Copyright Law In India

Aligarh Muslim University

Author: Rajat Kumar Singh

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 COPYRIGHT LAW IN INDIA

INTRODUCTION

Copyright is a right which subsists in a number of different kinds of works, such as literary,
dramatic, musical or artistic works, sound recording, and cinematograph films. The
Copyright Act, 1957 (herein referred to as “the Act”) governs the law relating to copyright in
India. The exclusive rights are granted to the owner of the copyright to do certain acts in
relation to the copyright work. For example, copying the work and use the copyright work in
any other way including issuing the work to the public, renting or lending copies of the work
to the public, performing, showing or playing the work in public, communicating the work to
the public. Further, the right extends to broadcasting of the work and the making available to
the public of the work by electronic transmission in such a way that member of the public
may access it from a place and at a time individually chosen by them and adaptation of the
work or doing any of the above in relation to the adaptation.

Section 14 of the Act defines ‘copyright’ means an exclusive right to do or authorise the
doing of any of the works specified. Copyright is the term to describe the bundle of rights
which are granted by statute, for limited periods of time and subject to certain exceptions, in
respect of original literary, dramatic, musical or artistic works, such as novels, plays, poems,
musical compositions, paintings, sculptures as well as of sound recordings, films broadcasts
and typographical arrangements of published editions. These are proprietary rights, giving the
owner the right to do or authorise other persons to do the acts restricted by the copyright law.
Copyright means the right to copy, specific, a property right in an original work of authorship
(including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and
architectural works; motion pictures and other audio visual works; and sound recordings)
fixed in any tangible medium of expression giving the holder the exclusive right to reproduce
adapt, distribute, perform and display the work. “Copyright is a monopoly of limited
duration, created and wholly regulated by the legislature and an author has therefore no other
title to his published works than that given by statute.” The term means that the right to make
copies of a given work- at first it meant simply written work - and to stop others from making
copies without one’s permission.

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Copyright is defined as the exclusive right to make copies, licence and exploit a literary
musical or artistic work, whether printed, audio, video, etc. works generated, such right by
law on or after the statute comes into force and are protected for a period of time after his or
her death. Copying means an imitation, reproduction or transcript of an original; written
matter intended to be reproduced in printed form; to make copy or copies. Copyright consists
of making available multiple rights on the same work normally referred as ‘bundle of rights.’
In a literary work for e.g. the author can reproduce a hardback or paperback edition, the work
may be converted into dramatic and cinematographic versions and it may be used for
adaptation, abridgement and translation. A work may also be converted into a play or a
musical work which can be performed in public. In India the law relating to copyright is
contained in the Copyright Act, 1957, the Copyright Rules, 1958 and the International
Copyright order, 1999.This act has been amended on several occasions and finally in 1999.

OWNERSHIP

The original holder of the copyright may be the employer of the author rather than the author
himself if the work is a "work for hire". For example, in English law the Copyright, Designs
and Patents Act 1988 provides that if a copyrighted work is made by an employee in the
course of that employment, the copyright is automatically owned by the employer which
would be a "Work for Hire". Typically, the first owner of a copyright is the person who
created the work i.e. the author. But when more than one person creates the work, then a case
of joint authorship can be made provided some criteria are met.

ELIGIBLE WORKS

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".
Specifics vary by jurisdiction, but these can include poems, theses, fictional characters plays
and other literary works, motion pictures, choreography, musical compositions, sound
recordings, paintings, drawings, sculptures, photographs, computer software, radio and
television broadcasts, and industrial designs. Graphic designs and industrial designs may
have separate or overlapping laws applied to them in some jurisdictions. Copyright does not
cover ideas and information themselves, only the form or manner in which they are
expressed. For example, the copyright to a Mickey Mouse cartoon restricts others from
making copies of the cartoon or creating derivative works based on Disney's particular

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anthropomorphic mouse, but does not prohibit the creation of other works about
anthropomorphic mice in general, so long as they are different enough to not be judged
copies of Disney's. Note additionally that Mickey Mouse is not copyrighted because
characters cannot be copyrighted; rather, Steamboat Willie is copyrighted and Mickey
Mouse, as a character in that copyrighted work, is afforded protection.

