.
Section 14 elaborates on the meaning of Copyright. The copyright is the exclusive right to do or authorize for the following acts: –
- To reproduce the work in any form by electronic means.
- Issue copies of the work to the public in circulation.
- To perform the work in public or communicate to the public.
- To make any cinematograph film or any sound recording in respect of the work.
- To make a translation of the work.
- To make an adaptation of the work.
- In case of a computer program, all the above-mentioned rights as well as to sell or give on commercial rental or offer for sale or for commercial rent, for a copy of the program.
- The artistic works can be converted in an electronic form and can be converted from 2D to 3D and vice versa.
Moral rights under Section 57
Moral rights are always the rights of the author and the economic rights are always of the owner. The moral rights are the special rights which are not at all assignable and are always of the author. The moral rights are never assignable. These rights are derived from the BERN Convention. These rights are special rights because they are independent of the author’s copyright. They remain even after the term ends for the copyright of a person.
These rights are divided into two categories i.e. the right to follow and the right to integrity.
The right to follow says that the author has the right to claim ownership independent of the author’s copyright. The right to integrity is a right to restrain or claim damages in respect of any distortion, mutilation, modification, or other acts in relation to the said work. If the above-mentioned cases are prejudicial to the honor and reputation of the author, he can claim the right to integrity. These rights can be performed by the legal representative of the author, but there is no performance of a legal representative in the economic rights. If at any moment it happens that the work fails to the satisfaction of the author, it would not be called an infringement of the Copyright.
Section 22 talks about the term of the copyright in published literary, artistic, dramatic, and musical work. The term of the copyright shall subsist until 60 years after the death of the author and it shall be from the beginning of the calendar year next to the following year in which the author died.
‘Author’ is defined under Section 2(d) of the Copyrights Act, 1957.
If the work is related to the literature or drama, the author would hold the final authority. In the case of the musical work, the composer.
For artistic works such as photographs, the person taking the photograph will be the author. In cases related to the literary, dramatic, musical, or artistic work, which is computer-generated, the person who causes to make that work shall be the author of the work. The producer would be the author of the work in the case of a cinematograph film or sound recording.
Section 2(z) talks about the Joint Authorship of the work. The collaboration of two or more authors where the contribution of one author is not distinct from the others is called Joint authorship.
Section 17 talks about the first owner of the Copyright. The author is always the first owner of the Copyright. The section although talks about the proviso and the exceptions made. In the contract of service where there is a concept of Vicarious Liability under the course of employment, the authorship changes and the employer becomes the first owner. However, in the contract for service, the authorship doesn’t change and the author remains the first owner of the work. Section 17 talks about the provisions given for the first owner of the Copyright.
Section 22 talks about the term of copyright in published literary, artistic, musical, and dramatic works. The term stands for the lifetime plus 60 years after the death of the author.
Section 23 talks about the term of Copyright in an anonymous or the pseudonymous work. If a person had his identity unrevealed and he published the work anonymously and pseudonymously, he has the term until then and plus 60 years after the lifetime.
Section 24 talks about the term of Copyright in a posthumous work. In the case of joint authorship, if one of the authors dies, the other author would be having the term of his life plus 60 years.
Section 26 and 27 talks about the term of the works for the cinematography and Sound recording. The term subsists for 60 years.
Section 28 talks about the subsistence of the copyright in a Government work, Where the Government is the first owner of the work, the term of the right shall subsist for 60 years.
Section 40 talks about the power of the Government in extending the copyright to foreign works. This power is with the central government to decide on its discretion as to how and when to extend the power associated with giving the term of copyrights to the foreign works.
Section 41 gives the rights to the works of certain international organizations for getting the term for their copyright.
Neighboring rights, performance rights, or the broadcasting rights are given under the performer’s rights. The broadcasting organization rights are a kind of neighboring rights. These are the performer rights and the exclusive performer’s rights given under section 38 and Section 38A respectively. The broadcasting organization rights are although given in Section 37.
The rights of the performer shall subsist for 50 years under Section 38. Under Section 38A, it consists of the exclusive performer’s rights.
The section dealing with broadcast and broadcasting rights are section 2(d) and section 37 respectively. The rights within this ambit include the rebroadcasting of the work. There had been no legislative notification regarding it and the broadcasting can be in any form and shall subsist for the 25 years.
There are 5 rights granted under section 37 for the broadcasting rights which include: –
- The rights of re-broadcasts.
- The right to cause the public to watch it with payment of money.
- They can make the sound or visual recording of the broadcast.
- Commercial rental.
- Can make recording of such visual or sound recording where the license was not granted initially, and if license granted, can make it for any purpose not envisaged by such license.
The general defense for the acts which do not infringe the broadcasting reproduction rights or the performer’s rights is given under Section 39. This section has to be read with section 51 which includes the news channels or the fair deal bona fide usage cases such as giving trivia and the criticism for such act.
The concept of License and Assignment.
