UMLA 4th Year BBA,LLB

Intellectual Property Rights Assignment

BY,
Aditya Yash Vyas
Roll No. - 51
 Subject matter of copyright
(Section 13)

Section 13 of Copyright Act, 1957 deals with provisions about works in which copyright
subsists and in which copyright does not subsist.

(1) It primarily says that the copyright shall subsist throughout India in the following classes of
works:

 original, literary, dramatic, musical and artistic work

 cinematographic films and
 sound recordings
(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 time, was at the time of his death, a citizen of
India.

Subsistence is the action or fact of maintaining or supporting oneself at a minimum level.

An Explanation was given which says that in 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 subsist (a) in any cinematographic 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 cinematographic 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.
WORK IN WHICH COPYRIGHT SUBSISTS
From the foregoing paragraphs, more so as defined under section 131 it is clear that a copyright
subsists only in certain classes of wok viz.,

1. Original Literary, dramatic or musical work

2. Original Artistic work
3. Cinematograph film
4. Sound recording
5. Computer programmes.

These are explained in detail below.

1. Original Literary, dramatic or musical work

(a) Literary Work

Literary work means any work in written or printed manner so long as it is original and has been
created by sufficient skill and labour. Literary work also includes a computer programme, table,
complications and Computer database (Section 2 (0)). Literary work need not be of literary
quality. It could be any work which may or may not make any literary value. An ordinary work
of compilation of names of people living in a particular area can also be treated as literary work
when considerable skill is involved in such work. In fact, it was held in University of London
Press v/s University of Tutorial Press ((1916) 2 Ch 601) that examination papers are original
literary work since the person who sets the question paper invests labour and skill in preparing
the same. Such person is the author of question paper and the copyright would vests in him. In
another case of Zee Telefilms Ltd v/s Sundial Communications ((2003) 27 PTC) it was held that
even the concept notes prepared for the purpose of a television film which consists of characters,
plots, notes, sketches etc. were held to be literary work.

Copyright in literary work can also be by the means of adaptation, abridgement and translation.

Adaptation: It is pertinent to note that the copyright also subsists in original adaptation of
literary work. Adaptation simply means 'adapting' or 'to adopt from original work and converting
the same into any form such as a dramatic work by the way of performance in public or
otherwise

Abridgement: Also, a genuine abridgement of literary work is also an original work and can be
copyrighted, subject to the author using sufficient skill and labour upon it. Mere copying of the
original work does not amount as abridgement of work.
Translation: Translation means to translate the original work in some other language(when
literary work). It is widely known that various books by different authors are translated and
published in regional languages in India to suit their state requirement. However, it was held in
Blackwood /vs Parasuraman (AIR 1959 Madras 410) that translation in any literary work is
entitled to copyright protection if sufficient skill and labour has been invested in it. However, it
was further held that if Copyright exists in such original work, then such translation without the
consent of the original Copyrighted work will constitute infringement of such original work.

Some of the literary works in which copyright subsists are as follows:

(i) Headlines of newspaper: - if the same are original and involves skill and labour, it
would enjoy the copyright protection.
(ii) Head Notes of law Reports: - it contains a clear and brief principle of law concluded
by the Court. Hence requires skill and thought and is entitled to copyright protection.
(Hi)
(iii) Letters: - Letters addressed by one person to another are original literary work and
entitled to copyright. Similarly, notes dictated to a typist also come under the purview
of copyright protection. In such a case, the person who dictates such notes is the
author of the same.

Case Laws
 Case: University of London vs University of Tutorial press

Facts: Examination question papers were set by "A".

Issues: Whether A is entitled to copyright of that work??

Held: Yes, since A invests labour and skill in preparing the examination question paper. Such
person is a author of question paper and the copyright would vest in him.

 Case: Zee Telefilms vs Sundial Communications

Facts: A had prepared concept notes for the purpose of television film which consist of
characters, plots, notes and sketches etc.

Issues: Whether A is entitled to copyright of those concept notes?

Held: Yes, since A invests labour and skill in preparing the concept paper. Such person is
entitled for copyright.

 Case: Blackwood vs Parasurama

Held: It was held that translation in any literary work is entitled to copyright protection if
sufficient skill and labour has been invested in it.
(b) Dramatic Work

Dramatic work as per section 2 (h) includes any piece of recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing
or otherwise but does not include a cinematograph film.

Thus to constitute a dramatic work it is necessary that some form of action should be present,
which is capable of being performed. The element of action is necessary. It was held in Creation
Records v/s New Group Newspapers (1997) EMLR 444 that a photograph which involves no
movement or action cannot be treated as dramatic work.

Adaptation of Dramatic work means modification of that work in some other form. In simple
words, if a theatre drama is adapted and a cinematograph film is made thereof. In such a case,
however, the consent or permission of the author/ owner of the copyright in such work is
necessary. A recent case is that of a film Oh My God which is adapted from a Gujarati play.

