AUTHOR AND OWNERSHIP

A private organization hired Mr. A for preparing a booklet for the product description which that
organization was manufacturing and selling. Mr. A entirely prepared the booklet and submitted to the
organization for which the organization paid Mr. A a considerable amount of money, which was agreed.
Who will be the owner of the copyright in this situation? Also in the light of the above situation explain
the concept of author and ownership under copyright law along with suitable case laws.

Mr. Z, an independent content creator, has prepared a manuscript of a novel. He dictated the content of
the manuscript to his stenographer who took down the notes and then typed it. On one hand Prof. Z
claims to be the sole author and owner of copyright in the novel having invested intellect, sufficient skill
and labor. On the other hand the stenographer also claims to be co-author for having typed the entire
manuscript. In light of the given facts, discuss the subject matter of Copyright in question and the
concept of author and ownership under the Copyright Act, 1957. Whether Mr. Z is entitled solely to the
Copyright of the novel? Support your answer with relevant case laws.

SUBJECT MATTER

Mr. Q wants to cinematographic film as he has that kind of money for investment.
He has approached you for legal consultation on the intricacies of the copyright law in hiring of
various artists and performers who will contribute for his film.
In light of the above situation, explain to Mr. Q the various subject matter of copyright that are
involved in filmmaking along with legal provisions. Support your explanation with suitable
examples and case laws.

Discuss why copyright is called a bundle of rights. Explain the various subject matter of
Copyright under the Copyright Act, 1957 with legal provisions, examples and case Laws.
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SUBJECT MATTER OF COPYRIGHT

Section 13 - Copyright relates to work in the field of
o Original literary, dramatic, musical and artistic
o Sound Recording and
o Cinematographic films
o Copyright is also called as “author’s rights”
o Copyright owner or the author shall have not only the right to make
copies of his creation, but also to prevent others from making
unauthorized copies and also prevent a distorted reproduction
● It is the expression of the author’s ideas that is protected rather than the ideas
themselves. In other words, the ideas are protected only when they are put in
some form (e.g. ideas put down in a book, drawing, painting, etc.)
● The ideas in the work need not be new, but the form, may it be literary or
artistic, in which they are expressed should be original.
 ● Protection is independent of the quality or the value attached to the work.
● Thus originality and fixation are two important aspects of copyright

1. ORIGINAL LITERARY, DRAMATIC AND MUSICAL WORK

● Literary work refers to works that are in writing. The Act does not classify literary work, but we
understand that as work that are captured in writing.
● The act says that literary work includes computer programmes, tables, and compilations including
computer databases.
● The literary work need not have any literary merit and it is not the job of the courts to look into
the literary merit of copyright work.
● Dramatic work is defined as “including 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”
● Musical work was defined as “a work consisting of music and includes any graphical notation of
such work but does not include any work or any action intended to be sung, spoken or performed
with the music”
● In the 2012 Amendment, there was a grant of statutory license for cover versions.
● A song typically contains both literary and musical work. Therefore, the tune and lyrics
together form the song. Lyric of a song is the literary part and it is protected as a literary work
and the writer of the lyrics is the author of the work. Music accompanying the song is treated as a
musical work and the author of the musical work is the composer of the musical work.

Case: Gleeson vs Deene [1975] R.P.C. 471

Facts: “X” works hard enough walking down the streets, taking down the names of the
people who live at houses and makes a street directory as a result of that labour.
Issue: Whether X was entitled to copyright of the street directory what he made?
Held: Yes, as it’s a result of his hard work X is entitled for copyright. – Sweat of Brow
Doctrine

Case: University of London vs University of Tutorial press 1916

In the case of University of London Press Ltd. v. University Tutorial Press, Ltd., the University
of London assigned the copyright of its matriculation exam papers to the University of London
Press. When University Tutorial Press published these exam papers along with their critiques and
answers, the University of London Press and the examiners (Prof. Lodge and Mr. Jackson) sued
for copyright infringement.

The court addressed four main issues:

1. Definition of "Literary Works": The court determined that, although the UK Copyright Act
does not explicitly define "literary works," it includes works like maps, charts, and tables. Exam
papers, being written works, fit this category regardless of their quality.

2. Originality: The court ruled that the exam papers were original literary works because the
examiners used their own skill, labor, and judgment to create them. Copyright law protects the
expression of ideas, not the ideas themselves.
3. Ownership: The examiners, who created the exam papers, initially held the copyright.
However, they had a contractual agreement with the University of London, assigning the
copyright to the University of London Press.

4. Infringement and Fair Dealing: The court found that University Tutorial Press could not prove
that their publication of the exam papers was "fair dealing" for private study. Therefore, the
publication constitutes copyright infringement, and the plaintiffs won the case.

In summary, the court upheld the copyright of the exam papers as original literary works,
assigned correctly to the University of London Press, and ruled against University Tutorial Press
for copyright infringement.

Case: Zee Telefilms vs Sundial Communications 2003 (5) BomCR 404.

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: Wadia Movie Tone Pvt Ltd vs Vishal Bharadwaj & Ors (2017)
Roy Wadia has, on behalf of the firm, alleged that the Rangoon makers have made a
breach on trust and infringed on the copyrighted character, including her costume, poses,
and even the catch phrase ‘Bloody Hell’. Nadia used the phrase all the time, and the first
song that Rangoon‘s makers released was the
foot-tapping number Bloody Hell. Wadia’s petition alleges that the film is nothing
but an attempt to capitalise on the popularity of the Fearless Nadia franchise.

The Bombay High Court allowed filmmaker Vishal Bhardwaj’s movie Rangoon to be
released for public viewing as per schedule and directed Bhardwaj and the producers of
the film to deposit Rs 2 Crore with the high court by way of guarantee till the final
disposal of the case.

COPYRIGHT OF LITERARY WORK CAN BE IN FORM OF:

● Adaptation: An adaptation under Indian law is basically a change of format i.e. a copyrighted
work is converted from one format to another.
● Abridgement: It is most commonly used in relation to the act of reducing the principal ideas of
the larger work into a shorter form. For example, books condensed into shorter form.

Case: Macmillan & Co. vs K.J Cooper (1924) 26 BOMLR 292

Facts: Plaintiff’s book consisted of selected passages by Plutarch’s life of Alexander
the great, joined together by few words to give a different appearance. The book
also contained introduction and notes useful for education. A similar book was
published by defendants with notes. The original work contained 40,000 words while
the defendants had copied 20,000 words and 7000 words in notes.
Issue: Whether the defendants work infringed the copyright
in the plaintiff’s works?
Held: Defendants work infringed the copyright.

Case: Blackwood vs Parasurama AIR 1959 MAD 410

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.

2. ORIGINAL ARTISTIC WORK

● An artistic work as mentioned in the Act, a painting, a sculpture, a drawing
includes a diagram, map, chart or plan, an engraving or a photograph, and whether
or not any such work possesses artistic quality.
● A work of architecture is included as an artistic work and any work of artistic
craftsmanship can also come under the ambit of an artistic work.
● The author of an artistic work is the artist of the artistic work other than
photograph. The photograph is a person who takes the photograph, who is regarded
as the author.

3. CINEMATOGRAPH FILM
● It means any work of visual recording and includes a sound recording
accompanying such visual recording and sound recording accompanying such
visual recording and “cinematograph” shall be construed as including any work
produced by any process analogous to cinematography including video films.
● The author of cinematography films is the producer of the films.

Case: R.G. Anand vs Delux Films

Facts: Plaintiff was a producer and play writer of play ‘Hum Hindustani’. The plaintiff
tried to consider the possibility of filming and narrated the play to defendant. The
defendant, without informing the plaintiff, made the picture ‘New Delhi’ which was
alleged to be based on the said play.
Issue: Whether the film ‘New Delhi’ was an infringement of the plaintiff’s copyright
in play ‘Hum Hindustani’?
Held: No, because the stories were different only the theme “love story” was

4. SOUND RECORDING
● It means a recording of sound from which such sounds may be produced
regardless of the medium on which such recording is made or the method by
which the sounds are produced. The author of sound recording is the producer of
 the sound recording. The sound recording may involve musicians, it may
involve singers, but the author is the producer.
● The term of copyright varies depending on the kind of work that is protected.
Literary, musical, dramatic and artistic works are protected for the life of the
author and after the death for a period of 60 years.

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’s design,
colour scheme, get up and layout deceptively similar. Permanent Injunction soughted.
Held: Injunction varied by stipulating not to use same title, design colUoJWuArL
NsAcNDhEKeARme etc. with bold letters the record is version
of different artists.
25

5. COMPUTER PROGRAMMES
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.

SWEAT OF THE BROW TO MODICUM OF CREATIVITY

The concept of “originality” has undergone a paradigm shift from the “sweat of the
brow” doctrine to the “modicum of creativity” standard put forth in Feist Publication
Inc. v. Rural Telephone Service by the United States Supreme Court. The doctrine of
“sweat of the brow” provides copyright protection on basis of the labour, skill and
investment of capital put in by the creator instead of the originality. In Feist’s case, the
US Supreme Court totally negated this doctrine and held that in order to be original a
work must not only have been the product of independent creation, but it must also
exhibit a “modicum of creativity”. The Supreme Court prompted ‘creative originality’
and laid down the new test to protect the creation on basis of the minimal creativity.
This doctrine stipulates that originality subsists in a work where a sufficient amount of
intellectual creativity and judgment has gone into the creation of that work. The
standard of creativity need not be high but a minimum level of creativity should be there
for copyright protection.

OWNERSHIP AND AUTHOR

AUTHOR--The Copyright Act, 1957 has set a general rule under the definition of the
author of various works laid down under Section 2(d), which states that the author is
the first owner of the Copyright.
Section 2(d) of the Copyright Act, 1957. The section reads as follows:
1. In literary or dramatic works, the author of such work shall be the author.
 2. In musical works, the music composer shall be the author.
3. In artistic works, the artist shall be the author.
4. For a photograph, the person clicking such photograph shall be the author.
5. In cinematographic films, the producer of such a film shall be the author.
6. For a sound recording, the producer of such sound recording shall be the author.
7. When a literary, dramatic, artistic or musical work is a computer
generated then the person who causes such work to be created is the author.

OWNER-- The concept of ownership is very different under the Copyright Act. As we
discussed above, the general rule is that the author is the first owner of the copyright.
However, the Copyright Act, 1957 specifies certain exceptions to this general rule.
Therefore, it becomes very important to understand the difference between authorship
and ownership of copyright. Let us understand with the help of illustrations.