ORIGINALITY

Typically, a work must meet minimal standards of originality in order to qualify for
copyright, and the copyright expires after a set period of time (some jurisdictions may allow
this to be extended). Different countries impose different tests, although generally the
requirements are low; in the United Kingdom there has to be some "skill, labour, and
judgment" that has gone into it; Express Newspaper Plc v News (UK) Plc. In Australia and the
United Kingdom it has been held that a single word is insufficient to comprise a copyright
work. However, single words or a short string of words can sometimes be registered as a
trademark instead. Copyright law recognizes the right of an author based on whether the
work actually is an original creation, rather than based on whether it is unique; two authors
may own copyright on two substantially identical works, if it is determined that the
duplication was coincidental, and neither was copied from the other.

COPYRIGHT INFRINGEMENT

For a work to be considered to infringe upon copyright, its use must have occurred in a nation
that has domestic copyright laws or adheres to a bilateral treaty or established international
convention such as the Berne Convention or WIPO Copyright Treaty. Improper use of
materials outside of legislation is deemed "unauthorized edition", not copyright infringement.
Copyright infringement most often occurs to software, film and music. However,
infringement upon books and other text works remains common, especially for educational
reasons. Statistics regarding the effects of copyright infringement are difficult to determine.
Studies have attempted to determine whether there is a monetary loss for industries affected
by copyright infringement by predicting what portion of pirated works would have been
formally purchased if they had not been freely available. Other reports indicate that copyright
infringement does not have an adverse effect on the entertainment industry, and can have a
positive effect. In particular, a 2014 university study concluded that free music content,

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accessed on YouTube, does not necessarily hurt sales, instead has the potential to increase
sales.

RIGHTS OF COPYRIGHT HOLDER

Several exclusive rights typically attach to the holder of a copyright-

1) to produce copies or reproductions of the work and to sell those copies (including,
typically, electronic copies)

2) to import or export the work

3) to create derivative works (works that adapt the original work)

4) to perform or display the work publicly

5) to sell or cede these rights to others

6) to transmit or display by radio or video.

The phrase "exclusive right" means that only the copyright holder is free to exercise those
rights, and others are prohibited from using the work without the holder's permission.
Copyright is sometimes called a "negative right", as it serves to prohibit certain people (e.g.,
readers, viewers, or listeners, and primarily publishers and would be publishers) from doing
something they would otherwise be able to do, rather than permitting people (e.g., authors) to
do something they would otherwise be unable to do. In this way it is similar to the
unregistered design right in English law and European law. The rights of the copyright holder
also permit him/her to not use or exploit their copyright, for some or all of the term. There is,
however, a critique which rejects this assertion as being based on a philosophical
interpretation of copyright law that is not universally shared. There is also debate on whether
copyright should be considered a property right or a moral right.

If a pictorial, graphic or sculptural work is a useful article, it is copyrighted only if its

Exceptions

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In many jurisdictions, copyright law makes exceptions to these restrictions when the work is
copied for the purpose of commentary or other related uses. It should be noted that US
copyright does not cover names, title, short phrases or Listings (such as ingredients, recipes,
labels, or formulas). However, there are protections available for those areas copyright does
not cover – such as trademarks and patents.

There are some exceptions to what copyright will protect. Copyright will not protect:

 Names of products

 Names of businesses, organizations, or groups

 Pseudonyms of individuals

 Titles of works

 Catchwords, catchphrases, mottoes, slogans, or short advertising expressions

 Listings of ingredients in recipes, labels, and formulas, though the directions can be
copyrighted

DOCTRINE OF FAIR DEALING

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to
the author of a creative work. It permits reproduction or use of copyrighted work in a manner,
which, but for the exception carved out would have amounted to infringement of copyright. It
has thus been kept out of the mischief of copyright law; SK Dutt V. Law Book Co. & Ors. The
defense of “fair dealing” initially originated and emanated as a doctrine of equity which
allows the use of certain copyrightable works, which would otherwise have been prohibited
and would have amounted to infringement of copyright. The main idea behind this doctrine is
to prevent the stagnation of the growth of creativity for whose progress the law has been
designed. This doctrine is one of the most important aspects of Copyright Law which draws a
line between a legitimate, bonafide fair use of a work from a malafide blatant copy of the
work. This is the reason why this doctrine was explicitly enshrined in Article 13 of the TRIPS
(Trade Related Aspects of Intellectual Property Rights) which runs as follows- "Members
shall confine limitations or exceptions to exclusive rights to certain special cases which do
not conflict with a normal exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder". As we all know, all the member countries of WTO
are obliged to comply with the Berne Convention on Copyright as well as the articles of

