International copyright

Unlike patents, copyright is easy to obtain and also, unfortunately, easy to infringe. One of the
salient features of copyright is that it need not be formally registered with any authority, unlike
other intellectual properties that require to be registered with the relevant government authority.
Copyright persists in literary, artistic, dramatic, and cinematographic works. As technology
develops, copyright works can be reproduced and communicated beyond national borders with
ease. International copyright protection is essential for copyright works to retain their value.

Although details of national laws may differ, the basic rights are the same in most countries
due to international conventions and agreements (principally the Berne Convention) that
provide a common framework that national legislation must follow to ensure countries respect
the rights of foreign authors.

This means that copyright automatically protects your work at a worldwide level.

International Copyrights are protected through various Conventions like the

Principal conventions and agreements

➢ The Berne Convention

➢ TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights (or TRIPS
for short) is an agreement between all the member nations of the World Trade
Organization (WTO).

From a copyright perspective much of the provisions are the same as the Berne Convention.

➢ The WIPO Copyright Treaty (WCT)

a special agreement under the Berne Convention which deals with the protection of
works and the rights of their authors in the digital environment.

➢ Universal Copyright Protection Convention

INTERNATIONAL COPYRIGHT UNDER THE INDIAN SYSTEM

THE COPYRIGHT ACT OF 1957

While the Act itself deals with international copyright under Chapter IX, the terms ‘foreign
works’ or ‘international copyright’ are nowhere defined in the Act. However, section 2(l) of the
Act defines ‘Indian work’ as a literary, dramatic, or musical work where

(i) the author of which is a citizen of India; or

(ii) which is first published in India; or

(iii) the author of which, in the case of an unpublished work is, at the time of the making of the
book, a citizen of India

Hence we can presume that works other than Indian Works fall under the category of Foreign
Works. Also, the meaning of ‘Foreign Work’ can be culled from section 40 of the Act.

Chapter IX deals with International Copyright under sections 40 to 43. In short, the Act treats
the Foreign Works of the countries mentioned in the International Copyright Order, 1999 as if
they were Indian Works, also giving the Central Government power to restrict the rights of
foreign authors under certain circumstances.

SEC 40 – POWER TO EXTEND COPYRIGHT TO FOREIGN WORKS

This provision of the Copyright Act enables the Central Government to extend copyright to
foreign works by publishing an Order in the Official Gazette. An essential feature of this
provision is that only the countries mentioned in the Order, which is The International
Copyright Order, 1999, can be accorded copyright in India.

Hence countries which do not find their names in the International Copyright Order, 1999
cannot claim copyright for their works in India. The Central Government can extend any or all
provisions of the Copyright Act to the works falling under the following categories, thus
treating them in a manner as if they were Indian Works.

(a) Works published in any territory outside India to be treated in a manner as if they were first
published in India
(b) Unpublished works whose authors at the time of making the work were subjects or citizens
of a foreign country to be treated in a manner as if the authors were Indian citizens.

(c) With respect to the domicile of an author in any territory outside India, the Copyright Act
will apply to him as if his domicile were in India

(d) Any work whose author at the date of the first publication of the work was a subject or
citizen of a foreign country, or who was dead at the time of the first publication and a subject
or citizen of a foreign country, the Copyright Act will apply to him as if he were an Indian
citizen at that date or time.

PROVISO TO SECTION 40 OF THE COPYRIGHT ACT OF 1957

However, the proviso to this section dictates that before adding a country to the International
Copyright Order, 1999, the Central Government should make sure that the concerned foreign
country should accord protection to works of Indian authors.

The term of copyright protection in India shall not exceed the term of protection accorded in
the country of origin of the foreign work. Also, the term of protection accorded by the foreign
country should not exceed the term of protection accorded by India.

The enjoyment of the rights accorded by the Copyright Act of 1957 shall be subject to the
fulfilment of the formalities and conditions prescribed by the International Copyright Order,
1999. Also, the International Copyright Order may provide that the whole of the Copyright
Act, 1957 or any part of it shall not apply to foreign works made before the commencement of
the Order or the Copyright Act; or to works first published before the commencement of the
Order.

SECTION 40A – APPLICATION OF CHAPTER VIII TO BROADCASTING

ORGANISATIONS AND PERFORMERS

This provision empowers the Central Government to extend the rights under Chapter VIII to
broadcasts and performances of foreign countries if it is satisfied that such country has made
or undertaken to make the necessary provisions for the protection of rights in that country, as
it is available in India under the Copyright Act of 1957. The Central Government can extend
the rights of Broadcasting Organizations conferred under Chapter VIII of the Copyright Act,
1957:

a) To Broadcasting organizations whose headquarters is situated in a country which is

included in the International Copyright Order, 1999

b) b) To performances that took place in a territory outside India in a manner as if they

took place in India

c) (c) To performances that are incorporated in a sound recording that was published in a
country included in the Order as if it were published in India

d) (d) To performances not fixed on a sound recording broadcast by a broadcasting

organization whose headquarters is located in a country which is included in the Order

The enjoyment of the rights under Chapter VIII shall be subject to the fulfilment of the
formalities and conditions specified in the Order. Chapter VIII does not extend to any
performances or broadcasts made before the commencement of the Order.

SECTION 42, 42A AND 43 – POWER OF CENTRAL GOVERNMENT TO RESTRICT

THE RIGHTS OF FOREIGN WORKS

Section 42: empowers the Central Government to retract or restrict the rights of such foreign
works, whose authors are not Indian and not domiciled in India, first published in India when
it feels that the concerned country has not reciprocated the protection given by the Indian
government by not giving adequate protection to the works of Indian authors.

This is an important provision in terms of diplomacy and international trade as protection is

given to certain intellectual properties on a reciprocal basis. This provision serves as a
safeguard to protect the interest of Indian authors and their works internationally.

Section 42A: is similar to section 42 but applies to foreign broadcasting organizations and
performers which are incorporated in such foreign country or are subjects or citizens of such
foreign country and not domiciled in India.
Section 43: dictates that every Order made by the Central Government under Chapter VIII
should be laid before both the Houses of the Parliament as soon as it is made, and shall be
subject to the modifications the Parliament may make during that session or the session
immediately following.

Conclusion
Copyright protection of foreign works in India is achieved through Chapter IX of the
Copyright Act, 1957 and the International Copyright Order, 1999. Only the countries
mentioned in the Schedule of the International Copyright Order, 1999 are eligible to
avail the copyright protection and it is deemed to exist throughout the territory of
India. This protection provided by the Indian Government is dependent on the
protection provided by the concerned foreign country to the works of Indian authors.
Hence the Copyright Act, 1957 empowers the Central Government to ristrict any
protection or right extended to a foreign work if it is not satisfied that the country of
origin of such foreign work has not taken enough steps to protect the works of Indian
authors. The foreign works are treated as if they are Indian works. Also, the term of
protection provided in India shall be the same extended to Indian Works and should not
exceed the term of protection provided in the country of origin. This is in harmony with
the Principle of National Treatment.