EXCEPTIONS TO THE RULE- ‘AUTHOR IS THE FIRST OWNER’

The exceptions to the general rule that the author is the first owner of copyright is laid
forth in Section 17 of the Indian Copyright Act, 1957, which states that a person who
pays or provides resources for a work to be created is the first owner of such work. Let
us take a closer look at these exceptions.

Section 17 Subject matter

Clause (a) Literary, dramatic & artistic work

Clause (b) Photograph, painting, engraving, cinematographic film

Clause (c) Work made under course of employment

Clause (cc) Lectures delivered in public in behalf of another

Clause (d) Work assigned by government

Clause (dd) Work made on behalf of a public undertaking

Clause (dd) Work of certain international organization

Section 17(a)- literary, artistic, dramatic work

This clause states that if an author creates a literary, dramatic, or artistic work while
working for the owner of a newspaper, magazine, book, or other publication under a
contract for publishing such work, the owner of such newspaper or magazine becomes
the first owner of the copyrighted work, unless an agreement to the contrary is in place.
 Illustration – A journalist or writer working in a newspaper house is never the
owner of the work he produces; only authorship is his.

Section 17(b)- Photograph, painting, engraving, cinematographic film

This paragraph states that anytime a photographer is paid to take photographs, a painter is
hired to paint, and a cinematographer is hired to shoot a film, the person who hired or
caused such work to be done becomes the first owner of the copyright.
Illustration – A painter hired by a school to paint the school’s boundary walls with
storytelling paintings presenting social and moral values will not be the first owner of
the paintings he made, but the school that hired the painter will be

Section 17(c)- Work during course of employment

This section states that if a work is made during the course of employment or a
service contract, the employer becomes the first owner of such copyrighted work.
Add Thomas v. Manorama case
In another case of Neetu Singh vs Rajiv Saumitra, the court agreed that the defendant had
served as a director of a company for two years, but the plaintiffs were unable to prove that the
literary work authored by the defendant was part of his employment obligations.

Section 17(cc) – Lectures delivered in public in behalf of another

This clause states that if a person provides a speech in public on behalf of another person, the
person on whose behalf the speech was delivered is the original copyright owner, not the
person giving the speech.

Section 17(d) – Work assigned by government

If a copyrightable work is created as a result of a government tender, the government will
be the first owner of the copyright deriving from and accruing to such works.
For example, the Indian government owns the copyright on the “statue of unity,” not
the engineers or architects who designed or built it.

Section 17 (dd) – Work made on behalf of a public undertaking

In the absence of an agreement to the contrary, if a work is created or first published
by or under the control or direction of a public undertaking, that public undertaking
will be the original owner of Copyright.

Section 17(dd) – Work of certain international organization

If an international organization commissions someone to create a copyrightable work on
its behalf, that organization will be the original owner of the work.

CASES

1. Thomas v. Manorama
 · Malayala Manorama Co. Ltd. (the “Respondent”), a well-established
publishing house initially filed a case for copyright infringement against V.T.
Thomas (“Thomas”), and Kala Kaumudi, a rival publishing house (together the
“Appellants”).
· Thomas created a cartoon series based on two characters – Boban and
Molly which were routinely published by the Respondent.
· Even after the termination of Thomas’s employment with the
Respondent, he continued making cartoons based on the characters. These were
published by his new employer, and the rival publishing house – Kala
Kaumudi.
· In response to this, the Respondents filed a suit for copyright infringement
and injunction against the Appellants which was allowed by the District Court.
Aggrieved by the same, the Appellants filed the present appeal with the High Court
of Kerala.
· HELD: The Court held that the copyright in the cartoons made by
Thomas during the course of employment would vest with the Respondent as an
artistic work, while the copyright over the characters of Boban and Molly would
vest with Thomas as the characters were developed by him independently and
not during the course of employment with the Respondent.

BUNDLE OF RIGHTS
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Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue
of Section 14 of the Act. These rights can be exercised only by the owner of copyright or
by any other person who is duly licensed in this regard by the owner of copyright. These
rights include the right of adaptation, right of reproduction, right of publication, right to
make translations, communication to the public etc. The bundle of rights typically
includes the following:

Statutory Rights [Section 14]

● In the case of a literary, dramatic or musical work (except computer programme),
copyright means the exclusive right
○ To reproduce the work
■ The right to reproduce the work, which means the exclusive right to make
copies of the work in various forms, such as printing copies, recording
it, or storing it digitally.
○ To issue copies of the work to the public
○ To perform the work in public
■ The right to perform the work publicly, such as in the case of plays,
music, or films. This right includes live performances as well as
performances through any medium, including broadcast, streaming, or
digital platforms.
 ○ To communicate the work to the public.
○ To make cinematograph film or sound
○ recording in respect of the work
○ To make any translation of the work
○ To make any adaptation of the work.
● Distribution Right: The right to distribute copies of the work to the public, either by
selling, renting, lending, or any other form of transferring ownership or possession of
the work.
● Derivative Work Right: The right to create derivative works based on the original
work. A derivative work is a new work that is based on or derived from the original,
such as a translation, adaptation, sequel, or screenplay.
● Public Display Right: The right to display the work publicly, such as in the case of
visual arts, sculptures, or photographs. This right includes displaying the work in
physical locations as well as through digital means.
● Moral Rights:
○ The right to decide whether to publish or not to publish the work, i.e. the right to
publication
○ Right to claim authorship of a published or exhibited work
○ Right to prevent alteration and other actions that may damage the author’s honour
or reputation – the right of integrity
○ The Berne Convention recognizes 2 and 3 of above mentioned rights.
○ Section 57 of CR Act as amended in 1994 also recognizes 2 and 3
○ These rights remain with the author even after the transfer of copyright and lasts
throughout the entire term of copyright
● Economic rights - Rights mentioned under Section 14 are economic rights Exploitation of
work by exercising these rights may bring economic benefit The author may exploit the
work himself or authorize or license others to exploit any one or more rights for
consideration which may be in form of royalty or lump- sum payment
● Negative Right - It stops others from exploiting the work of the author for their own
benefit without the consent or license of the author

INFRINGEMENT
Mr. A is teaching at a renowned University. Mr. A wants his students to get a compilation of
study material. Mr. A copy some research papers from the open source platform, prepare a brief
prologue and table of contents, and send the compilation for photocopying to the University
photocopy center. Students purchase the compilation at the cost of the photocopying.
Discuss the concept of infringement in the above mentioned situation with the help of suitable
examples and case laws.
Mr. A, a university teacher, creates a compilation of study material by copying research papers
from an open-source platform. He adds a brief prologue and table of contents, then sends it to the
university photocopy center. Students purchase the compilation at the cost of photocopying.

Potential Infringement Analysis

Key Points to Consider:

1. Source of the Research Papers:

○ If the research papers are truly open-source and explicitly allow reproduction
and distribution, Mr. A's actions may not constitute copyright infringement.
2. Nature of the Use:
○ If the papers are not open-source or do not explicitly allow such use, then
reproducing and distributing them, even for educational purposes, could constitute
infringement.
3. Fair Use Doctrine:
○ Educational use often falls under fair use; however, the extent of copying and the
nature of the original works are crucial factors.

Relevant Case Laws and Examples

1. The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari

Photocopy Services (2016):

● Facts: Delhi University provided course packs compiled from copyrighted books and
sent them to a photocopy shop, which sold them to students at the cost of photocopying.
● Issue: Whether the photocopying of copyrighted material for educational purposes
constituted infringement.
● Ruling: The Delhi High Court ruled in favor of the photocopy shop, stating that
photocopying for educational purposes, especially when it benefits students and is not for
commercial gain, falls under fair use.

2. Cambridge University Press v. Patton (2014):

● Facts: Georgia State University provided digital course packs by copying book chapters
and distributing them electronically to students.
● Issue: Whether this constituted copyright infringement.
● Ruling: The court applied the fair use doctrine, focusing on the purpose (educational),
the nature of the work (factual vs. creative), the amount used, and the effect on the
market. The court found some uses to be fair use and others to be infringement based on
these factors.

Application to Mr. A's Case

1. Purpose and Character of the Use:

● Mr. A’s use is educational, non-commercial, and intended to benefit students.

2. Nature of the Original Works:

● If the research papers are factual and not creative works, this weighs in favor of fair use.

3. Amount and Substantiality:

● If Mr. A is copying entire papers, this could weigh against fair use. However, if he is
using only portions necessary for educational purposes, this could be more favorable.

4. Effect on the Market:

● If the papers are open-source or freely available, the market impact may be minimal. If
the papers are from subscription-based journals, the impact could be significant.

Conclusion

Potential Infringement:

● If the research papers are indeed open-source and permit such use, there is likely no
infringement.
● If the papers are not open-source, Mr. A’s actions could constitute copyright infringement
unless they meet the criteria for fair use.

Ronaldo is a M.Phil. student in the University. Ronaldo is pursuing his research under the
guidance of Dr. Messi. Ronaldo is in the regular process of submitting original research
contributions to Dr. Messi for his perusal and after which, both (Ronaldo & Dr. Messi) publish
the research in a reputed journal. Recently, Ronaldo came to know that one of his manuscripts is
published by Dr. Messi in the journal without his name on it. As an IP expert Ronaldo has
approached you for possible remedies available in the situation. On the basis of the above
situation, discuss the remedies available under Copyright Act, 1957 with suitable examples
and case laws.

Facts of the Case:

Ronaldo, an M.Phil. student, regularly submits original research to his advisor, Dr.
Messi, and both publish the research in reputed journals. Ronaldo discovered that Dr.
Messi published one of his manuscripts without including Ronaldo's name.

Possible Remedies under the Copyright Act, 1957

1. Recognition of Authorship (Moral Rights):

 ● Under Section 57 of the Copyright Act, 1957, authors have the right to claim
authorship of their work and to prevent others from falsely attributing the
authorship to another person.

2. Infringement of Copyright:

● If Dr. Messi published Ronaldo’s work without his consent, it may constitute
copyright infringement. Ronaldo, as the original author, holds the copyright to
his manuscript.

Remedies Available

1. Injunction:

● Ronaldo can seek an injunction to prevent further publication or distribution of

the manuscript without his name.

2. Damages and Accounts of Profits:

● Under Section 55, Ronaldo can claim monetary damages for any loss suffered
due to the infringement and seek an account of profits that Dr. Messi made
from the unauthorized publication.