The License and Assignment are the transfer of an interest in the rights and it only allows adaptation and translations. The license is having a lower parameter, while the assignment has a relatively upper parameter. The concept of assignment is used in Copyright, license, and trademark, all 3 of them. Although, there is a difference between both of them and the ownership is transferred in the Assignment over a copyrighted work and the parties to which they are assigned, give the royalty to the author.
Licenses can be of two types,
- Statuary and
Section 18 and 19A talks about the assignments. Assignments can be total or partial. The concept is discussed in section 18. The prospective owner of the work is the one who will be the future owner. This right is with two people. The original owner and the prospective owner of the work. These rights can be transferred wholly or partially.
Section 19 talks about the modes of the assignment. It shall be in writing. The contract agreement shall specify the royalty or the considerations.
The date of the assignment is not noted and the term and the universal rule is that it shall be for 5 years. The initial term is 5 years.
There must be 5 essentials while reading the assignment:
- Who can do? The owner or the prospective owner.
- What to do? The assignment.
- How to do? Either wholly or partially.
- The royalty must be distributed in an equitable remedy between the owner and the prospective owner.
If a dispute arises in an assignment, there must be a copyrights society for revocation, distribution, etc.
Licenses are of two types, voluntary and involuntary licenses. Under the Involuntary license, there exists a compulsory and statuary license. The Voluntary license is given under Section 30 of the act.
- During the term of copyrighted work.
- Published or performed in public.
- Complain to allow the re-publication of the work.
Section 31 talks about the Compulsory License in works withheld from the public.
Section 31C and 31D
The sections of 31C and 31D talks about the statutory license and the sections 31A and 31B talks about the Compulsory License. In section 31A and 31B, the application has to be sent and signed by the application board for the license. In the case of the statutory license, there are a total of 10 steps to be followed for the license and it can be granted for the 4 categories of works only. The works include Cover versions, musical, literary, and broadcasting of sound recording. These are the licenses for the broadcasting of the literary and Sound recording works.
Section 31A talks about the license for the Cover versions of the song. It is the 3rd stage of the statutory license and it is always made up of original song and there are 3 steps for getting a license for the Cover versions. The 3 steps include: –
- A Notice of intention is to be given to the owner/author.
- Assurity of sending the advance copies of the work including the label.
- Royalties will be taken along.
Provided that, the cover version artist shall not mislead anyone of the original song and work. Neither the lyrics nor the graphical notation shall be changed of the song. The cover version of the song cannot be made after before 5 ears of the original work made. The cover version artist will have to make a minimum copy of 50 thousand of the work and has to maintain a book of accounts. The person desirous of making a cover song shall have to abide by the steps which include no alteration with the original sound recording.
Section 31D talks about the statutory license for the broadcasting of the Literary, Musical, Dramatic work and Sound Recording. It was introduced after the 2012 amendment. The same steps as done in the section 31C are to be followed in this section. The name of the author/principal shall be shown during the broadcast. The work should have been already published and apart from the technical necessities, there shall be no other alterations in the work of broadcasting of the work.
Infringement of Copyright
The infringement of copyright refers to the usage of any copyrighted work without the owner’s consent. Infringement happens when one party purposely or accidentally copies/uses another’s work without attribution. Infringement is generally divided into two types- Primary infringement and secondary infringement. The infringement of Copyright can be over the economic, moral, or the neighboring rights depending upon the situation. The section 51(a) (i) talks about the primary infringement. Section 51(b) and section 51(a) (ii) talks about secondary infringement.
The primary infringement is over the exclusive rights and the rights which are conferred upon the author/owner and they are being infringed without the permission of the author or the owner. For e.g. the reproduction of work i.e. the production of copies of a book. The communication of this infringed work in the public would be called as the secondary infringement. The secondary infringement is the indirect infringement of the work and the secondary infringement facilitates the primary infringement.
Section 52 talks about the defenses or the exceptions associated with the infringement of the copyright.
Section 52(a) talks about the act of fair dealing as not being the infringement of the copyright. The acts of fair dealing include the private or personal use including the research, criticisms, or the report of the current affair except “Computer program.”
The exceptions associated with computer program are given in section 52[(aa), 52[(ab), 52[(ac), 52[(ad).
Section 52[(aa) consists of two exceptions associated with the Computer Programme and they are the lawful possession and the permission to allow the utilization of the computer programs and to make the backup copies of the computer program.
Section 52[(ab) consists of the exceptions associated with the inter-operability of the computer program. Section 52[(ac) and Section [(ad) talks about the exceptions associated with reverse engineering and the Making copies for non-commercial personal trade.
The sub-clause d, e, and f of the section talks about the Exceptions related to law and order. Section 52(d) talks about the judicial proceedings related to sites like SCC Online etc. Section 52(e) talks about any reproduction of work for the purpose of the legislature. Section 52(f) talks about the exceptions for infringement associated with the certified copy made or supplied in accordance with the law.
Subclause g, h, i, j, k, l and m of section 52 talks about the performance of the work in public. Section 52(g) talks about any remarkable extract from some poem or excerpt and inserting it into the speech or recitation for any reference.
