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E-NOTES

Class : B.A.LL.B VIII Semester

Paper Code : LLB-402

Subject : Intellectual Property Rights

Faculty Name : Ms. Kriti Sharma

UNIT-1

THE COPYRIGHTS (INDIAN COPYRIGHT ACT, 1957)

Introduction to Copyright Law

Copyright is the set of exclusive rights granted to the author or creator of an original work,
including the right to copy, distribute and adapt the work. Copyright lasts for a certain time
period after which the work is said to enter the public domain. Copyright gives protection for the
expression of an idea and not for the idea itself. For example, many authors write textbooks on
physics covering various aspects like mechanics, heat, optics etc. Even though these topics are
covered in several books by different authors, each author will have a copyright on the book
written by him / her, provided the book is not a copy of some other book published earlier.
Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity. Creativity being the keystone of progress, no
civilized society can afford to ignore the basic requirement of encouraging the same. Economic
and social development of a society is dependent on creativity. The protection provided by
copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and
producers of sound recordings, cinematograph films and computer software, creates an
atmosphere conducive to creativity, which induces them to create more and motivates others to
create.

Copyright Law in India

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The Copyright Act of 1957, The Copyright Rules, 1958 and the International Copyright Order,
1999 governs the copyright protection in India. It came into effect from January 1958. The Act
has been amended in 1983, 1984, 1992, 1994 and 1999. Before the Act of 1957, copyright
protection was governed by the Copyright Act of 1914 which was the extension of British
Copyright Act, 1911.

The Copyright Act, 1957 consists of 79 sections under 15 chapters while the Copyright Rules,
1958 consists of 28 rules under 9 chapters and 2 schedules.

Meaning of Copyright

According to Section 14 of the Act, “copyright” means the exclusive right subject to the
provisions of this Act, to do or authorize the doing of any of the following acts in respect of a
work or any substantial part thereof, namely: -

In The Case of a oLiterary, Dramatic, r Musical Work, Not Being a Computer Programme,
-

 to reproduce the work in any material form including the storing of it in any medium by
electronic means.

 to issue copies of the work to the public not being copies already in circulation.

 to perform the work in public or communicate it to the public.

 to make any cinematograph film or sound recording in respect of the work.

 to make any translation of the work.

 to make any adaptation of the work.

 to do, in relation to a translation or an adaptation of the work, any of the acts specified in
relation to the work in sub-clauses (i) to (vi);

In the case of a Computer Programme

 to do any of the acts specified in clause (a).

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 to sell or give on commercial rental or offer for sale or for commercial rental any copy of
the computer programme:

Provided that such commercial rental does not apply in respect of computer programmes
where the programme itself is not the essential object of the rental.

In the Case of an Artistic Work, -

 to reproduce the work in any material form including depiction in three dimensions of a
two-dimensional work or in two dimensions of a three-dimensional work;

 to communicate the work to the public.

 to issue copies of the work to the public not being copies already in circulation.

 to include the work in any cinematograph film;

 to make any adaptation of the work;

 to do in relation to an adaptation of the work any of the acts specified in relation to the
work in sub-clauses (i) to (iv);

In the Case of Cinematograph Film, -

 to make a copy of the film, including a photograph of any image forming part thereof;

 to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether
such copy has been sold or given on hire on earlier occasions;

 to communicate the film to the public;

In the Case of Sound Recording, -

 to make any other sound recording embodying it;

 to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless
of whether such copy has been sold or given on hire on earlier occasions.

 to communicate the sound recording to the public.

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

Brief Introduction to related International Treaties and Conventions

Creations of the mind can be used at any place at any time and are clearly not confined to a
country’s boundaries. Yet, there is no such thing as universal copyright, but a bunch of single
national copyright laws, each of which has no effect outside its respective territory. This is the
so-called the rule of territoriality.

In principle, every country is free to design its laws on copyright and related rights according to
its own needs, policy objectives, and legal traditions. Particularly, it is in the discretion of
domestic lawmakers whether and to what extent they want to protect works of foreign nationals.
In the early days, culture-importing countries tended to grant little protection to foreign works in
order to secure cheap copies for their interior markets.

However, with the growing importance of international trade relations, from the middle of the
19th century onwards states increasingly started to conclude bilateral treaties for mutual
protection of authors rights. Today, a number of multilateral agreements provide a certain degree
of harmonization for the protection of copyright and related rights in a wide range of countries.

International Protection of Copyright and Related Rights

Bundle of national laws rather than universal copyright

Harmonisation of national laws through international treaties

Today, system of widely accepted multilateral conventions The Most Important International
Conventions

The Berne Convention for the Protection of Literary and Artistic Works of 1886 (last revised in
1971)

The Universal Copyright Convention of 1952 (last revised in 1971)

The Rome Convention for the Protection of Performers, Producers of Phonograms, and
broadcasting Organizations of 1961

The TRIPs Agreement of 1994

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The WIPO Copyright Treaty of 1996

The WIPO Performances and Phonograms Treaty of 1996

The Berne Convention for the Protection of Literary and Artistic Works of 1886 (last
revised in 1971)

The Berne Convention deals with the protection of works and the rights of their authors. It is
based on three basic principles and contains a series of provisions determining the minimum
protection to be granted, as well as special provisions available to developing countries that want
to make use of them.

The three basic principles are the following:

Works originating in one of the Contracting States (that is, works the author of which is a
national of such a State or works first published in such a State) must be given the same
protection in each of the other Contracting States as the latter grants to the works of its own
nationals (principle of "national treatment").

Protection must not be conditional upon compliance with any formality (principle of "automatic"
protection).

Protection is independent of the existence of protection in the country of origin of the work
(principle of "independence" of protection). If, however, a Contracting State provides for a
longer term of protection than the minimum prescribed by the Convention and the work ceases to
be protected in the country of origin, protection may be denied once protection in the country-of-
origin ceases.

The minimum standards of protection relate to the works and rights to be protected, and to the
duration of protection:

As to works, protection must include "every production in the literary, scientific and artistic
domain, whatever the mode or form of its expression" (Article 2(1) of the Convention).

Subject to certain allowed reservations, limitations or exceptions, the following are among the
rights that must be recognized as exclusive rights of authorization:

 the right to translate,

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 the right to make adaptations and arrangements of the work,

 the right to perform in public dramatic, dramatic-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 (with the possibility that a Contracting State may provide for a
mere right to equitable remuneration instead of a right of authorization),

 the right to make reproductions in any manner or form (with the possibility that a
Contracting State may permit, in certain special cases, reproduction without
authorization, provided that the reproduction does not conflict with the normal
exploitation of the work and does not unreasonably prejudice the legitimate interests of
the author; and the possibility that a Contracting State may provide, in the case of sound
recordings of musical works, for a right to equitable remuneration),

 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.

The Convention also provides for "moral rights", that is, the right to claim authorship of the work
and the right to object to any mutilation, deformation, or other modification of, or other
derogatory action in relation to, the work that would be prejudicial to the author's honor or
reputation.