3. Criminal Remedies:

● Under Section 63, unauthorized use of copyrighted work can lead to

imprisonment and fines. However, this is typically reserved for more severe or
commercial violations.
Rex wanted to develop a computer software and discussed the information regarding software
with Julia. Rex wanted to explore proper Intellectual Property protection. Julia later on
developed the software and applied for the protection under Copyright Law. Rex was surprised
to know the development of Software.
Rex has approached you for appropriate consultation over the situation. As an IP expert you are
required to provide Rex the information on the various acts amount to Copyright Infringement
along with examples and case laws.

George has discussed an idea of creating a software based video game character
RAAVAN with Bob and Shelly. Later, Bob has written a software based on discussion and
created a character named as G-ONE. George has approached you for identifying possible
remedies under Copyright Act, 1957.
On the basis of above situation discuss the possible remedies available under
Copyright Act, 1957 with suitable examples and case laws.
What is an infringement of Copyright? Explain the essential elements of Copyright Infringement
with the help of case laws with special reference to Literary and Dramatic work.

NOTES
Copyright infringement refers to the unauthorized use of someone’s copyrighted
work. Thus, it is the use of someone’s copyrighted work without permission thereby
infringing certain rights of the copyright holder, such as the right to reproduce, distribute,
display or perform the protected work.

Section 51 of the Copyright Act specifies when a copyright is infringed. According to

Section 51 of the Act, Copyright is deemed to be infringed if:
● A person without obtaining the permission of the copyright holder does any act
which only the copyright holder is authorized to do.
● A person permits the place to be used for communication, selling, distribution or
exhibition of an infringing work unless he was not aware or has no reason to
believe that such permission will result in the violation of copyright.
● A person imports infringing copies of a work
● A person without obtaining the authority from the copyright holder reproduces his
work in any form.

ELEMENTS
1. The work was the original creation of the author
2. The defendant actually copied the work of the author.
3. It is important to note that not all factually copying is legally actionable.
4. The substantial similarity between the works of the author and
the defendant has to be established to prove that the defendant has
infringed the author’s copyright.

TYPES OF INFRINGEMENTS
1. Primary infringement: Primary infringement refers to the real act of
copying the work of the copyright holder. For example, photocopying a
book and then distributing it for commercial purposes.
However, sometimes a person may only copy a part of the work, for example, a
paragraph of an article. In such a case, the copyright holder is required to
establish two things

● Substantial Taking
A copyright is infringed only when an unauthorized person copies a substantial
part of the work. For example, copying a catchy phrase of a lyricist.
 While deciding the case, the court also tries to conceive how an ordinary person
will perceive the work. If an ordinary person will perceive that the work is
copied from a different source then it will be considered infringement.
If the writing style, language and errors are similar to the copyrighted work then
it will serve as evidence of copying in a court of law. The minor alterations
made by the person in the work of a copyright holder will not affect the claim of
infringement.
● Casual Connection
The copyright holder must prove that there is a similarity in the works of the
copyright holder and the infringer. However, this may be because of several
other reasons like both of them have used the same source for the research. In
such a case, the copyright holder can not claim infringement.

2. Secondary Infringement: Secondary Infringement refers to the infringement

of copyright work without actually copying it. This can happen in the
following ways:
1. Providing a place for Copyright Infringement
2. Selling Infringing Copies
3. Distributing Infringing Copies
4. Importing Infringing Copies

Test for Copyright Infringement

1. The Work is Copied

First, the plaintiff must prove ownership of the copyright. Once this is established, the
next step is to show that the defendant has, by any means, copied the plaintiff’s work.

2. Substantial Similarity

The second test for copyright infringement is the substantial similarity test. Courts use
this test to determine if a work is substantially similar to the original, even though there
isn't an exact formula. The key is to see how much of the original work is copied and
whether the copied portion is trivial or substantial.

Example:
- If you take a 250-word paragraph from a 5000-word research paper for an article, the
court might consider this trivial.
- If you take one important line from a 5-line poem for another poem, it could be
argued that there is substantial similarity.
 Determining Similarity:
- The court looks at the creative expression, not just the idea. Elements such as the
choice of words, order, punctuation, and the use of graphs are examined.
- The court compares the two works to see if the new work clearly resembles the
original, indicating it was likely copied.

3. Lay Observer’s Test (Audience Test)

This test determines if the average audience would find the defendant’s work
substantially similar to the plaintiff’s work. If a layman cannot differentiate between the
two works, it indicates substantial similarity, thus infringing the copyright. This is also
known as the observer test.

1) R.G Anand vs. Deluxe Films and Ors. (1978)

Facts of the Case

R.G. Anand, a play producer, wrote a play called "Hum Hindustani" in 1953, which
gained popularity after its first performance in 1954. Defendant No. 2 approached Anand
for a copy of the play to consider adapting it into a movie. However, in May 1955,
Defendant No. 2 announced the production of a movie titled "New Delhi," released in
September 1956. After watching the film, Anand sued for copyright infringement,
claiming the movie was based on his play. Defendant No. 2 denied the allegations,
arguing that the play's idea of "provincialism" could not be copyrighted and that there
were significant differences between the play and the movie. Both the trial court and the
Delhi High Court ruled in favor of the defendants.

How the Court Used Section 13 to Arrive at the Conclusion:

1. Idea-Expression Dichotomy: The court distinguished between the idea and the
expression of the idea. It ruled that copyright protection does not extend to ideas,
concepts, or themes but only to the specific expression of those ideas. Since both
the play "Hum Hindustani" and the film "New Delhi" dealt with the common
theme of provincialism, the court noted that themes and ideas are not protected
under copyright law, only their unique expressions are.
2. Original Expression: The court evaluated whether the expression of the idea in
"Hum Hindustani" was substantially copied in "New Delhi." It concluded that
although both works shared a common theme, the way the theme was developed,
the characters, dialogues, and sequence of events were distinct and original in each
work.
 3. Section 13: The court applied Section 13 to confirm that copyright does not
subsist in a work that substantially infringes another. However, in this case, the
court found no substantial copying of the specific expression of the plaintiff's play
in the defendant's film. The film "New Delhi" was not considered a reproduction
or substantial part of the play "Hum Hindustani," thus there was no infringement
under the standards set by Section 13.
4. Perspective of the Viewer: The court also considered the perception of an
ordinary viewer. It held that an ordinary viewer would not confuse the film "New
Delhi" with the play "Hum Hindustani" as they were substantially different in their
execution and presentation, even though they dealt with a similar theme.

Thus, using Section 13 and the concept of idea-expression dichotomy, the court ruled in
favor of the defendants, stating that there was no copyright infringement.

2) Ratna Sagar Pvt. Ltd. vs. Trisea Publications and Ors. (1996)

Facts of the Case

Ratna Sagar Pvt. Ltd., a publisher of educational books for children, published a series
titled "LIVING SCIENCE," consisting of five volumes focused on the features of
plants and animals. Ratna Sagar claimed ownership of the copyright for these
volumes. The first defendant, Trisea Publications, published a series of books titled
"UNIQUE: SCIENCE," Volumes III, IV, and V, with defendants 2 and 3 serving as
editors. Ratna Sagar alleged that the "UNIQUE: SCIENCE" series was a replica of
their "LIVING SCIENCE" series.

The defendants argued that both works were derived from common sources and were
dissimilar in expression. They contended that the Copyright Act protects the
expression of ideas, not the ideas themselves, and that their work was independently
created with skill and labor, even if derived from similar sources.

Analysis

While both parties drew inspiration from nature, the court focused on the specific
expression of those ideas in the books. The court recognized that the plaintiff's work
was published first and needed protection. It has viewed the plaintiff’s books as well
as the defendants’ books, and a detailed inspection of the books leaves the impression
that the defendants duplicated the plaintiff’s work. The court held that the defendants
had infringed upon Ratna Sagar's copyright and issued an injunction restraining the
defendants from printing, publishing, selling, or advertising the infringing works titled
"UNIQUE SCIENCE." The plaintiff had established a prima facie strong case for an
injunction and won on the balance of convenience.
3) Shree Venkatesh Films Pvt. Ltd. vs. Vipul Amrutlal Shah and Ors. (2009)

In 2007, the plaintiff, Vipul Amrutlal & Ors, released a Hindi film named "Namastey
London," which became a major hit, earning over Rs. 100 crore. In July 2009, a
Bengali film titled "Poran Jaye Joliya Rae" was released, which allegedly imitated
"Namastey London." Following the release, the plaintiff attempted to negotiate with
the Bengali film producer to assign the rights of the film, but the negotiations failed.
Ten days after the release of the Bengali film, the plaintiffs filed a suit and an
interlocutory application to restrain the exhibition of the Bengali film, claiming it
infringed their copyright. The First Court issued an ad-interim order stopping Shri
Venkatesh Films Pvt. Ltd. from exhibiting their film. The defendants appealed the
injunction order to the Calcutta High Court.

Rule

The Calcutta High Court interpreted the term "copy" in Section 14(d)(i) of the
Copyright Act, 1957.

Analysis

The Court clarified that "making a copy" of a film under Section 14(d)(i) is not
limited to duplicating the film in an electronic device. It includes creating another film
that fundamentally or substantially resembles the original film. The Court emphasized
a broad interpretation of "copy," indicating that if a new film shows substantial
similarity to the original, it constitutes copyright infringement. Upon comparing the
two films scene by scene, the Court found that the Bengali film was a coherent
version of the Hindi film, thereby infringing the story and screenplay of "Namastey
London."

REMEDIES

Civil Remedies:

According to Section 55 of the Copyright Act, the following civil remedies are
available for copyright infringement:

○ Injunctions
○ Damages
○ Rendition of the accounts
○ Delivery and destruction of infringing copies
○ Damages for conversion
 2. Interlocutory Injunctions:
○ A copyright owner can file for an interlocutory injunction to prevent the
infringer from using the copyrighted work further. This provides
immediate and temporary relief until the trial concludes or further orders
are issued.
○ Conditions for an interim injunction:
■ A prima facie case must be made.
■ The balance of convenience must favor the plaintiff.
■ Refusal of the injunction would result in irreparable injury to the
plaintiff.
3. Monetary Remedies:

Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of
the Copyright Act of 1957.

● an account of profits which lets the owner seek the sum of money made equal
to the profit made through unlawful conduct.
● compensatory damages which let the copyright owner seek the damages he
suffered due to the infringement.
● Conversion damages which are assessed according to the value of the article.