Section 52(h) talks about using the guidelines issued for bona fide usage. Section 52(i) talks about the question paper format or the questions and answers provided by the teachers and students in the examinations. Section 52(j) talks about the events at annual functions and any performance thereon on any musical work. Section 52(k) talks about using a reference of work of some art for the drama or the stage performance in different clubs of the Colleges and Schools.
Section 52(n), Section 52 (o), and Section 52(p) talk about the storing of any media and its e-copies in the Library and its usage for the non- commercial public. These can be for personal use or public use and not more than 3 copies of the book can be published.
Section 52(s, t, u, v, w, x) are the sections which talk about the exceptions related to the artistic work. The architecture is protectable if we produce the drawing of architecture.
Section 52(t) talks about the exceptions relate to the public places and 52(u) talks about the inclusion of Copyright works. For e.g. the shooting of a movie in the Taj Mahal and its accessibility by the General Public.
Section 52(v) talks about the exceptions related to the Model or artistic work such as sketches made in the malls and sketch booths.
Section 52(w) talks about the exceptions related to the Interior changes being made from 2D to 3D or vice versa and the exceptions are only for Industrial Applications and are purely functional.
Section 52(zb) talks about the exceptions related to the bona fide religious ceremonies held by the Central or State Government.
Case laws related to the Copyrights Act, 1957
1.) University of London press limited Vs. University tutorial press limited.
The sweat of the brow test
Facts: There were professors employed by the university and the authority of Copyright on question papers set by the professors was with the University of London press. The questions were published and it was known that the question papers are not covered under literary work. There were many issues regarding this case, but we will deal with two important issues. First, anything which comes with a written or printed output, comes under literary work. This case enlightens the concept of literary work and its inclusive definition. This case widely talks about literary work as well as the test of originality. The word ‘literary’ talks about the exercise of brain work in making the question paper. The professor is creating the paper out of careful consideration and their creative intellect.
The court held that the paper set by the professors are the creative intellect by selective discretion of the passage they behold.
The person who put his sweat and intellect is known as the sweat of the brow.
2.) Feist publication Inc. vs. Rural Telephone Service Company.
Modicum level of creativity test
The defendant company made a list of phone numbers of the people around the area and they listed it on a paper where phone numbers were written on the white side and the advertisements were given on the yellow side of the page.
Feist Publication Company used to create telephone dictionaries as well. Thus, Publication Company copied the names and contacts from the rural telephone service company’s white pages. The court decided that it is not an originality to copy the contacts of people who are easily available in the Government accounts. However, the yellow pages showing the advertisements are a mark of originality. The court introduced the minimal level of the test for the originality and didn’t restrict it to the Sweat of the brow test. A medium approach was set for the originality test.
3.) DB Modak vs. Eastern Book Company
A software created by DB Modak to publish the reports by Supreme Court in E-forms. Court divided the judgment into 3 forms. The SC said that the headnotes or the footnotes edited in the judgments are a part of the creative mind, whereas the copied judgment will not be authenticated for as under Copyright protection. It should be more than a mere copy of the original work and shall contain the author’s independent work.
This test was applied in this case.
4.) Compulsory License case: Reliance broadcast limited vs. Super Cassette Industries.
What are the rights of the appellate authorities?
The issue of this case was whether an interim order can be granted by the appellate board or not? Super Cassette industry asked the appellate board to grant an interim injunction against Reliance. The Appellate board cannot grant the interim order and the only power it holds is to decide whether to give the compulsory license or not.
5.) Moral rights cases: Manu Bhandari vs. Kala Niketan.
The ending was slightly changed by Kala Niketan and Manu Bhandari filed a case that the changes made by Kala Niketan are infringing the Moral rights and were prejudicial to the honor and reputation of Manu Bhandari. The argument of Kala Niketan was quashed saying that moral rights are exclusive of economic rights.
6.) Amarnath Sehgal Case
This case enlightened to restore the work to the original author and a new remedy was introduced in terms of Moral rights.
7.) Cases on Infringement: Super Cassete Industry vs. Batla cassete industry
The court held that the cover version is only made of the original version and not of the cover version.
8.) Infringement: Sony Corporation vs. universal city studios limited
Time-shifting technology was introduced by Sony Corporation. The act of infringement will rely on Humans. E.g. Movie recording and then showing to the other people.
9.) MGM Studios vs. Grokster Limited
Overruled the Sony Corporation case. Grokster had knowledge that people are sharing data using their platform and thus they are liable.
10.) RJ Anand case
Supreme Court issued the 7 Issues and Guidelines.
The difference between whether a work will be an infringement or not an infringement. The copy must be a substantial or material work.
(This article has been written and submitted by Mr. Prakhar Agnihotri during his course of internship at B&B Associates LLP. Mr. Agnihotri is a fourth year law-student at University of Petroleum & Energy Studies, Dehradun, Uttrakhand.)