As to the duration of protection, the general rule is that protection must be granted until the
expiration of the 50th year after the author's death. There are, however, exceptions to this general
rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years
after the work has been lawfully made available to the public, except if the pseudonym leaves no
doubt as to the author's identity or if the author discloses his or her identity during that period; in
the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the
minimum term of protection is 50 years after the making available of the work to the public
("release") or – failing such an event – from the creation of the work. In the case of works of
applied art and photographic works, the minimum term is 25 years from the creation of the work.

The Berne Convention allows certain limitations and exceptions on economic rights, that is,
cases in which protected works may be used without the authorization of the owner of the
copyright, and without payment of compensation. These limitations are commonly referred to as

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"free uses" of protected works and are set forth in Articles 9(2) (reproduction in certain special
cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10bis
(reproduction of newspaper or similar articles and use of works for the purpose of reporting
current events) and 11bis (3) (ephemeral recordings for broadcasting purposes).

The Appendix to the Paris Act of the Convention also permits developing countries to implement
non-voluntary licenses for translation and reproduction of works in certain cases, in connection
with educational activities. In these cases, the described use is allowed without the authorization
of the right holder, subject to the payment of remuneration to be fixed by the law.

The Berne Union has an Assembly and an Executive Committee. Every country that is a member
of the Union and has adhered to at least the administrative and final provisions of the Stockholm
Act is a member of the Assembly. The members of the Executive Committee are elected from
among the members of the Union, except for Switzerland, which is a member ex officio.

The establishment of the biennial program and budget of the WIPO Secretariat – as far as the
Berne Union is concerned – is the task of its Assembly.

The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908,
completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967
and at Paris in 1971, and was amended in 1979.

The Convention is open to all States. Instruments of ratification or accession must be deposited
with the Director General of WIPO.

Universal Copyright Convention

Universal Copyright Convention, (1952), convention adopted at Geneva by an international

conference convened under the auspices of UNESCO, which for several years had been
consulting with copyright experts from various countries. The convention came into force in
1955.

Its main features are the following:

 no signatory nation should accord its domestic authors more favorable copyright
treatment than the authors of other signatory nations, though no minimum protection for
either domestic or foreign authors is stipulated;

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 a formal copyright notice must appear in all copies of a work and consist of the symbol
©, the name of the copyright owner, and the year of first publication; a signatory nation,
however, might require further formalities, provided such formalities do not favour
domestic over foreign works;

 the minimum term of copyright in member nations must be the life of the author
plus 25 years (except for photographic works and works of applied art, which have a 10-
year term);

 all adhering nations are required to grant an exclusive right of translation for a seven-year
period, subject to a compulsory license under certain circumstances for the balance of the
term of copyright.

The convention did not abrogate any other multilateral or bilateral conventions or arrangements
between two or more member states. Where there are any differences, the provisions of the
Universal Copyright Convention are to prevail except as regards the Berne Convention (q.v.),
which takes priority over the UCC, and conventions or arrangements between two or more
American republics.

Both the Universal Copyright Convention and the Berne Convention were revised at a Paris
conference in 1971 to take into consideration the special needs of developing countries,
especially with regard to translations, reproductions, public performances, and broadcasting. The
liberalized regulations were to apply only to teaching, scholarship, and research.

The Rome Convention for the Protection of Performers, Producers of Phonograms, and
broadcasting Organizations of 1961

The Rome Convention secures protection in performances for performers, in phonograms for
producers of phonograms and in broadcasts for broadcasting organizations.

Performers (actors, singers, musicians, dancers, and those who perform literary or artistic works)
are protected against certain acts to which they have not consented, such as the broadcasting and
communication to the public of a live performance; the fixation of the live performance; the
reproduction of the fixation if the original fixation was made without the performer's consent or
if the reproduction was made for purposes different from those for which consent was given.

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Producers of phonograms have the right to authorize or prohibit the direct or indirect
reproduction of their phonograms. In the Rome Convention, “phonograms” means any
exclusively aural fixation of sounds of a performance or of other sounds. Where a phonogram
published for commercial purposes gives rise to secondary uses (such as broadcasting or
communication to the public in any form), a single equitable remuneration must be paid by the
user to the performers, to the producers of the phonograms, or to both. Contracting States are
free, however, not to apply this rule or to limit its application.

Broadcasting organizations have the right to authorize or prohibit certain acts, namely the
rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such
fixations; the communication to the public of their television broadcasts if such communication
is made in places accessible to the public against payment of an entrance fee.

The Rome Convention allows for limitations and exceptions to the above- mentioned rights in
national laws as regards private use, use of short excerpts in connection with reporting current
events, ephemeral fixation by a broadcasting organization by means of its own facilities and for
its own broadcasts, use solely for the purpose of teaching or scientific research and in any other
cases where national law provides exceptions to copyright in literary and artistic works.
Furthermore, once a performer has consented to the incorporation of a performance in a visual or
audiovisual fixation, the provisions on performers' rights have no further application.

As to duration, protection must last at least until the end of a 20-year period computed from the
end of the year in which (a) the fixation was made, for phonograms and for performances
incorporated therein; (b) the performance took place, for performances not incorporated in
phonograms; (c) the broadcast took place. However, national laws increasingly provide for a 50-
year term of protection, at least for phonograms and performances.

WIPO is responsible, jointly with the International Labour Organization (ILO) and the United
Nations Educational, Scientific and Cultural Organization (UNESCO), for the administration of
the Rome Convention. These three organizations constitute the Secretariat of the
Intergovernmental Committee set up under the Convention consisting of the representatives of
12 Contracting States.

The Convention does not provide for the institution of a Union or budget. It establishes an
Intergovernmental Committee composed of Contracting States that considers questions
concerning the Convention.

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This Convention is open to States party to the Berne Convention for the Protection of Literary
and Artistic Works (1886) or to the Universal Copyright Convention. Instruments of ratification
or accession must be deposited with the Secretary- General of the United Nations. States may
make reservations with regard to the application of certain provisions.

The TRIPs Agreement of 1994

The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights
of performers, producers of sound recordings and broadcasting organizations); trademarks
including service marks; geographical indications including appellations of origin; industrial
designs; patents including the protection of new varieties of plants; the layout-designs of
integrated circuits; and undisclosed information including trade secrets and test data.

The three main features of the Agreement are:

Standards. In respect of each of the main areas of intellectual property covered by the TRIPS
Agreement, the Agreement sets out the minimum standards of protection to be provided by each
Member. Each of the main elements of protection is defined, namely the subject-matter to be
protected, the rights to be conferred and permissible exceptions to those rights, and the minimum
duration of protection. The Agreement sets these standards by requiring, first, that the
substantive obligations of the main conventions of the WIPO, the Paris Convention for the
Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection
of Literary and Artistic Works (Berne Convention) in their most recent versions, must be
complied with. With the exception of the provisions of the Berne Convention on moral rights, all
the main substantive provisions of these conventions are incorporated by reference and thus
become obligations under the TRIPS Agreement between TRIPS Member countries. The
relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate,
respectively, to the Paris Convention and to the Berne Convention. Secondly, the TRIPS
Agreement adds a substantial number of additional obligations on matters where the pre-existing
conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus
sometimes referred to as a Berne and Paris-plus agreement.