Case Laws
 Case: Creation Records vs New Group Newspaper

Held: It was held that a photograph which involves no movement or action cannot be treated as
dramatic work.

Copyright of Dramatic work can in form of:

Adaption of Dramatic work:

Adaptation work means modification of that work in some other form

(c) Musical Work

Musical work is defined under section 2 (p) as a work consisting of music and includes any
graphical notation of such work but does not include any words or any action intended to be
sung, spoken or performed with music.

It was held in Gramophone Company v/s Super Cassettes Industries 1996 PTC 252 Delhi that
musical work is not merely a combination of melody and harmony or either of them, it must
necessarily also have been printed, reduced to writing or graphically produced or reproduced to
copyright.
One must note that musical work does not include any words or any action intended to be sung,
spoken or performed with music. Such works will be either classified as literary or dramatic
works. Further, adaptation of original musical work also enjoys copyright protection. Adaptation
in relation to musical work means any arrangement or transcription of the work. Copyright will
subsist in arranging the musical work by adding musical melodies, new compositions, new
rhythms etc. A very common form of adaptation in recent times is the remix songs which we
hear along with the orchestra. Such an adaptation does not constitute infringement of copyright.
However, a musical work should be original to enjoy the copyright and similar to literary work,
the originality of musical work is determined by the amount of skill and labour put by the
composer.

When one thinks of musical work the only word which clicks the mind is "song". A song as such
has no Copyright protection. It is the lyrics (words) and music of the song which is capable of
being copyrighted. In case of lyrics the author is the owner of Copyright and in case of music the
composer is the owner of copyright. For eg a very famous song namely YAARAM which is
written by Gulzar and composed by Vishal Bhardwaj So the copyright over the lyrics will belong
to Gulzar and musical composition will that be of the composer i.e., Vishal Bhardwaj

Case Laws
 Famous song "Yaaram" which is written by Gulzar and composed by Vishal Bharadwaj.
The copyright of the lyrics will belong to Gulzar and musical composition will that be of
the composer Vishal Bharadwaj.
 Case: Gramophone Co. India vs Super Cassette Industries

Facts: 'G.co', Plaintiff, produced audio records titled 'Hum Aapke Hain Kaun' by Rajashree
production ltd, who were the owners of cinematographic work. They had already sold 55 lakhs
audio cassettes and 40,000 compact discs titled 'Hum Aapke Hain Kaun'. The defendants too
launched an audio cassette by adopting same title with it, design, colour scheme, get up and
layout deceptively similar. Permanent Injunction sought.

Held: Injunction varied by stipulating not to use same title, design colour scheme etc with bold
letters the record is version of different artists.

2. Original Artistic Work

As per Section 2 (c) Artistic work means:

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or a plan) an engraving
or a photograph, whether or not any such work possess artistic quality;
(ii) a work of architecture; and
(iii) any other work of artistic craftsmanship
Intellectual property law is very wide and it aims to provide protection to any kind of artistic
work so long as it is original and sufficient amount of skill and labour is put on such work. This
is clear from the aforesaid definition which states "whether or not it possess artistic quality"

Painting is not defined under the Copyright Act. However, it is entitled to copyright protection
whether it possesses any artistic quality or not if the same is original and has involved sufficient
skill and labour. However, a painting should necessarily be on a surface. It cannot have copyright
protection if the same is on a moving object. For eg., it has been held in number of cases that the
painting or a facial make-up on a persons’ body would not be entitled to any copyright
protection.

Sculpture merely means the art of making figures and shapes by craving or shaping stone, wood,
metal etc. Section 2 (z-a) states work of sculpture includes casts and models.

As the aforesaid section states a drawing includes a diagram, map, chart or a plan. Thus either of
this can be termed as drawing and are able to copyright protection so long as the basic ingredient
of originality is present. A drawing could be in any form whether it has artistic quality or not, it
could be a engineering or a mechanical drawing. In fact it was held in English court that even
cutting patterns for women clothes amount to a drawing and is entitled to copyright protection.

Engraving as defined under section 2 (1) includes etchings, lithographs, wood-cuts, prints and
other similar works not being photographs. Engraving in simple language means craving design
on a hard surface. The engraver of such design requires immense skill, labour and expertise to
put a particular design on a hard object. Though it is in still format, it is clearly not a photograph.
However, an engraving made from copying a photograph or a picture is entitled to copyright
protection but not vice-versa.

Photograph of any particular object amounts to artistic work and is entitled to copyright
protection so long as it involves some degree of skill and labour. Photograph as defined under
Section 2 (s) includes photo-lithograph, and any work produced by any process analogous to
photography but does not include any part of cinematograph film. From the definition it is
obvious that a photograph would not include a cinematograph film or any part thereof since the
same is a separate form of work in which copyright subsists. A photographer can have copyright
protection over a photo of a public object, (say VT station) if clicked from a particular angle and
in a particular manner but that does not stop another person from clicking the another photograph
from the same angle or in the same manner. That too will be entitled to copyright protection so
long as it is original and involves sufficient skill and labour. However, one must note that there is
no copyright protection available to a photo-copy of an original photograph.