Gujarat Bottling Co Ltd. V. Coca Cola Company and Ors, 1995 (5) SCC 545

The court said that the purpose of a temporary injunction is to prevent harm to the
plaintiff that can't be fixed with money if they win the case.

However, the court also has to consider the defendant's need to avoid harm from being
stopped from doing something they're legally allowed to do.

The court must weigh both sides and decide where the "balance of convenience" lies.

Criminal Remedies:

As per Section 63 of the Copyright Act, any person who intentionally infringes or
abets the infringement of copyright can be punished with:

● Imprisonment for six months to three years.

● A fine between fifty thousand rupees and two lakh rupees.
● For non-commercial infringements, the court may impose a lesser sentence of
less than six months and a fine of less than fifty thousand rupees.
● Search and seizure of infringing goods
● Delivery of infringing goods to the copyright owner
● Enhanced penalty on second and subsequent convictions (Section 63A)
Administrative Remedies:

To prevent the importation of infringing copies:

● The copyright owner can approach the Registrar of Copyrights to restrict the
import of such copies.
● This applies when goods are imported in violation of specific territorial
restrictions imposed by the copyright owner.

Limitation period – 3 years from the date of infringement

DEVELOPMENT

"The good news is that India's IP system is aligning with the international IP ecosystem more
than ever before, positioning the economy as a promising global innovation hub." -
FransisGurry, Director General, WIPO (2019) In reference to the above statement discuss
development of Indian Copyright law in the light of International copyright framework (2)

1.2 Origin and Historical Development of Copyright Law

● Due to the advancement of technology, the dissemination of the creative work has become
borderless and hence the need to make law in conformity with the changes.
● proprietary/ownership right of the artist, author or creator comes into existence as soon as the
work is created.
● exclusive right to do or authorize others to do certain acts in relation to dramatic, musical and
artistic works, literary works, cinematograph film, sound recordings, computer databases etc. i.e.
it is the right to copy or reproduce the work in which copyright subsists.
● Emerged with the invention of printing
○ which made the literary works to be duplicated by mechanical process.
○ The invention of Gutenberg's printing press in Germany in 1436, a need to protect the
printers and booksellers was recognized and thus certain privileges to printers,
publishers and also authors were granted.
○ The art of printing spread quickly in Europe.
○ After 1483, England emerged as a major center of printing trade in Europe. The
spread of this technological innovation led to creation of a class of intermediaries, who
made initial investment in bringing out the book, i.e., the printers, who doubled as
booksellers as well.
 ■ They were called the “stationer’s” in England
○ In 1523 and 1528, restrictions were introduced by Henry VIII prohibiting the
importation of books altogether in 1533 on the grounds that there were enough
printers and book-binders in England.
■ In 1529, a system of privileges was set up for printing books.
■ Henry VIII made the stationers' guild into a company called Stationers'
Company comprising 97 London publishers.
■ In 1556, a Royal Charter was granted to the Stationers Company which
provided the right to administer a system of private registration of all
published works.
● all books which were to be printed or reprinted, had to be entered in
the register of the Company before being published.
● The company had powers to deal with infringement by seizure and
destruction of illegal copies.
● In 1557, Queen Mary I, granted the privilege of regulating the book trade
to the Stationer’s company of London.
○ In 1662, the Licensing Act was passed in England, which prohibited the printing of any
book which was not licensed and registered with the Stationers’ Company
○ This was the first clear law which was aimed at protecting literary copyright and
checking piracy. The license era was short lived. It was only with the passing of the
Queen Anne’s Statute of 1709, that the rights of the authors over their work came to
be legally recognized, and the concept of ‘public domain’ was established, though not
explicitly.

Statute of Anne
● first codified law - statute of Anne, which came into force on 10th April 1710.
● first legal articulation of real copyright.
● statute conferred upon the authors for the first time, the statutory right to benefit
from their literary works by conferring upon them the sole right to print their works, for a
limited period of twenty-one years for works published before the date of enactment i.e.
from 10th April 1710.
● Those works which were published subsequent to the enactment of the statute of Anne
enjoyed a protection of fourteen years.
 ● Prior to the Statute of Anne, the common law of England recognized a perpetual right of
property in the author’s “copy” in the manuscript, Statute of Anne ‘was designed to destroy the
bookseller’s monopoly of the book trade and to prevent its recurrence.
● The Act aimed at encouragement of learning and spread of knowledge and preservation of
culture.
○ the book's title had to be registered with the Stationer’s register and nine copies of the
same was to be deposited in libraries of the listed universities with an express prohibition
that such Universities shall not have a right to print such books which have been
deposited and the book were meant only for accessibility and advancement of
knowledge.
● Any person could now bring a complaint against the bookseller or the printer if
they charged a price which such a person conceived to be too high and unreasonable.
● Enhanced punishment was prescribed for repeating this offense after the price was settled and
the defaulting party was brought to book.
● This Act did not confer a monopolistic status to the authors but only secured them the right to
be entitled to their legitimate dues.
● The Copyright Acts of 1814, and 1842 increased the duration of protection from fourteen, to
twenty-eight, to forty-two years respectively.
● The booksellers tried their best to claim their copyright after the expiration of 21 years in the
pre-1710 works.
○ The case of Millar v. Taylor brought triumph to the Stationer as their perpetual
protection of copyright was upheld.
○ Five years later, the House of Lords overruled Millar’s decision that no perpetual
copyright existed in copyright law. This principle of balancing the exclusive right of
the author or publisher in the work came with the historic judgment of the House of
Lords in the case of Donaldson v.Beckett.
● First statute - opened the gates for the law of copyright in its true sense and
afforded protection to the authors for their creative works, as its prime objective, rather
than protecting the monopoly of publishers.

HISTORY OF COPYRIGHT LAW IN INDIA

● The first brush of India with copyright law happened in 1847 through an enactment during the
East India Company’s regime.
● affirmed the applicability of English copyright law to India.
 ● In the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years
post-mortem and could not exceed forty-two years on the whole.
● Though the author refused publication after his death, the Government had the authority to give
license for its publication.
● Acts of infringement - unauthorized printing of a copyright work for “sale, hire or export”, or “for
selling , publishing or exposing to sale or hire.
● Most importantly, the copyright in a work was not automatic unlike today.
● Registration of the work with the Home Office was mandatory for the protection of rights under
this Enactment.
● However, the Act specifically reserved the subsistence of copyright in the author, and his right to
sue for its infringement to the extent available in any other law except 1847 Act.
● copyright law had already been in the developing stage in Britain for over a century and the
provisions of the 1847 enactment were reflected in the later enactments.
● The Copyright Act 1911, while repealing earlier statues on the subject, was also made
applicable to all the British colonies including India.
● In 1914, the Indian Copyright Act was enacted which modified some of the provisions of
Copyright Act 1911 and added some new provisions to it to make it applicable in India. Indian
Copyright Act 1914 remained applicable in India until it was replaced by the Copyright Act
1957, in order to suit the provisions of the Berne Convention.
● The major change in 1914 amendment was the criminal sanction of infringement.

OTHER QUESTIONS

What were the changes brought about by the Copyright (Amendment) Act, 2012?
Analyze the need and importance of the changes brought about by the amendment.

HISTORY OF COPYRIGHT LAW IN INDIA

● The first brush of India with copyright law happened in 1847 through an enactment during the
East India Company’s regime.
● affirmed the applicability of English copyright law to India.
● In the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years
post-mortem and could not exceed forty-two years on the whole.
● Though the author refused publication after his death, the Government had the authority to give
license for its publication.
 ● Acts of infringement - unauthorized printing of a copyright work for “sale, hire or export”, or “for
selling , publishing or exposing to sale or hire.
● Most importantly, the copyright in a work was not automatic unlike today.
● Registration of the work with the Home Office was mandatory for the protection of rights under
this Enactment.
● However, the Act specifically reserved the subsistence of copyright in the author, and his right to
sue for its infringement to the extent available in any other law except 1847 Act.
● copyright law had already been in the developing stage in Britain for over a century and the
provisions of the 1847 enactment were reflected in the later enactments.
● The Copyright Act 1911, while repealing earlier statues on the subject, was also made
applicable to all the British colonies including India.
● In 1914, the Indian Copyright Act was enacted which modified some of the provisions of
Copyright Act 1911 and added some new provisions to it to make it applicable in India. Indian
Copyright Act 1914 remained applicable in India until it was replaced by the Copyright Act
1957.

COPYRIGHT AMENDMENT ACT 2012

● Amendments to rights in artistic works, cinematograph films and sound recordings

● WCT (WIPO Copyright Treaty) and WPPT (WIPO Performances and Phonograms Treaty)
related amendments to rights
● Author friendly amendments on mode of assignment and licenses to streamline
business practices
● Amendments to facilitate access to works further sub-classified into:
○ (a)Grant of compulsory licenses
○ (b)Grant of statutory licenses
○ (c)Administration of copyright societies
○ (d)Access to copyrighted works by the disabled
○ (e)Relinquishment (voluntarily give up) of copyright
● Strengthening enforcement and protecting against Internet piracy including WCT
and WPPT related provisions
○ Reform of Copyright Board and other minor amendments

THE RIGHT TO STORE- DIGITAL ENVIRONMENT

● Applicable to Artistic works, cinematographic films and sound recording

● Section 14 (c) dealing with the exclusive rights of the author in artistic works has been
amended to include 'the storing of it in any medium by electronic or other means.’
 ● Section 14(d) relating to the exclusive rights in respect of cinematograph film, has been
amended to include storing of a copy of the film in any medium by electronic or other
means.
● Section 14(e) relating to the exclusive rights in respect of sound recording, has been
amended to include storing of it in any medium by electronic or other means.
● The definition of 'cinematograph films' under section 2 (f) has been amended and it
now reads as 'any work of visual recording on any medium...’

EXTENSION OF COPYRIGHT DURATION FOR PHOTOGRAPHS

● After the new amendments section 22 reads as under:

○ Term of copyright in published literary, dramatic, musical and artistic works:
Except as otherwise hereinafter provided, copyright shall subsist in any literary,
dramatic, musical or artistic work published within the lifetime of the author until
sixty years from the beginning of the calendar year next following the year in
which the author dies.
○ Article 9 of WCT

FIRST OWNER IN RESPECT OF A WORK INCORPORATED IN A

CINEMATOGRAPH FILM

● Section 17 provides for the first owner of copyright. A combined reading of sections
17(b) and 17(c) clarifies that in case of commissioned cinematograph work, the
commissioning party and in case of employer-employee relationship, the employer
are considered to be the first owners of the work.
● The rights of the authors of literary, musical, dramatic and artistic works will
continue to be considered as the first owners of the said works even after the
incorporation of such work in a cinematographic films.