Enforcement. The second main set of provisions deals with domestic procedures and remedies
for the enforcement of intellectual property rights. The Agreement lays down certain general
principles applicable to all IPR enforcement procedures. In addition, it contains provisions on
civil and administrative procedures and remedies, provisional measures, special requirements

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related to border measures and criminal procedures, which specify, in a certain amount of detail,
the procedures and remedies that must be available so that right holders can effectively enforce
their rights.

Dispute settlement. The Agreement makes disputes between WTO Members about the respect of
the TRIPS obligations subject to the WTO's dispute settlement procedures.

In addition, the Agreement provides for certain basic principles, such as national and most-
favoured-nation treatment, and some general rules to ensure that procedural difficulties in
acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the
Agreement. The obligations under the Agreement will apply equally to all Member countries, but
developing countries will have a longer period to phase them in. Special transition arrangements
operate in the situation where a developing country does not presently provide product patent
protection in the area of pharmaceuticals.

The TRIPS Agreement is a minimum standards agreement, which allows Members to provide
more extensive protection of intellectual property if they so wish. Members are left free to
determine the appropriate method of implementing the provisions of the Agreement within their
own legal system and practice.

The WIPO Copyright Treaty of 1996

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. Any
Contracting Party (even if it is not bound by the Berne Convention) must comply with the
substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of
Literary and Artistic Works (1886). Furthermore, the WCT mentions two subject matters to be
protected by copyright: computer programs, whatever the mode or form of their expression; and
compilations of data or other material ("databases"), in any form, which, by reason of the
selection or arrangement of their contents, constitute intellectual creations. (Where a database
does not constitute such a creation, it is outside the scope of this Treaty.)

As to the rights granted to authors, apart from the rights recognized by the Berne Convention, the
Treaty also grants:

 the right of distribution;

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 the right of rental; and

 a broader right of communication to the public.

 The right of distribution is the right to authorize the making available to the public of the
original and copies of a work through sale or other transfer of ownership.

 The right of rental is the right to authorize commercial rental to the public of the original
and copies of three kinds of works:

 computer programs (except where the computer program itself the essential object of the
rental is not);

 cinematographic works (but only in cases where commercial rental has led to widespread
copying of such works, materially impairing the exclusive right of reproduction); and

 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).

The right of communication to the public is the right to authorize any communication to the
public, by wire or wireless means, including "the making available to the public of works in a
way that the members of the public may access the work from a place and at a time individually
chosen by them". The quoted expression covers, in particular, on-demand, interactive
communication through the Internet.

As to limitations and exceptions, Article 10 of the WCT incorporates the so-called "three step"
test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne
Convention, extending its application to all rights. The Agreed Statement accompanying the
WCT provides that such limitations and exceptions, as established in national law in compliance
with the Berne Convention, may be extended to the digital environment. Contracting States may
devise new exceptions and limitations appropriate to the digital environment. The extension of
existing or the creation of new limitations and exceptions is allowed if the conditions of the
"three-step" test are met.

As to duration, the term of protection must be at least 50 years for any kind of work.

The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any
formality.

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The Treaty obliges Contracting Parties to provide legal remedies against the circumvention of
technological measures (e.g., encryption) used by authors in connection with the exercise of their
rights, and against the removal or altering of information, such as certain data that identify works
or their authors, necessary for the management (e.g., licensing, collecting and distribution of
royalties) of their rights ("rights management information").

The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the
measures necessary to ensure the application of the Treaty. In particular, each Contracting Party
must ensure that enforcement procedures are available under its law so as to permit effective
action against any act of infringement of rights covered by the Treaty. Such action must include
expeditious remedies to prevent infringement as well as remedies that constitute a deterrent to
further infringement.

The Treaty establishes an Assembly of the Contracting Parties whose main task is to address
matters concerning the maintenance and development of the Treaty. It entrusts to the Secretariat
of WIPO the administrative tasks concerning the Treaty.

The Treaty was concluded in 1996 and entered into force in 2002.

The Treaty is open to States members of WIPO and to the European Community. The Assembly
constituted by the Treaty may decide to admit other intergovernmental organizations to become
party to the Treaty. Instruments of ratification or accession must be deposited with the Director
General of WIPO.

The WIPO Performances and Phonograms Treaty of 1996

The WIPO Performances and Phonograms Treaty (WPPT) deals with the rights of two kinds of
beneficiaries, particularly in the digital environment: (i) performers (actors, singers, musicians,
etc.); and (ii) producers of phonograms (persons or legal entities that take the initiative and have
the responsibility for the fixation of sounds). These rights are addressed in the same instrument,
because most of the rights granted by the Treaty to performers are rights connected to their fixed,
purely aural performances (which are the subject matter of phonograms).

As far as performers are concerned, the Treaty grants performers economic rights in their
performances fixed in phonograms (not in audiovisual fixations, such as motion pictures):

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 The right of reproduction is the right to authorize direct or indirect reproduction of the
phonogram in any manner or form.

 The right of distribution is the right to authorize the making available to the public of the
original and copies of the phonogram through sale or other transfer of ownership.

 The right of rental is the right to authorize the commercial rental to the public of the
original and copies of the phonogram, as determined in the national law of the
Contracting Parties (except for countries that, since April 15, 1994, have had a system in
force for equitable remuneration of such rental).

 The right of making available is the right to authorize the making available to the public,
by wire or wireless means, of any performance fixed in a phonogram, in such a way that
members of the public may access the fixed performance from a place and at a time
individually chosen by them. This right cover, in particular, on-demand, interactive
making available through the Internet.

As to unfixed (live) performances, the Treaty grants performersThe Treaty also grants
performers moral rights, that is, the right to claim to be identified as the performer and the right
to object to any distortion, mutilation or other modification that would be prejudicial to the
performer's reputation.

As far as producers of phonograms are concerned, the Treaty grants them economic rights in
their phonograms:

The right of reproduction is the right to authorize direct or indirect reproduction of the
phonogram in any manner or form.

The right of distribution is the right to authorize the making available to the public of the original
and copies of the phonogram through sale or other transfer of ownership.

The right of rental is the right to authorize the commercial rental to the public of the original and
copies of the phonogram, as determined in the national law of the Contracting Parties (except for
countries that, since April 15, 1994, have a system in force for equitable remuneration of such
rental).

The right of making available is the right to authorize making available to the public, by wire or
wireless means, a phonogram in such a way that members of the public may access the

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phonogram from a place and at a time individually chosen by them. This right cover, in
particular, on-demand, interactive making available through the Internet.

The Treaty provides that performers and producers of phonograms have the right to a single
equitable remuneration for the direct or indirect use of phonograms, published for commercial
purposes, broadcasting or communication to the public. However, any Contracting Party may
restrict or – provided that it makes a reservation to the Treaty – deny this right. In the case and to
the extent of a reservation by a Contracting Party, the other Contracting Parties are permitted to
deny, vis-à-vis the reserving Contracting Party, national treatment ("reciprocity").

As to limitations and exceptions, Article 16 of the WPPT incorporates the so-called "three step"
test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne
Convention, extending its application to all rights. The accompanying Agreed Statement
provides that such limitations and exceptions, as established in national law in compliance with
the Berne Convention, may be extended to the digital environment. Contracting States may
devise new exceptions and limitations appropriate to the digital environment. The extension of
existing or the creation of new limitations and exceptions is allowed if the conditions of the
"three-step" test are met.