Work of Architecture as defined under Section 2(b) means any building or structure having an
artistic character or design or structure.
Unlike the definition of artistic work, this definition clearly states that the work must have an
"artistic character or design", In other words, this definition is in contrast with the definition of
artistic work which states "whether or not such work possesses artistic quality" Thus to constitute
a work of architecture it is necessary that an element of artistic character, design or structure
must be present in the work. It must be noted that the process or construction methods of such
building or structures need not have an artistic quality. This is clarified by Section 13 (5) which
states that " In 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." Thus, there is an
unambiguous division between protection to architect's design (for a particular
building/structure) as compared to the processes and methods (which have no protection under
Copyright law) by which such designs are implemented.

Artistic Craftsmanship is not defined under the Copyright Act. However, in common parlance it
can be said that artistic work by a worker skilled in craft. The aforesaid section of artistic work
states that "any other work of artistic craftsmanship" intends to cover the other activities which
must show artistic craftsmanship. For e.g. , hand painted tiles or hand painted coasters, trays etc.

Case Laws
 Case: Associated publishers vs Bashvam

Facts: A portrait of Mahatma Gandhi was made based on two photographs.

Held: A portrait based on photographs will be entitled to copyright if it produced a result from
the photograph and the portrait itself is original.

Example: A photographer took a photograph of a painting of MF Hussain, then paints the same
himself and sells such copies painted by him.

Held: A copyright in a painting is infringed when a person copies from the original painting or a
picture of painting.

Example: If a building similar to the lotus temple in Delhi is made by any other architect, it
would be infringement of copyright of the architect who made the plan for the lotus temple.
3. Cinematograph Film
In today's rnodern times no one is ignorant about what a cinematograph film is. In fact it is, the
largest and the most extensive mode of entertainment for public at large. Under Section 13
copyright subsist in cinematograph film, The same Is defined under section 2 (f) as
"cinematograph film" means any work of visual recording and includes a sound recording
accompanying such visual recording and “Cinematograph” shall be construed as including any
work by any process analogous to cinematography including video films.”

The concept of cinematograph films is not limited to a movie which is played in theaters. It
was clearly held in Balwindar Singh V/s Delhi Administration, Delhi AIR 1984 Delhi 379, that
video as well as television both fall under the purview of cinematograph film.

The producer of the cinematograph film is the owner of copyright under the Copyright Act.
The level of originality of a cinematograph film is not specified under the Act. However, one a
film which is based on someone's life event or a newspaper report can claim copyright
protection. However, Section 13 (3) (a) clarifies that no copyright would subsist in a
cinematograph film if it is an infringement of copyright of any other work.

Case Laws
 Case: Baiwinder Singh vs Delhi Administration

Held: The concept of cinematograph is not only limited to movies being played in theater it also
covers videos and television, they both fall under the preview of cinematograph film.

Level of Originality: A television report or documentary may be based upon a live incidents or a
newspaper report, thus the act does not prescribe any specified level of originality in the
cinematographic film.

4. Sound Recording
Sound Recording as per Section 2 (xx) means a recording of sounds from which such sounds
may be produced regardless of the medium on which such recording is made or the method by
which such recording is produced.

Similar to a cinematograph film, in case of sound recording, the owner of sound recording is the
producer. However, the copyright in the music of such sound recording vests with the composer.

Case Laws
 Case: Gramophone Co. India vs Super Cassette Industries
Facts: 'G.co', Plaintiff, produced audio records titled 'Hum Aapke Hain Kaun' by Rajashree
production ltd, who were the owners of cinematographic work. They had already sold 55 lakhs
audio cassettes and 40,000 compact discs titled 'Hum Aapke Hain Kaun'. The defendants too
launched an audio cassette by adopting same title with it, design, colour scheme, get up and
layout deceptively similar. Permanent Injunction soughted.

Held: Injunction varied by stipulating not to use same title, design colour scheme etc with bold
letters the record is version of different artists.

5. Computer Programme
It is defined under Section 2 (ffc). It means a set of instructions expressed in words, codes,
schemes or any other form, including a machine readable medium, capable of causing a
computer to perform a particular task to achieve a particular result.

Computer Programmes are clearly entitled to copyright protection. In fact, it has been held in
English Courts that Copyright can also exist in a source code of computer programme. In a
computer programme, the elements such as codes, design and structure used by the
programmers can be copyrighted.

It means a set of instructions expressed in words, codes. Schemes or any other form, including a
machine readable medium, capable of causing a computer to perform a particular tasks to
achieve a particular result.

Example: Whatsapp, Flipkart etc.

(Section 14 of Copyright Act, 1957)

According to Section 14 of the 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); 19

(d) In the case of 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;

(e) In the case of 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.

Explanation : For the purposes of this section, a copy which has been sold once shall be deemed
to be a copy already in circulation.