ASSIGNMENT

● Section 18 (1) provides that the owner of a copyright in any work or prospective
owner of a future work may assign the copyright.
● In the case of future work, assignment will come into force only when the work
comes into existence.
● No such assignment shall apply to any mode of exploitation that did not exist or was not
known in commercial use when the assignment was made.
● The author of a literary or musical work incorporated in a cinematograph film or
sound recording shall not assign the right to receive royalties in any form other than
as a part of the film or sound recording.

RELINQUISHMENT

● Amendments are made in the manner by which the author can relinquish his
copyright.
● Under section 21, after the amendment, the author of a work can even relinquish all or
any of the rights in the copyright in the work by way of a simple public notice.
 ● Prior to the amendment, the author could relinquish his copyright only by giving notice
to the Registrar of Copy.

LICENSES

● 2012 Amendment has simplified the procedure by requiring copyright licenses to be

only in writing
● Section 31 compulsory licensing has been made applicable to foreign works as well,
with an object of making foreign works capable of being licensed compulsorily in
case it is published elsewhere but withheld in India.

SPECIAL PROVISIONS FOR PERSONS WITH DISABILITIES

● A fair use provision has been added in Section 52 to provide exemption from copyright
for preparation of work in special formats such as Braille. A compulsory licence has
been provided for creation of work in such formats by business entities to whom the
exemption under Section 52 may not apply.
● A new Section 31 B has been introduced to provide compulsory licence in works for
the benefit of the disabled.

COPYRIGHT BOARD

● Section 11 relating to the constitution of the Copyright Board has been amended to make
it a body consisting of a Chairman and two members.
● Earlier it was 14 members board
● The current practice has been to appoint the Law Secretaries from State
Governments,some Directors of National Law Schools on a rotation basis.

DIGITAL RIGHTS MANAGEMENT INFORMATION

● A new section 65B has been introduced to provide protection of rights management
information and is expected to help the film, music and publishing industry in fighting
piracy.
● The rationale of the protection emanates from the practice in the digital world to
manage the rights through online contracts governing the terms and conditions of
use.

PROTECTION OF TECHNOLOGICAL MEASURES

● Section 65A has been introduced to provide for protection of technological measures
used by a copyright owner to protect his rights on the work.
● It emanates from Article 11 ofWCT and Article 18 ofWPPT.
● The rationale is to prevent the possibility of high rate of infringement (digital piracy) in
the digital media. Digital locks (technological protection measures - popularly known as
TPMs)
● Sections 65 A and 65 B is expected to help the film, music and publishing industry in
fighting piracy.
FAIR USE

● Fair use provisions have been extended to the digital environment.

● Any transient and incidental storage of any work through the process of ‘caching’
has been provided exceptions as per the international practice.
● Any deliberate storing of such works and unauthorized reproduction and
distribution of such works is an infringement under Section 51 of the Act attracting
civil and criminal liability.
● Except: education and research purposes as works are available in digital formats and in
the Internet

ANALYSIS

● Strengthen the rights of the authors

● Streamline the process of assignment and grant of licences,
● facilitate better access to works,
● and extend fair use provisions, in general and in particular to the Internet.
● Welcome reforms to administration of copyright societies and the Copyright Board
● Role of WCT & WPPT
● A way forward
● Regular checks and balance, violation of rights, Issue of Piracy should be effectively
tackled

FAIR DEALING

KB is an independent media platform that was using the videos of AT NEWS agency for
reporting purposes. AT NEWS agency sued KB media platform for using the video clips of the
recording for violation of rights under the Copyright Act, 1957. KB media platform took a plea
of the fair dealing doctrine under the Copyright Act, 1957 as these video clips were used to critic
the certain ongoing news items/ issues. Discuss the concept of fair dealing in the light of the
above situation. Explain the relevant provisions under the Copyright Act, 1957 with examples
and case laws.

Fair use is a doctrine in copyright law that allows limited use of copyrighted material without
requiring permission from the rights holders.

● The term "fair use“ originated in the United States, but a similar principle of fair
dealing exists in other common law and civil law jurisdictions.

Under Indian regime legal framework being the Copyright Act, 1957, section 52 lays
down certain acts or works that cannot be considered as an infringement of
copyright

The specific use of a work is probably "fair" if:

1. It involves only a relatively small portion of the work. (i.e. that’s why plagiarism
below 10% is allowed)
2. It is for educational or other noncommercial purposes. (i.e. professors’ teaching)
 3. It is unlikely to interfere with the copyright owner's ability to market the original
work. (i.e. does not disturb the og marketability)
4. It is Published. (open source platform)

Some Generally Accepted Conditions for Fair Use are:

1. Criticism and Comment: quoting or excerpting a work in a review or
criticism for purposes of illustration or comment is considered fair use.
2. News Reporting: summarizing an address or article, with brief
quotations, in a news report is fair use.
3. Research and Scholarship: quoting a short passage in a scholarly, scientific,
or technical work for illustration or clarification of the author's observations
is not a violation of fair use.
4. Non-profit Educational Uses: photocopying of limited portions of written
works by teachers for classroom use is fair use.
5. Parody: a work that ridicules another, usually well-known, work by
imitating it in a comic way does not violate fair use.
6. Non-commercial Use is Often Fair Use: the fact that a work is published
primarily for private commercial gain often weighs against a finding of fair
use.
7. Benefit to the Public may be Fair Use: the fair use rule recognizes that
society can often benefit from the unauthorized use of a copyrighted work if
the result is an informed public or it serves the end of scholarship or
education.

FACTORS OF FAIR USE

● Purpose of use: Use of copyrighted material for the purpose of criticism or
review of another work or its performance or reporting current events, does
not amount to infringement.(However, it should be accompanied by an
acknowledgement).
● Nature of work: This refers to the characteristics of the work that has been used.
If a major part or essential feature of the work has been used, it amounts to
infringement. But if only few features of the work are used which do not affect
the original, it does not amount to infringement.
It should also be taken into consideration whether the work is published or
unpublished, and whether circulated or not in case of an unpublished work.
● Amount of work: Both the quality and quantity of the copyrighted work used
have to be considered to measure whether it has been copied. Even if only a
small portion is copied, and it is a substantial part of the work, it is
infringement. For instance, to take a long extract and attach short comments
may be unfair; but to take short extracts and attach long comments may be
fair.
● Effect of Work: The fourth factor measures the effect that the allegedly infringing
use has had on the copyright owner's ability to exploit his original work. The court
not only investigates whether the defendant's specific use of the work has
 significantly harmed the copyright owner's market, but also whether such uses in
general, if widespread, would harm the potential market of the original.

DEBATE ON WHAT CONSTITUTES AS FAIR USE

Whether a person's use of copyright material is fair depends on the circumstances of
the case. The line between fair use and infringement is a thin one. There are no
guidelines that define the quantum of copyright material that can be used
without permission from the author. Only the courts can rule whether it is fair use
or infringement that is involved. A copy should be such that it does not affect the
substantial interest of the owner.

CASE LAWS
The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services
(2016): This case, commonly known as the Delhi University photocopy case, involved a dispute between
publishers and a photocopy shop over the reproduction of copyrighted educational materials for
distribution to students. The Delhi High Court held that making copies of copyrighted materials for
educational purposes, as long as it is not for profit, could be considered fair dealing under Section 52(1)
(a) of the Copyright Act.

Entertainment Network (India) Ltd. v. Super Cassettes Industries Ltd. (2018):

This case dealt with the issue of broadcasting songs in radio programs. The Supreme
Court of India held that the broadcasting of songs for entertainment purposes on the
radio constituted fair dealing under Section 39 of the Copyright Act, as it fell within the
scope of reporting current events.

Tips Industries Ltd. v. Wynk Music Ltd. (2019): involved the licensing and royalty
rates for the streaming of copyrighted songs. While the primary issue was not fair use
itself, the Bombay High Court acknowledged that users of the streaming platform could
avail themselves of fair dealing exceptions for private study, research, criticism, or
review.

Short notes: (Any two)

● Fair Use Doctrine (2)

● Copyright (Amendment) Act, 2012 (3)

1. Copyright Boards

Introduction:

The Indian copyright legislation namely the Copyright Act, 1957 provides for three important
authorities and institutions for registration of copyright, effective protection of copyright and also for
better enforcement of the copyright of owners and others. They are: Copyright Office, Copyright
Board and Copyright Societies

Copyright Board:

● It is a body constituted under the Copyright Act for the discharge of certain judicial functions
under the Act.
● Constituted by the Central Government (Section 11 of the Act)
● The Board was constituted in 1958
● Not a standing body
● Created under Section 11
● Functions under Section 12

CONSTITUTION OF THE BOARD

1. Chairman
2. Two members
3. The Registrar of the Copyright will perform all secretarial functions of the Copyright Board
● The current practice has been to appoint the Law Secretaries from State Governments,
some Directors of National Law Schools on a rotation basis.

QUALIFICATIONS OF CHAIRMAN

● Is either a High Court Judge

● Has been a Judge of a High Court
● Is qualified for appointment as a Judge of a High Court
● The current practice has been to appoint the Law Secretaries from State Governments, some
Directors of National Law Schools on a rotation basis.