The term of protection must be at least 50 years.

The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any
formality.

The Treaty obliges Contracting Parties to provide for legal remedies against the circumvention of
technological measures (e.g., encryption) used by performers or phonogram producers in
connection with the exercise of their rights, and against the removal or altering of information –
such as the indication of certain data that identify the performer, performance, producer of the
phonogram and the phonogram itself – necessary for the management (e.g., licensing, collecting
and distribution of royalties) of the said rights ("rights management information").

The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the
measures necessary to ensure the application of the Treaty. In particular, each Contracting Party
must ensure that enforcement procedures are available under its law so as to permit effective
action against any act of infringement of rights covered by the Treaty. Such action must include
expeditious remedies to prevent infringement as well as remedies that constitute a deterrent to
further infringement.

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The Treaty establishes an Assembly of the Contracting Parties whose main task is to address
matters concerning the maintenance and development of the Treaty. It entrusts to the Secretariat
of WIPO the administrative tasks concerning the Treaty.

The Treaty was concluded in 1996 and entered into force in 2002.The Treaty is open to States
members of WIPO and to the European Community. The Assembly constituted by the Treaty
may decide to admit other inter- governmental organizations to become party to the Treaty.
Instruments of ratification or accession must be deposited with the Director General of WIPO.

Subject Matter of Copyright

Section 13 provides that subject to the provisions of this section and the other provisions of this
Act, copyright shall subsist throughout India in the following classes of works, that is to say.

Original literary, dramatic, musical, and artistic works Cinematograph films; and Sound
recordings. Copyright shall not subsist in any work specified in sub- section

Other than a work to which the provisions of section 40 or section 41 apply, unless, -

In the case of a published work, the work is first published in India, or where the work is first
published outside India, the author is at the date of such publication, or in a case where the
author was dead at that date, was at the time of his death, a citizen of India;

In the case of an unpublished work other than a work of architecture, the author is at the date of
the making of the work a citizen of India or domiciled in India; and

In the case of a work of architecture, the work is located in India Explanation:

In the case of a work of joint authorship, the conditions conferring copyright specified in this
sub-section shall be satisfied by all the authors of the work.

Copyright shall not subsist-

In any cinematograph film if a substantial part of the film is an infringement of the copyright in
any other work;

In any sound recording made in respect of a literary, dramatic or musical work, if in making the
sound recording, copyright in such work has been infringed.

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The copyright in a cinematograph film or a sound recording shall not affect the separate
copyright in any work in respect of which or a subtending.’ part of which, the film, or as the case
may be, the sound recording is made.

In the case of a work of architecture, copyright shall subsist only in the artistic character and
design and shall not extend to processes or methods of construction.

Economic and Moral Rights

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection
in the following two forms:

Economic Right of Author

Moral Rights of the author.

Economic Rights:

The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs
films and sound recordings. The authors of copyright in the aforesaid works enjoy economic
rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic, and musical, other
than computer program, to reproduce the work in any material form including the storing of it in
any medium by electronic means, to issue copies of the work to the public, to perform the work
in public or communicating it to the public, to make any cinematograph film or sound recording
in respect of the work, and to make any translation or adaptation of the work. In the case of
computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give
on hire, or offer for sale or hire any copy of the computer program regardless of whether such
copy has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights
available to an author include the right to reproduce the work in any material form, including
depiction in three dimensions of a two-dimensional work or in two dimensions of a three
dimensional work, to communicate or issues copies of the work to the public, to include the work
in any cinematograph work, and to make any adaptation of the work. In the case of
cinematograph film, the author enjoys the right to make a copy of the film including a
photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any
copy of the film, and to communicate the film to the public. These rights are similarly available
to the author of sound recording. In addition to the aforesaid rights, the author of a painting,
sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first

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owner of the copyright, shall be entitled to have a right to share in the resale price of such
original copy provided that the resale price exceeds rupees ten thousand.

Moral Rights:

Section 57 of the Act defines the two basic “moral rights” of an author. These are: right of
paternity and right of integrity.

The right of paternity refers to a right of an author to claim authorship of work and a right to
prevent all others from claiming authorship of his work. Right of integrity empowers the author
to prevent distortion, mutilation or other alterations of his work, or any other action in relation to
said work, which would be prejudicial to his honour or reputation. The proviso to section 57(1)
provides that the author shall not have any right to restrain or claim damages in respect of any
adaptation of a computer program to which section 52 (1)(aa) applies (i.e., reverse engineering of
the same). It must be noted that failure to display a work or to display it to the satisfaction of the
author shall not be deemed to be an infringement of the rights conferred by this section. The
legal representatives of the author may exercise the rights conferred upon an author of a work by
section 57(1), other than the right to claim authorship of the work.

Authorship and Ownership

The Copyright Act of 1957 uses two separate terms – author and owner of Copyright. This has
led to rows over the concept of authorship and ownership rights.

The term ‘author’ is defined under Section 2 (d) of the Act. It clearly states that in relation of
different types of works that fall under the ambit of Copyright who really is the author under that
category, and these are as under:

 in relation to a literary or dramatic work, the person who creates the work (author of the
work);

 in relation to a musical work, the composer;

 in relation to an artistic work other than a photograph, the artist;

 in relation to a photograph, the person who takes the photograph (the photographer);

 in relation to a cinematograph film or sound recording, the producer; and

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 in relation to computer-generated work, which is literary, dramatic, musical or artistic in

nature, the person who causes the work to be created.

Further, Section 17 of the Act clearly mentions that the author is the first owner of copyright in a
work.

However, it also highlights those circumstances where an author is NOT the owner, unless there
is a contract to the contrary. These are:

 a literary, dramatic, or artistic created, during the course of employment of the author, for
the proprietor of a newspaper, magazine or similar periodical under a contract of service
or apprenticeship, the proprietor is the first owner of the copyright in that work, for the
publication of that work or the reproduction of the same;

 in case a photograph is clicked, or a painting or portrait is drawn, or an engraving or a

cinematograph film is made, for valuable consideration at the instance of a person, that
person is the first owner of the copyright;

 any work created during the course of employment or apprenticeship, the employer is the
first owner of the copyright;

 in case of public address or speech, the person who has delivered that address or speech
or if he has delivered such address or speech on behalf of any other person, then that
other person is the first owner of the copyright;

 in case of a Government work, Government is the first owner of the copyright;

 in case of a work done or created for a public undertaking, that public undertaking is the
first owner of the copyright.

Assignment of Copyright

Sec.18 of the Copyright Act, 1957 deals with assignment of copyright. The owner of the
copyright in an existing work or the prospective owner of the copyright in a future work may
assign to any person the copyright either wholly or partially and either generally or subject to
limitations and either for the whole term of the copyright or any part thereof. The mode of
assignment should be in the following manner:

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Assignment should be given in writing and signed by the assignor or by his duly authorized
agent.

The assignment should identify the work and specify the rights assigned and the duration and
territorial extent of such assignment.