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TRIPS. Consequently, this doctrine has been given place in almost all the Territorial
Copyright legislations of the member countries. However, there still remains a difference if
the individual laws of fair dealing enacted in different countries are compared. While some of
the legislations are keeping a rigid approach, the others have kept their doors open to embrace
any new act which can be treated as fair dealing. The Indian and UK copyright laws
regarding fair dealing are often characterized as very limited and restrictive as they work in
accordance with an exhaustive list of actions which come under the scope of fair dealing.
Whereas the US laws of "fair use" provide a wide and open ambit for the fair users of a
copyright work. While on one hand the Indian and UK laws of fair dealing work strictly
within the framework of the enlisted actions which constitute fair dealing, the American laws
of fair use is open for interpretation and works with the help of only certain guideline factors
which help in determining the extent of “fairness” involved in the work.

The laws relating to fair dealing have been incorporated in Section 52 of The Copyrights Act,
1957. As the Indian Copyright Act does not defines the term “fair dealing”, the courts have
on various occasions referred to the authority English case Hubbard v Vosper on the subject
matter. The words of Lord Denning in this case lay down a much descriptive outline of fair
dealing-

“It is impossible to define what is "fair dealing". It must be a question of degree. You must
first consider the number and extent of the quotations and extracts, then you must consider
the use made of them. Next, you must consider the proportions ,other considerations may
come into mind also. But, after all is said and done, it is a matter of impression.”

The Indian laws related to “fair dealing” is always considered rigid and conventional as it
provides an exhaustive list and any use falling out of the statutory list is considered as an act
of infringement. Unlike this, the US doctrine of "fair use" keeps its doors open for any new
exception which constitutes fair and bonafide use of a copyright work. As the Indian courts
have explored and unveiled the various facets of fair dealing, they have said that there cannot
be a definite or exhaustible list of uses which can come within the purview of fair dealing but
it has to be decided depending upon the facts and circumstances of each case. Apparently,
such conclusions have been drawn more from the US and UK approaches and less from the
Indian statutory laws. But apparently, the Indian courts have also started paying attention to

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the same. The best example of this development is the case of (India Tv) Independent News
Services Pvt. Ltd vs Yashraj Films Private Limited, where one of the various grounds of
dispute was that the defendants "India TV" broadcasted a TV show wherein a documentary is
shown on the life of singers and they perform their own songs. While the singer sings, clips
of scenes from the movies are shown in the background. The plaintiffs claimed that such acts
of the defendants amounted to infringement of their copyright. However, the defendants
claimed that such use of the plaintiff's copyrighted material constituted fair dealing within the
meanings of section 52 of The Copyrights Act. The Delhi High Court in its judgment
restrained the defendants from distributing, broadcasting or otherwise publishing or in any
other way exploiting any cinematograph film, sound recordings or part thereof that is owned
by the plaintiff. However, if we look at the present case from a slightly different perspective,
there are certain questions which still remain unanswered. In my opinion the argument of the
counsel for defendant stating that "the singer who has recorded a song which has gone on to
become a hit has a sense of ownership over such a song, and that it would be very
unreasonable-to the point of being unfair and cruel to the said singer, to say that he/she
cannot sing the said song in a TV or other interactive program in front of an audience, only
because the copyright in the underlying literary and musical works resides in some other
person(s)" also withholds a valid point. But since such use does not come within the
exhaustive list provided under section 52 of the act, they were deprived of any remedy in the
fair dealing laws. This judgment indicates that the courts also have started feeling that there is
still much left to look upon, to consider to keep the legislations hand in hand with the
technological and scientific developments going across the world.

CONCLUSION

Undoubtedly, “fair dealing” is a necessary doctrine, not only in the Copyright laws but also in
strengthening the protection given to the citizens under Article 19 of the Constitution of
India. But the Indian law related to fair dealing is very limited and confined as compared to
the US fair dealing laws which is more elaborate and keeps a flexible approach. Perhaps, the
Indian legislators wanted more certainty in the provisions that is the reason behind the
conservative approach which reflects in Section 52 of The Indian Copyright Act. Though the
courts have adapted the US approach from time to time in its decisions, the author here likes
to submit that the overall defense of fair dealing available in our country is yet to be
examined, enlarged and defined. Civic Chandran v. Ammini Amma is a landmark case

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in Indian copyright law decided by Kerala High Court in which the judgment held that even
substantial copying of copyrighted work is permissible under the fair dealing exception, if the
copying is in public interest.

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