TERM OF CHAIRMAN AND MEMBERS

● Five years
● Eligible for reappointment

POWERS AND PROCEDURE OF COPYRIGHT BOARD (Section 12 of the Act)

● Hear appeals against the orders of the Registrar of Copyright
● Power to regulate its own procedure – fixing of places and times of its sittings
● Hear any proceedings instituted before it within the zone.
● For this purpose the territory of India has been divided into the following zones:
○ The Northern zone The Central zone The Eastern zone The Western zone The
Southern zone
● Discharge its functions through the Benches constituted by the Chairman
● The Bench shall consists of members
○ each Bench consisting of not less than 3 members
● Special Bench consisting of 5 members if the matter is of importance
● Difference of opinion among the members of a Bench – Opinion of the majority shall prevail
● No such majority – the opinion of the Chairman shall prevail
● The Chairman may authorize any of its members to exercise any powers conferred on it by
Section 74
 ● Members shall not take part in any proceedings in which he has a personal interest
● The Copyright Board shall not be questioned on the ground merely of the existence of any
vacancy in or defect in the constitution of the Board

FUNCTIONS OF THE COPYRIGHT BOARD

● To decide whether a work has been published or as to the date on which the work was
published
● To settle disputes arising in respect of assignment of copyright
● To grant compulsory licenses in respect of Indian works withheld from public (Section 31A)
● To grant compulsory licenses to publish unpublished Indian works (31A)
● To grant compulsory licenses to produce and publish translation of literary and dramatic
works (Section 32)
● To grant compulsory licenses to reproduce and publish certain categories of literary,
scientific or artistic works for certain purposes (Section 32A)
● To rectify the register on the application of Registrar of Copyright or of any person
aggrieved (Section 50)

APPEAL - An appeal against all orders except under Section 6 lies to the High court [Section 72 (2)]
Within 3 months

STATUS OF COPYRIGHT BOARD -

● The Copyright Board shall be deemed to be a Civil Court and have the powers of a Civil
Court: The Copyright Board is deemed to be a civil court for the purposes of Sections 345 and
346 of the Code of Criminal Procedure, 1973. (Section 12)
● Summoning and enforcing the attendance of any person and examining him on oath (this
jurisdiction extends to the whole of India)
● Requiring the discovery and production of any document
● Receiving evidence on affidavit
● Issuing commissions for the examination of witnesses and document
● Requisitioning any public record or copy thereof from any court or office
● Any other matter which may be prescribed
● Deemed to be a decree of a civil court and will be executable in the same manner as a decree
of the civil court.
● No suit or other legal proceedings can be taken – done in good faith

2. Copyright Society (2)

● a body created by private agreements or by copyright law
● collects royalty payments from various individuals and groups for copyright holders
● have the authority to license works and collect royalties as part of a statutory scheme
or by entering into an agreement with the copyright owner

Need for Copyright Societies

 ● To protect the rights of copyright owners, performers and other holders of copyright, the
Copyright Act, 1957, keeping pace with international treaties, provides for the
establishment of copyright societies
● Remains one of the simplest and most reliable means for collecting and distributing
royalties to rights owners for the use of their protected works, especially in the field of
music

Functions of Copyright Societies

● The primary functions include:

○ Licensing works in which they hold the copyright or for which they act as an
agent on behalf of the members for specific uses;
○ monitoring use of works and collecting revenues;
○ distributing revenues as royalties to members; and
○ entering into reciprocal arrangements with foreign collecting societies to
collect and distribute local royalties earned overseas to local rights holders.

Copyright Societies in India

● Society for Copyright Regulation of Indian Producers for Film and Television
(SCRIPT) for cinematography and television films;
● The Indian Performing Right Society Limited (IPRS) for musical works;
● Phonographic Performance Limited (PPL) for sound recordings; and
● Indian Reprographic Rights Organization (IRRO) for reprographic (photo copying)
works.

Registration of Copyright Societies Section 33

● Persons or association of persons may apply for registration of copyright society to the
Registrar of Copyrights;
● The Central Government shall not register more than one copyright society to do
business in respect of the same class of works;
● Every such society shall get itself registered within a period of one year from the date
of commencement of the Copyright (Amendment) Act, 1994;
● The minimum membership required for registration of society is seven.

Inquiry, Cancellation & Suspension of Registration of Copyright Society

● The Central Government may, if it is satisfied that a copyright society is being

managed in a manner detrimental to the interests of the owners of rights concerned,
○ cancel the registration of such a society after making such inquiry, after which
the Central Government may by order, suspend the registration for a period
of one year and appoint an administrator to discharge the functions of the
copyright society.

Administration of right of owner by Copyright Society- Section 34

 ● Copyright society accept from an owner, an exclusive authorization to administer any
right in any work by issue of licenses or collection of license fees or both;
● Owner has rights to withdraw such authorization without prejudice to the rights of
the copyright society under any contract ;
● Copyright society enters into an agreement with any foreign society or organization
administering rights corresponding to rights under Copyright Act.

Payment of remuneration by Copyright Society- Section 34A

● The Copyright society shall, frame a scheme for determining the quantum of
remuneration payable to individual copyright owners having regard to the number
of copies of the work in circulation:
○ Provided that such a scheme shall restrict payment to the owners of rights
whose works have attained a level of circulation that the copyright society
considers reasonable.

Other Functions - Meetings, Accounts and audits, Annual general meeting of owners of
rights, Returns to be filed with the Registrar of copyrights

3. WIPO Copyright Treaty, 1996

Basics

● Protection in digital environment

● Economic rights in addition to berne
● Computer programmes and compilations of data
● Member - has to apply Paris Act
● Duration 50 years
● 1996-2002

The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that
deals with the protection of works and the rights of their authors in the digital environment.
Further, it recognizes the rights specific to the digital environment, of making work available, to
address "on-demand" and other interactive modes of access. WCT recognizes
(i) computer programs, whatever the mode or form of their expression; and (ii) compilations of
data or other material ("databases"), in any form, which, by reason of the selection or
arrangement of their contents, constitute intellectual creations, as separate subject matters
protectable under the copyright laws. In addition to this, apart from the rights granted to the
author under the Berne Convention, the WCT also grants the following rights to the author of the
work:

○ the right of distribution - by sale or ToP

○ the right of rental -- computer programmes, cinematographic works, phonograms
○ a broader right of communication to the public - wired or wireles
RIGHTS GRANTED BY THE WIPO COPYRIGHT TREATY (WCT)
Apart from the rights recognized by Berne Convention, some other rights that are granted to the
authors by the treaty are as follows:
1. The right to distribution- This right authorizes the author to make available the to the public of
the original or copies of the work of the author through sale or transfer of ownership.

2.The right of rental- This right authorizes the author commercial rental of three kinds of work,
i.e.-

● Computer programs (does not include the work where the computer program itself is not
the essential object of the rental)
● Cinematographic works (Only where due to commercial rental there is widespread
copying of such work, materially impairing the exclusive right of reproduction)
● works embodied in phonograms as determined in the national law of Contracting Parties
(except for countries which, since April 15, 1994, have had a system in force for
equitable remuneration of such rental)

3. Right of communication to the public- This right authorizes the author to communicate his
work by way of any wire or wireless means etc.

Limitations/Exceptions
"Threestep" Test- Article 10 of WIPO COPYRIGHT TREATY laid down the "Threestep" test,
to determine limitations and exceptions as provided for, in Article 9(2) of Berne Convention that
is applicable to all rights.

4. Minimum standards of protection under Berne Convention

The Berne Convention is an international agreement focused on the protection of works and the
rights of their authors. It is built on three key principles and includes provisions for minimum
protection standards, as well as special measures for developing countries. Here's a simplified
overview:

Three Basic Principles:

1. National Treatment: Works from one Contracting State must receive the same
protection in other Contracting States as those countries provide to their own nationals.
2. Automatic Protection: Protection is granted without the need for any formalities.
3. Independence of Protection: Protection in one country is independent of whether the
work is protected in the country of origin. However, if the country of origin's protection
expires, other countries may also cease protection if their terms are longer.

Minimum Standards of Protection:

1. Scope of Works Protected: Includes all literary, scientific, and artistic works, regardless
of form.
 2. Exclusive Rights: Authors have exclusive rights to authorize translations, adaptations,
public performances, broadcasts, reproductions, and use in audiovisual works. Moral
rights, such as claiming authorship and objecting to derogatory treatments of the work,
are also recognized.
3. Duration of Protection: Generally lasts until 50 years after the author's death, with some
exceptions for anonymous, pseudonymous, audiovisual, applied art, and photographic
works.

Minimum standards

EVERY PRODUCTION Article 2 (1)

● the right to translate,

● the right to make adaptations and arrangements of the work,
● the right to perform in public dramatic, dramatico- musical and musical works,
● the right to recite literary works in public
● the right to communicate to the public the performance of such works,
● the right to broadcast,
● the right to make reproductions in any manner or form,
● the right to use the work as a basis for an audiovisual work, and the right to reproduce,
distribute, perform in public or communicate to the public that audiovisual work.

Limitations and Exceptions:

● Certain uses of protected works are allowed without authorization, such as reproduction
in special cases, use for teaching, reporting current events, and ephemeral recordings for
broadcasts.

Special Provisions for Developing Countries:

● Developing countries can implement non-voluntary licenses for translation and

reproduction of works for educational purposes, allowing use without authorization but
requiring payment of fixed remuneration.

History and Membership:

● Established in 1886, the Berne Convention has been revised several times, with major
updates in 1896, 1908, 1928, 1948, 1967, 1971, and 1979. It is open to all states, and
ratification or accession documents must be submitted to the Director General of WIPO.

6. International conventions related to Copyright

1. The Berne Convention for the Protection of Literary and Artistic Works, 1886

The Berne Convention is the oldest international Convention in the field of copyright providing
the minimum standards of protection. While enacting the law in respect of the literary and
artistic, this convention has to be compiled which lays down fundamental principles that are
capable of universal application in a manner equitable to all interested in the right.

2. The Universal Copyright Convention (UCC)

The Universal Copyright Convention (UCC) was initially adopted in 1952, with protocols added
in Paris on July 24, 1971. This Convention aims to promote the wider dissemination of creative
works and enhance international understanding.

The preamble states that the Convention was created because contracting states believed that a
global copyright protection system, expressed through a universal convention, would
complement existing international systems. This would ensure respect for individual rights and
foster the growth of literature, sciences, and the arts.

The Convention provides effective protection for the rights of authors and other copyright
holders in literary, scientific, and artistic works. This includes writings, music, drama, films,
paintings, engravings, and sculptures. It ensures that nationals of contracting states receive the
same protection for their published and unpublished works in other contracting states.

Protection covers works in their original form and any form derived from the original. If a
dispute arises between contracting states regarding the interpretation or application of the
Convention and cannot be resolved through negotiation, it will be referred to the International
Court of Justice unless another settlement method is agreed upon.

3. The WIPO Internet Treaties

The WIPO Performances and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty
(WCT), both established in 1996, are collectively known as the Internet Treaties.

WIPO Copyright Treaty (WCT), 1996

The WCT is a special agreement that countries part of the Berne Convention can join without
affecting their Berne Convention obligations. This treaty requires that:

● Computer programs are protected by copyright, regardless of how they are expressed.
● Compilations of data or databases are protected if their content selection or arrangement
constitutes an intellectual creation.

Key Articles of WCT

● Article 11 and 12: These articles mandate that countries provide legal remedies against
the circumvention of technological measures used by authors to protect their rights and
against the alteration or removal of rights management information (such as data
identifying the work or its author).