The assignment should also specify the amount of royalty payable, if any, to the author or his
legal heirs during the currency of the assignment and the assignment may be subject to revision,
extension or termination on terms mutually agreed upon by the parties.

Where the assignee does not exercise the rights assigned to him within a period of one year from
the date of assignment, the assignment in respect of such rights will be deemed to have lapsed
after the expiry of the said period unless otherwise specified in the assignment.

The period of assignment will be deemed to be 5 years from the date of assignment unless
specifically mentioned. If the territorial extent of assignment of the rights is not specified, it will
be presumed to extend within India.

If any dispute arises with respect to the assignment of any copyright the Copyright Board may,
on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers
necessary, pass such order as it may deem fit including an order for the recovery of any royalty
payable, provided that the Copyright Board may not pass any order to revoke the assignment
unless it is satisfied that the terms of assignment are harsh to the assignor, in case the assignor is
also the author, provided further that no order of revocation of assignment, be made within a
period of five years from the date of such assignment.

Term of Copyright

Section 22 to 29 of the Copyright Act, 1957 deals with the term of copyright. Copyright
generally lasts for a period of sixty years.

In the case of literary, dramatic, musical, or artistic works, the sixty-year period is counted from
the year following the death of the author.

In the case of cinematograph films, sound recordings, photographs, posthumous publications,

anonymous and pseudonymous publications, works of government and public undertakings and
works of international organisations, the 60-year period is counted from the date of publication.

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In case of Broadcast reproduction right - 25 years from the beginning of the calendar year next
following the year in which the broadcast is made.

In case of Performers right - 25 years from the beginning of the calendar year next following the
year in which the performance is made.

Licenses

Section 30 of the Copyright Act defines license as an authorization to do certain acts which
without such authorization would be an infringement.

The owner of a copyright may grant license to do any of the acts in respect of which he has an
exclusive right to do.

Licensing usually involves only some of the rights and not the whole. An author of a novel may
license the right to reproduce the work in hard book to one person and paper book to another, the
serialization rights and dramatization rights in any language to yet another.

License is different from assignment. In the case of a license the licensee gets the right to
exercise particular rights subject to the conditions of the license but does not become the owner
of that right whereas an assignee becomes the owner of the interest assigned.

Form and Contents of License-

There is no prescribed form for a license deed. But I t should be in writing signed by the owner
of the copyright or his duly authorized agent. A license can be granted not only in respect of an
existing work, but also in respect of a future work. But in the case of a future work the license
will take effect only when the work comes into existence. Where the licensee of a future work
dies before the work comes into existence then his legal representatives will be entitled to the
benefit of the license if there is no provision to the contrary in the license.

A License Should Contain the Following Particulars-

 Identification of the work

 Duration of license

 The rights of licensee

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 Territorial extent of license

 The quantum of royalty payable

 The terms regarding revision, extension, and termination

Period of License-

If the licensee does not exercise his right licensed to him within one year from the date of license
in respect of such rights it will be deemed to have lapsed after the expiry of one year. If the
period of license is not stated it will be deemed to be 5 years from the date of granting license.

Non-voluntary or Compulsory License

Many countries have provided in their copyright legislation for compulsory licenses particularly
in those fields of copyright where modern technology has created new uses for works giving new
rights which can only be exercised effectively by bulk licensing through a collecting society or
under a compulsory license system. These provisions have been found necessary because new
technology which has posed problems for the enforcement of copyright which could only be
solved in a practical way by compulsory license schemes.

International Conventions and Non-voluntary Licensing

The Berne Convention, Paris Acts (1971) and the UCC have made special provisions for non-
voluntary licenses for the benefit of developing countries.

Under these provisions such licenses are

 confined to the exercise of two rights - the translation right and the reproduction right;

 confined to countries recognized as developing countries;

 only permitted if all the prior conditions stipulated in the Annex and Protocol are
fulfilled;

 temporary in the sense that they are permissible under the conventions only as long as the
country concerned ranks as a developing country.

The Berne Convention contains compulsory license provisions relating to the broadcasting right
and recording right. Subject to the conditions that:

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 the moral rights of authors are safeguarded.

 equitable remuneration is provided for and the amount of which to be fixed either by
agreement or by ‘competent authority’ which is usually a Government agency or a
special tribunal; and

 the compulsory license must be applicable only in the country which has provided for it.

Compulsory License of an Indian Work [S. 31]

The Copyright Board is empowered to grant compulsory licenses under certain circumstances on
suitable terms and condition in respect of an ‘Indian work.’ The circumstances necessary for
grant of such compulsory licenses are the following:

 the work must have been published or performed in public,

 the author must have refused to republish or allow republication of the work or must have
refused to allow the performance of the work in public.

 that by reason of such refusal the work is withheld from public, or

 the author must have refused to allow communication to the public of such work by
broadcast, or in the case of a sound recording the work recorded in such record on
reasonable terms.

Procedure

On a complaint being made to the Copyright Board, the Board, after giving the owner of the
copyright an opportunity of being heard and after holding necessary enquiries, may direct the
Registrar of Copyright to grant to the complainant a license to republish the work, perform the
work in public or communicate the work to the public by broadcast, as the case may be, subject
to payment to the owner of the copyright reasonable compensation and subject to other terms and
conditions, if necessary. The Registrar will then grant the license on payment of such fee as may
be prescribed.

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Termination of License Granted under Sections 32(1 A) and 32A of Non-Indian Work [S.
32B]

Where the Copyright Board has granted a license to any person to produce and publish a
translation of a non-Indian work any language under S. 32(1A); if at any time after granting the
license the owner of the work or a person authorized by him has published a translation of the
work in the same language which is substantially the same in content at a price reasonably
related to the price charged in India for the translation of works of the same standard on the same
or similar subject the license granted will be terminated. The termination will not take effect until
after the expiry of three months from the date of service of a notice in the prescribed manner on
the person holding the license by the owner of the right of translation intimating the publication.
The license-holder will be permitted to sell or distribute copies of the translation produced before
the termination of the license takes effect until they are exhausted.

A license granted by the Copyright Board under S. 32A to produce and publish the reproduction
or translation of any work will be terminated if at any time after the granting of license the owner
of the right of reproduction sells or distributes copies of such work or its translation in the same
language and which is substantially the same in content at a price reasonably related to the price
normally charged in India for works of the same standard on similar subject. The termination
will not take effect until after the expiry of three months from the date of service of a notice on
the holder of the license by the owner of the right of reproduction or translation intimating the
sale and distribution of copies of the edition of the work. The license holder can, however,
continue to sell the copies already reproduced before the termination takes effect until such
copies are exhausted.

Infringement and Remedies

If a person without the consent or license of the owner of the copyright does or authorize the
doing of any of the following acts, he will be guilty of infringement of the copyright in the work.

 to reproduce the work in any material form including the storing of it in any medium by
electronic means;

 to issue copies of the work to the public not being copies already in circulation;

 to perform the work in public or communicating it to the public;

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 to make any cinematograph film or sound recording in respect of the work;

 to make any translation of the work;

 to make any adaptation of the work;

 to do in relation to a translation or an adaptation of the work, any of the acts specified in

relation to the work in clause. (1) to (6);

 to permit for profit any place to be used for the communication of the work to the public
where such communication constitutes an infringement or copyright in the work, unless
he was not aware and had no reasonable ground for believing that such communication to
the public would be an infringement of the copyright;

 to make infringing copies of the work for sale or for hire or sells or lets for hire or display
or offers for sale or hire infringing copies or;

 to distribute infringing copies either for the purpose of trade or to such an extent as to
effect prejudicially the owner of the copyright;

 to exhibit infringing copies by way of trade to the public;

 to import into India infringing copies. However, the import of one copy of the work for
the private and domestic use of the importer is permitted.