WIPO Performances and Phonograms Treaty (WPPT), 1996

Key Articles of WPPT

 ● Article 18 and 19: These articles address obligations related to technological measures
and rights management information, specifically for performers and producers of
phonograms.

Objectives of Both Treaties

● Prohibit Circumvention: The treaties prohibit bypassing technological measures that

control access to copyrighted works.
● Protect Rights Management Information: They aim to preserve the integrity of copyright
management information, which includes details like the title of the work, author’s name,
copyright owner information, terms, and conditions for using the work. Infringers often
provide false copyright management information to conceal their violations.

Conformity of Indian Law with WIPO Treaties

India has aligned its Copyright Act of 1957 with the WIPO Treaties by introducing new sections
through the 2012 Amendment Act. The government approved accession to the WIPO Copyright
Treaty and the WIPO Performance and Phonograms Treaty, introducing:

● Section 65A: Addresses the circumvention of technological measures.

● Section 65B: Pertains to the protection of rights management information.

These changes ensure that Indian law conforms to the requirements of the WIPO Internet
Treaties.

7. Economic and Moral Rights

Moral rights were recognized for the first time in France and Germany. The Human Rights
perspective of Moral Rights found in Article 27(2) of the Universal Declaration of Human
Rights, 1948 protects the moral rights of the author of the work. These human rights were not
documented, so a stricter provision for protecting the moral rights was needed. This gave rise to
the International convention for copyright called as Berne Convention, 1886. Moral rights were
included in Article 6bis of the Berne Convention.

Moral rights in India

Moral rights are recognized under Section 57 of the Copyright Act, 1957. The right of paternity,
right of dissemination, right of integrity, and right to retraction are available under this section.
Waiver of moral rights is permitted if it is against public policy. The duration of moral rights will
be during the author’s lifetime plus seventy years after his death. Earlier, moral rights were only
limited to literary works, but the court in Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd and
Ors held that moral rights should also be applied to visual and audio works. Moral rights also
apply to computer programs.

Types of moral rights

 ● Right to Paternity Assertion: It includes publicly declaring the name of the owner in
which a certain kind of appreciation is attached. Example: name of the author in
reproduction and adoption of the work. Pseudonyms - Sometimes author doesn't give
their real name along with their work, instead a pen name in order to not disclose their
identities. Paternity - The person is the father of the work, they can declare publicly that
they have created it.
● Right to Integrity: Materially distorting the work, altering it, destroying even if it is sold
as the real work will be gone, only the father can distort or destroy it and not even the
new owner.
● Right against False attribution: Falsely representing yourself as the owner is unacceptable
as the real owner can come up and claim that the other person is falsely representing his
work.
● Right to privacy: The owner has the right to keep his work with himself as he is the
creator initially, it is up to him whether to keep it private or not.
● Right to publish the work: Once the work is complete, the creator has the right to publish
it. Nobody else can publish on his behalf as he is the creator.
● Right to withdraw published work from sale: Example: if a novel made by "A" is getting
sold, he can reclaim it.
● Right to withdraw the work or destroy it until and unless it is against public policy.
● Right to prevent violation of the author's expression.

Moral rights are created on work as soon as a copyright is created on a work. No registration is
necessary to exercise moral rights at work. Some countries require that the author must assert his
moral rights to exercise them, i.e Europe. Moral rights cannot be transferred or assigned to a
person. However, moral rights can be transferred to legal representatives of the author upon his
death.

Moral rights are related to:

● Artistic works, Literary works, Dramatic works, Musical works, Films, Performances
both live and recorded
● However, moral rights are not assigned in works related to sound recordings.

Amarnath Sehgal v/s Union of India

When the Vigyan Bhawan was made, Amarnath was the person who made 2 (Murti) Statues
there. When the renovation was done his Murti got destroyed not intentionally but by negligence
of the workers and then it was removed without even considering it to be repaired or put back in
a better condition. Amarnath being the creator, the father of the work has the paternity right over
it meaning that even if he did not have the authority but at least his name was attached to his
work.
Economic Rights

Any right that yields or payoffs the owner monetarily are said to be the economic rights. The
economic right of the owner are been listed out in Section 14 of the principal Act, under the
meaning of copyright.

1. Right to reproduce the work

a. Reproduction is an act of copying from the previously finished works or giving it
a differential form by adding, editing or modifying the same. In short in means the
right to copy. Such right shall exclusively be exercised by the owner of the work
and shall not be infringed by any other person since the act of reproduction of the
work may economically make benefits to its owner.
2. Right to distribute in market
a. Similar to the right of reproduction, the owner of the copyrighted work also has a
right to distribute in the market and make money out of it. The act of distribution
may be in the form of sale, lending for free or for a consideration, rental, or free
distribution by the way of gift
3. Right to communicate to the public
a. It means letting or making the product/work available to the public by way of
broadcasting, simulcasting or webcasting. If a person not being the owner of the
work, communicates it to the public would amount to the act of infringement
4. Right to adaptation
a. Conversion, alteration, transcription or rearranging a copyrighted work means and
includes the right of adaptation. These rights are exclusively available only to
musical, literary or dramatical works and are not extended to the computer
programmes. Although the right of adaptation are being protected by the statute, it
is also been governed by the principles laid down under a classical case, by the
Privy Counsel, in Macmillan and Company Ltd. V K. and J. Cooper[3].
5. Right to translate
a. The owner of the copyrighted work has a right to translate his work to any other
languages he wants.

8. Acts do not constitute Copyright Infringement

Section 52 of the Copyright Act lists various actions that do not constitute copyright
infringement. Here is a detailed overview including the relevant sections:

1. Fair Dealing (Section 52(1)(a)):

○ Fair dealing with any work (except computer programs) for:
■ Private or personal use, including research.
 ■ Criticism or review.
■ Reporting of current events and current affairs, including public
lectures.
○ Storing any work in any electronic medium for the above purposes, including
incidental storage of non-infringing computer programs.
2. Reproduction for Judicial and Legislative Purposes (Section 52(1)(b) - 52(1)(e)):
○ Reproduction for judicial proceedings and reports thereof.
○ Reproduction exclusively for use by members of the legislature.
○ Reproduction (excluding artistic work) in a certified copy made or supplied in
accordance with the law.
○ Reading or recitation in public of extracts from literary or dramatic works.
3. Educational and Instructional Uses (Section 52(1)(h) - 52(1)(i)):
○ Publication in educational collections.
○ Reproduction by teachers or students during instruction or in exam papers.
○ Performance in the course of activities of educational institutions under certain
circumstances.
4. Specific Performances and Recordings (Section 52(1)(l) - 52(1)(n)):
○ Making sound recordings under specific conditions.
○ Playing sound recordings in enclosed rooms or clubs under certain
circumstances.
○ Performances in amateur clubs for non-paying audiences or religious
institutions.
5. Reproduction in Media (Section 52(1)(p) - 52(1)(s)):
○ Reproduction of articles on current topics in newspapers and magazines.
○ Reporting of public lectures in newspapers or magazines.
○ Making up to three copies for use in public libraries.
○ Reproduction of unpublished works in museums or libraries for study or research.
6. Government and Judicial Publications (Section 52(1)(t) - 52(1)(u)):
○ Reproduction of matter published in official gazettes or government reports.
○ Reproduction of judgments or orders of courts or other judicial authorities.
7. Translations and Artistic Works (Section 52(1)(w) - 52(1)(za)):
○ Producing or publishing translations of legislative acts or rules.
○ Making or publishing paintings, drawings, or photographs of architectural works
or public artistic works.
○ Including artistic works in films if they are part of the background or incidental.

Computer Programs (Section 52(1)(aa), Section 52(1)(ad), Section 52(1)(b)):

● Making copies or adaptations of a computer program by the lawful possessor for:

○ Using the program as intended.
○ Creating backup copies for temporary protection.
○ Interoperability with other programs if information is not readily available.
○ Studying or testing the program to understand its principles.
○ Non-commercial personal use.
○ Incidental storage during electronic transmission or communication to the
public.
Key Legal Decisions:

● Academy of General Education Manipal vs. B. Malini Mallya: The Supreme Court
clarified that Section 52 outlines actions that do not infringe copyright, such as fair use
for private purposes, research, or criticism. Educational institutions performing works for
non-paying audiences or under amateur status are also protected.
● Civic Chandran vs. Ammini Amma: The Kerala High Court ruled that significant
copying under fair dealing is acceptable if it serves the public interest.

These provisions aim to balance the rights of copyright holders with the public interest in
accessing and using copyrighted works for specific, permissible purposes.

Broadcasting Organizations and Performers Rights

Introduction

● Rights of performers, record producers and broadcasting organizations are referred to as

neighboring rights because they have developed parallel with copyright
● They are intermediaries for disseminating and broadcasting the works of authors to the
public
● Although performers spend sufficient skill and labor to merit copyright protection their
rights were not recognized till the first half of the last century for two reasons:
○ During the formative period of copyright – the actors or strolling players were
regarded as vagrant – Players, musicians were considered as unproductive
labor.
● Before the Copyright (Second Amendment) Act of 1994 the copyright Act 1957 did not
confer any rights on the performer.

Meaning of Broadcast

● Section 2 (dd) "broadcast" means communication to the public-

○ (i) by any means of wireless diffusion, whether in any one or more of the forms of
signs, sounds or visual images; or
○ (ii) by wire, and includes a re-broadcast;

Section 37 – Broadcasting Reproduction Rights

1. Every broadcasting organization has a special right called "broadcast reproduction right"
for its broadcasts.
2. This right lasts for 25 years from the start of the year after the broadcast is made.
3. While this right is in effect, anyone who does any of the following without permission
from the rights owner is infringing on this right: (a) Rebroadcasts the original broadcast.
(b) Makes the broadcast available for the public to hear or see for a fee. (c) Creates any
audio or video recording of the broadcast. (d) Copies any such recording if the initial
recording was made without permission, or if it was made with permission but used in
ways not allowed by the license. (e) Sells or rents out any such recordings mentioned in
points (c) or (d).
These actions are considered violations of the broadcast reproduction right, subject to the
provisions of Section 39.

Section 2 (qq)

● A "performer" is anyone who makes a performance, such as an actor, singer, musician,

dancer, acrobat, juggler, conjurer, snake charmer, or a person delivering a lecture.
● However, in a film, a person whose performance is casual or incidental and is not
typically acknowledged, including in the credits, is not considered a performer, except for
the purpose of clause (b) of section 38B.