In respect of a computer programme which is a form of literary work;

 to do any of the acts specified above and

 to sell or give on hire, or offer for sale or hire, any copy of the computer programme,
regardless of whether such copy has been sold or given on hire on earlier occasions.

Infringing copy means reproduction of the work made or imported in contravention of the
provisions of the Act [S. 2 (m)]. The reproduction of the work in the form of a cinematograph
film is deemed to be an infringing copy.

Infringement of Artistic Works [S. 51 r/w S. 14(c)]

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In respect of an artistic work infringement of the copyright consists in doing or authorizing the
doing of any of the following acts without the consent or license of the copyright owner:
reproducing the work in any material form, including the depiction in three dimensions of a two-
dimensional work or in two dimensions of a three dimensional work, communicating the work to
the public, issuing copies of the work to the public not being copies already in circulation,
including the work in a cinematographic film, making any adaptation of the work, in relation to
an adaptation of the work any of the acts referred to above, making for sale or hire, or selling or
letting for hire, offering for sale etc., infringing copies of the work distributing, exhibiting in
public for trade, infringing copies of the work, importing infringing copies of the work except
one copy for private use.

In order to constitute infringement, a substantial part of the plaintiffs' work must have been taken
and the defendant must have made use of the plaintiffs' work. What is substantial may depend
upon how important that part, is to the recognition and appreciation of the artistic work. It is
relevant to consider whether the feeling and artistic character have been taken.

Infringement of painting or a picture can be detected by a close comparison of the two works to
see whether minute details in original work have been reproduced in the alleged infringing copy.

If a painter uses a copyright photograph only as a source of inspiration or for reference purposes
only there may be infringement. If, however, the ultimate painting is a copy of photograph, there
would be infringement, especially if the photograph is an original one.

If a person gets his photograph taken by a photographer on payment the copyright in the
photograph belongs to the person. Accordingly, the publication of the photograph or its
exhibition at any place including the photographic shop window constitutes infringement of that
copyright.

What Are the Remedies Available Against Infringement of Copyright?

An author of a copyright work has the following special rights to claim authorship of the work,
to restrain or claim damages in respect of any distortion, mutilation, modification, or other act in
relation to the said work which is done before the expiration of the term of copyright, if such
distortion, mutilation, modification or other act would be prejudicial to his honor or reputation.
However, this right is not available in respect of any adaptation of a computer program to which
certain acts do not constitute infringement of the copyright in the work [S. 52(1)(aa)]. This
section provides that making of copies of adaptation of a computer program for certain purposes
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or to make backup copies for protection against loss, destruction or damage will not amount to
infringement of copyright in the work.

The author's special rights can be exercised even after the assignment of the copyright. They can
be enforced by an action for breach of contract or confidence, a suit for defamation or passing off
as the case may be.

In respect of works of architecture where the construction of a building or other structure which
would infringe the copyright in some other work has been commenced the owner of the work
will not be entitled to obtain an injunction to restrain the construction of such building or
structure or to order demolition. He cannot also claim damages for conversion.

In appropriate cases a declaratory order may be obtained as to whether what the defendant is
doing or proposes to do is an infringement of the copyright in a work.

Civil Remedies

The procedure before the court in a suit for infringement copyright is governed by the Code of
Civil Procedure.

 he is the owner of the copyright,

 copyright subsisted in the work infringed at the time the defendant committed the
infringement,

 particulars of the alleged infringement,

 what the defendant has done constitutes infringement of the copyright,

 the nature of damage if any suffered by him or likely to suffer.

The Defendant May Set-Up One or More of the Following Defenses:

 no copyright subsists in the work alleged to be infringed,

 the plaintiff is not entitled to sue (not the owner of copyright),

 the alleged copyright work is not original,

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 the alleged copyright is not entitled to protection being immoral, seditious or otherwise
against public policy,

 the defendants' work is independent and is not copied from the plaintiffs' work,

 the defendants' action does not constitute infringement of the plaintiffs' work and is
permitted under one or more of the exceptions to infringement,

 the suit is barred by limitation,

 the plaintiff is guilty of estoppel, laches and acquiescence or consent,

 the infringement is innocent, and the plaintiff is only entitled to the profits made by the
defendants on the sale of the infringing copies.

Innocent infringement is not a defense against infringement as such. But if the defendant proves
that at the date of infringement, he was not aware and had no reasonable ground for believing
that copyright subsisted in the work, the plaintiff will be entitled to only an injunction and a
decree for the whole or part of the infringing copies. Plaintiff will not be entitled to any remedy
in respect of conversion of infringing copies.

Anton Piller Order

In appropriate cases the court may on an application by the plaintiff pass an ex parte order
requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his
premises and take inspection of relevant documents and articles and take copies thereof or
remove them for safe custody. The necessity for such an order arises where there is a grave
danger of relevant documents and infringing articles being removed or destroyed so that the ends
of justice will be defeated. Such an order is called in the United Kingdom as an Anton Piller
Order (named after a plaintiff in a case where such an order was first passed). It is similar to an
ex parte interlocutory order to inspect the premises of the defendant and take inventory of the
offending articles etc., passed in an ordinary suit in India. In passing an order of this nature the
basic safeguards of equity must be strictly enforced. The plaintiff in his application must make
the fullest possible disclosure of all material facts within his knowledge, and if he fails to
discharge this obligation he will not be entitled to any advantage from the proceedings and he
will be deprived of any advantage already obtained by the order.

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Interlocutory Injunction

In order to secure immediate protection from a threatened infringement or from the continuance
of an infringement, a plaintiff may apply for an interlocutory injunction pending the trial of the
action or further orders. An application for such relief is made along with the plaint supported by
affidavit evidence. Very often an ex parte injunction is also sought, i.e., a temporary injunction
granted for a short period, for a week or so, before the defendant has notice of the suit or is
heard. For obtaining an interlocutory injunction the plaintiff has to establish a prima facie case
and that the balance of convenience is in his favor and that if the interim order is not granted it
will cause irreparable injury to the plaintiff. The defendant if injured as a result of the injunction,
will be entitled to compensation by virtue of an undertaking as to damages by the plaintiff which
is an invariable condition of the granting of such an injunction. An interlocutory injunction will
not be granted where the defendant might suffer irreparable injury from an injunction pending
trial and the plaintiff can be protected by the defendant being ordered to keep an account, nor
will it normally be granted where a bona fide defense of fair dealing has been pleaded, or if the
plaintiff has been guilty of undue drill coming to the court or his conduct amounted to
acquiescence in the infringement or if there is any substantial doubt as to the plaintiff's right to
succeed. It has been held that in considering whether to grant an interlocutory injunction the
court must look at the whole case. It must have regard not only to the strength of the claim, but
also to the strength of the defense and then decide what is best to be done. The remedy by way of
interlocutory injunction must not be made the subject of strict rules.