Section 38 – Performer's Right

1. When a performer takes part in a performance, they have a special right called the
"performer's right" for that performance.
2. This right lasts for 50 years from the start of the year after the performance takes place.

Section 38 A – Exclusive Right of Performers

● Performers have an exclusive right, in addition to the rights given to authors, to control or
allow certain actions related to their performances, including:
○ Making a sound or visual recording of the performance.
■ Reproducing it in any form, including storing it electronically.
■ Issuing copies to the public that are not already available.
■ Communicating it to the public.
■ Selling or renting copies commercially, or offering them for sale or rent.
○ Broadcasting or communicating the performance to the public, unless it has
already been broadcast.
● If a performer agrees in writing to include their performance in a film, they cannot stop
the film producer from using the performance, unless there is a contract saying otherwise.
However, the performer is entitled to royalties if the performance is used commercially.

Section 38B - Moral Rights of the Performer

A performer has certain moral rights that are independent of any other rights they may have
assigned, either wholly or partially:

● The right to be identified as the performer of their performance, unless the omission is
due to the way the performance is used.
● The right to prevent or seek damages for any distortion, mutilation, or other
modifications of their performance that could harm their reputation.

Explanation: It is clarified that removing parts of a performance for editing, fitting it within a
limited duration, or making technical modifications does not count as harming the performer’s
reputation.
Section 39 - Acts Not Infringing Broadcast Reproduction Right or Performer’s
Right

No broadcast reproduction right or performer’s right is considered infringed if:

(a) A sound or visual recording is made for private use or for genuine teaching or research
purposes.

(b) Excerpts of a performance or broadcast are used, in line with fair dealing, for reporting
current events or for genuine review, teaching, or research purposes.

(c) Any other actions, with necessary adaptations and modifications, that do not count as
copyright infringement under section 52.

TRIPS

● TRIPS came into force in 1995, following the establishment of the WTO.
● The agreement sets minimum standards for the protection and utilization of seven
forms of intellectual property.
● All WTO member states are bound by the TRIPS Agreement.

The TRIPS Agreement requires countries to follow the basic standards of the Berne
Convention but also adds some specific clarifications and enhancements.

Protection Scope – Expressions Over Ideas (Article 9.2)

The TRIPS Agreement makes it clear that copyright protection applies to the way ideas are
expressed, not the ideas themselves. For example, while a written description is protected, the
idea, method, or mathematical concept described is not.

Computer Programs as Literary Works (Article 10.1)

The TRIPS Agreement states that computer programs, whether in source code or object code, are
protected as literary works under the Berne Convention. This means:

● Computer programs are clearly protected by copyright.

● All Berne Convention rules for literary works also apply to computer programs.
● The format (source or object code) doesn't affect their protection.
● Only the same limitations that apply to literary works can apply to computer programs.
● The standard protection period of 50 years applies to computer programs.

Databases and Their Protection (Article 10.2)

Databases, including compilations of data or material, are protected by copyright if their

selection or arrangement is considered an intellectual creation. This means:

● Databases are protected regardless of their format (e.g., machine-readable or not).

● The structure of the database is protected, not the individual data within it.
 ● Existing copyright on the data or material inside the database remains unchanged.

Rental Rights for Computer Programs and Cinematographic Works (Article 11)

The TRIPS Agreement gives authors specific rights regarding the commercial rental of their
works, especially computer programs and certain cinematographic works.

● Authors have the exclusive right to permit or forbid the commercial rental of their
works, especially computer programs.
● For films, this rental right depends on whether renting them leads to extensive copying
that harms the author's reproduction rights.
● For computer programs, the rental right does not apply if the program is not the
primary focus of the rental.

Duration of Protection (Article 7(1) & Article 12)

The general rule from the Berne Convention, included in the TRIPS Agreement, is that copyright
lasts for the author's lifetime plus 50 years. However, there are exceptions:

● Article 7(1) allows for shorter terms in specific cases.

● Article 12 sets a minimum of 50 years of protection from the year of publication if the
work is published, or 50 years from creation if not published within 50 years.

Limitations and Exceptions (Article 13)

Article 13 states that any limitations or exceptions to exclusive rights must be:

● Limited to specific special cases.

● Not conflicting with the normal use of the work.
● Not causing unreasonable harm to the copyright holder's interests.

This applies to all allowable limitations and exceptions under the Berne Convention and its
Appendix, which are part of the TRIPS Agreement. The goal is to balance the rights of creators
with the public interest.

9. Difference between Assignment and Licensing of Copyright

Assignment of Copyrights (Section 18)

Copyright owners can assign their rights to others, transferring all related rights to the assignee.
However, merely granting publishing rights does not equate to an assignment of copyright. If an
assignee gains specific rights, they are treated as the copyright owner for those rights, while
unassigned rights remain with the assignor. If the assignee dies before completing the task, their
legal representatives inherit the assignment benefits.

In Video Master v. Nishi Production, the Bombay High Court ruled that video rights
assignment does not include satellite broadcast rights, which are separate and can be assigned
independently.
Mode of Assignment (Section 19)

A copyright assignment is valid only if it is in writing and signed by the assignor or their
authorized representative. The assignment should specify the work, rights granted, duration,
territorial scope, and royalty details, if any. If not specified, the duration defaults to five years,
and the territorial scope applies to all of India.

Section 19(8) states that assignments violating the terms set by copyright organizations for their
members are void. Sections 19(9) and 19(10) ensure authors retain equal royalties for works used
in films or sound recordings.

In Saregama India Ltd v. Suresh Jindal, it was held that future work copyrights can be
assigned, and the assignee becomes the copyright owner once the work is created.

Disputes Over Assignment (Section 19A)

If an assignee fails to utilize their rights and the failure is not due to the assignor's actions, the
Appellate Board can revoke the assignment upon the assignor's complaint. The Board can also
resolve disputes and order the recovery of royalties.

Assignment by Operation of Law (Section 20)

If a copyright owner dies intestate, the copyright passes to their personal representative. If the
work is unpublished, the heir inherits the copyright unless stated otherwise in the will.

Licensing of Copyright

The owner of a copyright can grant a license to perform any of the acts they have exclusive
rights over. There are different types of licenses:

Voluntary License (Section 18)

The author or copyright owner has the exclusive right to their work and can grant a license for it.
According to Section 30 of the Copyright Act 1957, a copyright owner can license any interest in
their work through a written agreement, which must be signed by the owner or their authorized
representative. Licenses can be granted for both existing and future works. If a licensee of a
future work dies before the work is created, they or their representatives still benefit from the
license. The licensing agreement should include details such as:

- Duration of the license

- Rights granted
- Territorial scope
- Royalty payments
- Terms for revision, extension, and termination
Compulsory License

Compulsory licenses are issued when the copyright owner unjustifiably refuses to grant a license.
These licenses affect who the owner can do business with and the terms, including royalty rates.
Owners can still negotiate licensing agreements but have less control over the licensee's identity
and the royalties. A compulsory license is usually granted after a specific request to the
appropriate authority.

Statutory License

Statutory licenses do not require an investigation into the owner's behavior. They apply broadly
to eligible works, setting royalty rates and issuing standardized licenses to all who wish to use
them. The owner has no control over who receives the license or the royalties they pay. Two
types of statutory licenses include:

- Cover version recording licenses (Section 31C)

- Broadcasting licenses (Section 31D)

Cover version licenses have been part of the fair dealing exceptions in Section 52, while
broadcasting licenses were added in the 2012 amendment.

Conclusion
The terms "assignment" and "licensing" are not synonymous. A license is not the same as an
assignment. In general, unless otherwise stated, the assignee becomes the owner of the assigned
work, but in the event of a license, the licensee merely receives the right to exercise specific
rights. An assignment might be broad, i.e. without restrictions, or specific, i.e. with restrictions.
It could be for the entire copyright term or just a portion of it. As stipulated by Section 14 of the
Act, an assignment transfers an interest in and deals with copyright, whereas a license does not
convey the copyright but merely offers permission to do something that would be illegal
otherwise. An assignment grants copyright ownership, but a license just allows the licensee to do
specific things. The assignee who has been given the copyright title may reassign it.

5. Registration Process Copyright

Importance of Copyright Registration

Registering a copyright provides significant advantages, protecting the ownership of the work
and helping to avoid disputes. In the event of a copyright infringement dispute, a certificate of
registration and the Register of Copyrights are considered "admissible evidence" in court,
serving as prima facie evidence of ownership.
Procedure of Copyright Registration:

Chapter X of the Indian Copyright Act, 1957, and Rule 70 of the Copyright Rules, 2013, outline
the following procedure for registering copyrights in India:

1. Application:

● An author or their authorized representative can file the application for copyright
registration. This can be done physically at the copyright office, through post, or via the
e-filing facility on the official Copyright Office website (copyright.gov.in).
● Each application should be for one work and submitted using Form IV, accompanied by
the requisite fee, which ranges from 500 INR to 40,000 INR, depending on the work.
Payment can be made by Demand Draft, Indian Postal Order favoring “Registrar of
Copyright Payable at New Delhi,” or through e-payment.
● The application must include:
○ Name, address, and nationality of the applicant.
○ Applicant’s interest in the work.
○ Title of the work.
○ Name, address, and nationality of the author, and if deceased, the date of death.
○ Language of the work.
○ Publication status of the work:
■ Year and country of first publication and details of the publisher.
■ Subsequent publications' details if any.
○ Details of the person authorized to assign or license the rights, if applicable.
○ Two copies of the manuscript if the work is unpublished.
○ Source and object code for computer programs.
○ Statement and no-objection certificate from the Registrar of Trademarks for
artistic works related to goods.
○ Affidavit stating non-registration under the Designs Act, 2000, for artistic works
capable of design registration.
○ Applicant’s signature or that of their advocate.
○ Applicant’s mobile number and email address for notifications.

2. Examination:

● After submission, a diary number is issued. There is a mandatory 30-day wait period for
any "No Objection" to be filed. If an objection is raised, the Registrar of Copyrights will
hear both parties and decide on the matter. Once resolved or if no objections are raised,
the application is scrutinized, and the applicant may need to correct any discrepancies
within 30 days.

3. Registration:

● If the Copyright Registrar is satisfied with the application, the particulars are entered into
the Register of Copyrights, and a Certificate of Registration is issued to the applicant,
completing the registration process.
Copyright in India is recognized worldwide under the “Berne Convention” and the applicable
laws of its member nations. Following the complete compliance process ensures that the
"certificate of copyright" serves as a safeguard for creative works, allowing creators to protect
and monetize their creations effectively.