Damages or Account of Profits

There are two types of damages available to a successful plaintiff, one under S. 55 for
infringement and the other under S. 58 for conversion. The copyright owner is entitled to treat all
infringing copies of his work as if they were his own property. He will have to take civil
proceedings for the recovery of possession thereof or in respect of conversion thereof. The
plaintiff may also claim special damages for the flagrancy of infringement. As an alternative to
damages a successful plaintiff may claim account of profits.

Criminal Proceedings [Ss. 63-70]

In addition to civil remedies the Copyright Act enables the owner of the copyright to take
criminal proceedings against an infringer. Knowledge or mens rea is an essential ingredient of
the offence. These two remedies are distinct and independent and can be availed of

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simultaneously. The offence of infringement of copyright is punishable with imprisonment

which may extend from a minimum period of six months to a maximum of three years and with a
fine of the order of Rs. 50,000 to Rs. 2.00 lakhs. A Police Officer of the rank of Sub-inspector
and above is given the power to seize without warrant, all infringing copies of the work and
accessories for making infringing copies wherever found, to be produced before a Magistrate.

All infringing copies of the work in which copyright subsists and all plates used for the
production of such copies are deemed to be the property of the owner of the copyright in the
work. The court trying the offence may order that all copies of the work appearing to be
infringing copies or plates for making infringing copies in the possession of the alleged offender
be delivered up to the owner of the copyright without any further proceedings. This is so whether
the accused is convicted or not. However, for compensation in respect of conversion of
infringing copies the owner of the copyright will have to take civil proceedings. No court inferior
to that of a presidency magistrate or a magistrate of the first class can try an offence under the
Act. Any person can make a criminal complaint and a magistrate will be competent to take
cognizance of any offence upon receiving a complaint of facts which constitutes such offence
irrespective of the qualifications or eligibility of the complainant to file a complaint. Ordinarily,
however, it is the owner of the copyright or any person who has an interest in the copyright, e.g.,
the licensee, who files a complaint. A joint author can also file a complaint. The conduct of the
criminal proceeding is governed by the Criminal Procedure Code.

Threat of Legal Proceedings and Slander of Title [S. 60]

When the owner of the copyright in a work comes to know that his copyright is being infringed
by a person, he normally sends a notice to that person requesting him to forthwith discontinue
the act which constitutes infringement of the copyright. If the person complies with the request
the matter ends there subject to the question of compensation for damages and conversion, if
any, being settled by mutual agreement. This procedure is adopted only where the nature of the
infringement involved is such that it is not likely to be repeated, e.g. the performance in public of
a dramatic or musical work where the damages involved will be negligible. But where the
infringement involves the reproduction of a copyright work in large numbers and the damages
involved might be heavy the owner of the copyright sends notices to the persons involved in the
infringing acts, threatening them with legal proceedings. The threat may be direct or indirect. It
may be addressed to particular persons or generally and it may be made through circulars,
advertisements or otherwise.

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

Slander of Title

If a publisher publishes the work of A under the name of B with the approval of B and without
the consent of A, A may, in the absence of any express or implied contract, sue the publisher and
B for malicious falsehood or slander of title. Copyright Act provides that the author of a work
has the right to claim the authorship of the work. The Berne Copyright Convention also
recognizes this right. If this right is infringed the author can take proceedings against the persons
concerned for the relief of injunction and damages. The right to claim authorship exists even
after the assignment of the copyright in the work and can be exercised by the legal
representatives of the author. The plaintiff has to prove that the statement or representations
complained of were false or untrue; that they were made maliciously, that is, without just cause
or excuse, and that the plaintiff has suffered special damage thereby. Malice in the law of slander
of title and other forms of injurious falsehood means some dishonest or otherwise improper
motive. An intent to injure without just cause or excuse is sufficient.

Exceptions: Fair Dealing

The principle of conditional grants to proprietary rights in any intellectual property is to promote
public interest. This is universally recognized and incorporated in intellectual property system.
Protection and enforcement of intellectual property rights must:

 be conducive to social and economic welfare;

 safeguard an individual’s fundamental rights; and

 Promote commerce, competition, and innovation.

 In Copyright Laws exceptions and limitations are provisions which in public interest
permit the use of copyrighted works without prior authorization or a license from its
owner.

 Generally, exceptions and limitations to copyright are subject to a three-step test set out
in the Berne Convention for the Protection of Literary and Artistic Works. Briefly stated,
the Berne Convention provides that an exception or limitation to copyright is permissible
only if:

 it covers special cases

 it does not conflict with the normal exploitation of the work; and

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

 it does not unreasonably prejudice the legitimate interests of the author.

 Standard exceptions and limitations vary from country to country in their number and
scope.

In India the provisions of Section 52 of the Copyright Act, 1957 provide for certain acts,
which would not constitute an infringement of copyright namely fair dealing with a literary,
dramatic, musical or artistic work not being a computer program for the purposes of-

 private use, including research;

 criticism or review ,

 reporting current events in any print media or

 by broadcast or in a cinematographic film or by means of photographs,

 reproduction for the purpose of a judicial proceeding or of a report of a judicial

proceeding;

 reproduction or publication of a literary, dramatic, musical or artistic work in any work

prepared by the Secretariat of a Legislature or, where the Legislature consists of two
Houses, by the Secretariat of either House of the Legislature, exclusively for the use of
the members of that Legislature;

 the reproduction of any literary, dramatic, or musical work in a certified copy made or
supplied in accordance with any law for the time being in force;

 the reading or recitation in public of any reasonable extract from a published literary or
dramatic work;

 the publication in a collection, mainly composed of non-copyright matter, bona fide

intended for the use of educational institutions,

 the making of sound if made by or with the license or consent of the owner of the right in
the work

The Doctrine of Fair Dealing

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which allows a
person to make limited use of copyrighted work without the permission of the owner.

Whether a person’s use of copyright material is “fair” would depend entirely upon the facts and
circumstances of a given case. The line between “fair dealing” and infringement is a thin one. In
India, there are no set guidelines that define the number of words or passages that can be used
without permission from the author. Only the Court applying basic common sense can determine
this. It may however be said that the extracted portion should be such that it does not affect the
substantial interest of the Author. Fair dealing is a significant limitation on the exclusive right of
the copyright owner. It has been interpreted by the courts on a number of occasions by judging
the economic impact it has on the copyright owner. Where the economic impact is not
significant, the use may constitute fair dealing.

The fair nature of the dealing depends on the following four factors:

 the purpose of use

 the nature of the work

 the amount of the work used, and

 the effect of use of the work on the original

In the case of Kartar Singh Giani v. Ladha Singh, the High court held that:

“two points have been urged in connection with the meaning of the expression fair, in fair
dealing (1) that in order to constitute unfairness there must be an intention to compete and to
derive profit from such competition and (2) that unless the motive of the infringer were unfair in
the sense of being improper the dealing would be fair.”

Recent Developments:

Certain changes were incorporated by way of the Copyright (Amendment) Act, 2012. The
existing clause (1)(a) has been amended to provide fair dealing with any work for the purposes of
private and personal use with an exception that of a computer programme. With this amendment
in force, cinematograph and musical works also came under the ambit of the works to which the
fair use provision has been extended to. This amendment further provides for fair use of the work
aimed at the benefiting the disabled. It facilitates reproducing, issuing of copies, adapting, or

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

communicating to the public any work in any accessible format, for disabled persons to access
works including sharing with any person with disability for private or personal use, research or
for any other educational purposes.

International Copyright Order (ss40-41)

International Copyright Copyrights of works of the countries mentioned in the International

Copyright Order are protected in India, as if such works are Indian works. Copyright of nationals
of countries who are members of the Berne Convention for the Protection of Literary and Artistic
Works, Universal Copyright Convention and the TRIPS Agreement are protected in India
through the International Copyright Order. The list of such countries is mentioned in the
schedule of the International Copyright Order, 1999.

Issues in Digital Copyright

The copyright law in historical chronicles is known to be the legacy of technology. It has
undergone methodical changes keeping in view the nature, extent and domain of technology
involved to secure the public interest of imagination, invention, and resourcefulness. Its main
thrust is to provide adequate incentives to authors and creators of miscellaneous copyright works,
on the one hand, and make such works reachable to the public on the other hand.

The copyright law had to adjust itself between the need to award the creator and the
attractiveness of making such works public. With the ubiquity of the Internet as a exceptional
and wholly new intermediate of all-inclusive human communiqué all over the world, shrunk into
a digital global village, the protection of copyright works has become a serious concern for
lawyers, as well as, the other stakeholders. The Internet together with computer networks makes
it possible for a more and more large number of those to participate in collective information
construction, thereby debilitate the efforts to provide encouragements to original creators of
intellectual property. The Internet enables the nearly instantaneous, original quality reproduction
of and world-wide, lightening-speed dissemination of copyrighted works.

The above arresting features of Internet make itself emerge as “the world’s biggest copy
machine” The puzzles and inconsistencies underlying the digital dilemma, by nature, are
connected with the dichotomy between the notion of “information wants to be free” and the
anxieties for stronger registered control of information in the digital environment. Against the

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

above background this paper shall examine and critically analyse unindustrialized issues
regarding copyright protection in digital environment.

Government of India in 1998 passed the Digital Millennium Copyright Act, which updated
copyright laws to address the realities of Digital Technology at present. With the growth and
development of Technology and more particularly digitization, the entire world has recognized
the need for a Digital Copyright Law. Therefore, the existing Copyright law was evolved, as the
trend of maintaining records in the form of Digital data clearly requires protection a need felt all
around the world.

Digital Technology and Copyright Issues:

The advancement in technology postured new challenges to the current copyright laws, as the
law was primarily developed in the regime of print media that slowly evolved its protective
works to include creative works, paintings, drawings, sculptures, which later expanded to
photography and cinema as well. The age-old legislations and their core concepts in copyright
law had to be reentered, so as to make digital societal record progress. The technical copiers or
recorders made the digital data easily available with the increase in use of the internet, which
could lead to manipulation of the work vis a vis a free flow of information in society, as the
moment this digital record is placed in the public domain on the internet the author loses all
control.

The Latest Copyright (Amendment) Act 2012:

A fair dealing exemption use for education purpose which were earlier applicable only in relation
to certain types of work e.g., literary, dramatic, and musical works, have been made applicable to
all types of work.

A fair dealing exception has been extended to the reporting of current events, including the
reporting of a lecture delivered in public. Earlier, fair dealing exception was limited for private
or personal use, including research, and criticism or review, whether of that work or of any other
work. Further, it has been elucidated that the storing of any work in any electronic medium for
the purposes mentioned in this clause, including the accompanying storage of any computer
programme which is not a trespassing copy, does not establish infringement. The transient and

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

incidental storage of a work or performance purely in the technical process of electronic

transmission or communication to the public;

The transient and incidental storage of a work or presentation for the purpose of providing
electronic links, access, or integration, where such links, access or integration has not been
expressly prohibited by the right holder, unless the person responsible is aware or has reasonable
grounds for have confidence in that such storage is of an infringing copy: Provided that if the
person responsible for the storage of a copy, on a protest from which any person has been barred,
he may require such person to produce an order within fourteen days from the competent court
for the continued prevention of such storage;

The storage of a work in any medium by microelectronic means by a non-commercial public

library, for conservation if the library already enjoys a non-digital copy of the work; The
manufacture of a three-dimensional object from a two-dimensional artistic work, such as a
technical drawing, for the purposes of industrial submission of any purely functional part of a
useful device;

The progression of copyright has been closely linked to technical development. Whereas most of
the technologies made copyright defense more difficult, digital computers managed to alter the
fundamental concepts behind copyright. These contests to copyright industry have emerged at a
time when the share of exclusive rights in national financial prudence is reaching unprecedented
levels. It becomes critical to adjust the legal system to respond to the new technological
developments in an effective and appropriate way, keeping in view the speed and pace of these
developments.

The enforcement aspect of the provisions is a matter of great concern and there is an urgent need
of building better administrative machinery for the enforcement of the provisions of the
legislation which requires well-oiled enforcement machinery.

There is a need for trained and well-equipped specialized police force for detection and
enforcement of provisions relating to violation of copyright and there is also a need for change of
the judicial mindset in dealing with copyright violations.

There are still misconceptions, difficulties of access to courts, slow growth of copyright bar and
delay in disposal of whatever cases reach the courts. It is submitted that redress and access to the
adjudicatory machinery must be improved and this can be done in a better manner, if copyright
or intellectual property tribunals manned by specialists in the areas are set up throughout the
country. · The ubiquitous nature of Internet necessitates the consideration of multinational

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

enforcement, which will to some degree require the harmonization of domestic laws concerning
enforcement measures and facilitate the cross-border protection of copyright in the digital age.
Diversities in basic theories and in the practice of national systems protecting copyright and
related rights create obstacles to effective international and national implementation of protection
of authors and other right owners.

The experience and achievements of the harmonization programme of the European Community
demonstrate the opportunities of bringing together important provisions of diverse national
systems. The unity of legislative approach will, it is defer to, be the only effective way of dealing
with the problems posed for the exercise of copyright and related rights in the borderless
environment created by the Internet and other international communication systems.

The provisions of the Berne Convention taken in conjunction with those of other relevant
international apparatuses and the relevant regional instruments can, it is suggested, provide the
basis for a unified global system of copyright, and, to be effective, future planning should be
based on moves towards a world copyright regulation which will incorporate harmonized rules
on all fundamental issues.

Last but not the least, since, the pirate is using new knowledges in the digital atmosphere to
infringe on the copyright and related rights, so in the same vein, the holders of these rights
should use the very means to counter such actions of infringer. As renowned novelist Chinua
Achebe once said the Engel bird says ‘since man has learnt to shoot without missing, I have also
learnt to fly without perching.

The recent Modifications to the Indian copyright law have certainly given room for using
creative lawyering skills to develop and structure innovative business models to help the
industries effectively deal with the change.

Sd/-

Ms. Kriti Sharma

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