Copyright Law

Dr. Bindu Ronald

 Copyright-International conventions

Berne Convention, Universal Copyright

1886 Convention, 1952

Rome Convention for

Performers, Phonograms,
and Broadcasting
Organizations, 1961

WIPO Copyright WIPO Performances and

Treaty, 1996 Phonograms Treaty, 1996
2
 COPYRIGHT— Copyright Act
1957

protection requirement
protection requirement

Scope of protection
Subject matter

Substantive

Formal
Form of expression Exclusive rights
Artistic Reproduction,
Registration or distribution,
Literary,
No registration Adaptation ,
Dramatic Originality
translation,
Musical, performing rights
Sound recording Moral right
3
cinema
 Rights conferred on the copyright
holder
ECONOMIC RIGHTS
• Right of Reproduction
• Right to Issue copies
• Right of Performance
• Right of Communication to public
• Right to make any cinematograph film
or sound recording in respect of the work;
• Right to translation
• Right to adaptation
MORAL RIGHTS
• Right of Paternity
• Right of Integrity
Defence of FAIR USE
 Theory of Copyright
• Reward for the author
• Stimulates artistic creativity
• Meaning of the term Copyright
• It means the exclusive right to do or authorise
other to certain acts in relation to-
- Literary , dramatic or musical works
- Artistic work
- Cinematograph film
- Sound recording
 Characteristics of Copyright
• Creation of statute
• Some form of intellectual property
• Monopoly right
• Negative right( it is a right to prevent others
from copying or reproducing)
• Copyright only in form not in idea
• Object of copyright:
- Encourage authors, composers artists to
create original works
Statute: Indian Copyright Act of 1957 as
amended
Author must have bestowed upon the work
sufficient judgment skill and labour
Protection is not on an idea- but on how it has
been woorked
 Musical Works
• Original musical work – copyright available
• Adaptation of a musical work is also entitled to
copyright protection
( leeway to musical composers to come out with remix
versions of the musical works)
Song: There is no copyright in a song, the words of the
song create a copyright in the author of the song and
the music of the song is the copyright of the composer
In a case where a song is written and the music
composed by the same man , he would own the
copyright in the song.
• Paintings: only a painting on a tangible surface
is entitled to be copyrighted
• Face makeup cannot be considered a painting
• Drawing including a amap, diagram chart or
plan qualifies for copyright protection
• A photograph is entitled to copyright
• Work of architecture qualifies for copyright
protect – besides being original, must also
possess artistic quality
• ‘A cinematograph film means any work of visual
recording on any medium produced through a
process from which a moving image may be
produced by any means and includes a sound
recording accompanying such visual recording
• For the purpose of copyright , the producer is
considered to be the author of the
cinematograph film
• The act does not specify any specified levels of
originality in the cinematograph film
• Term of copy right: varies according to the
nature of work
In case of literary , dramatic, musical or artistic
work: 60 years from the death of the author
Photographs: 60 yrs from publication
Cinematograph films: 60 yrs from publication
Sound recording : 60 yrs from publication
broadcast reproduction right: 25 years from
when it is broadcast
 Original Work of Authorship
• Work of authorship must be original
• Fixed in a tangible medium
 A work is fixed in a tangible medium of expression
when its embodiment in a copy or phonorecord by or
under the authority of the author, is sufficiently
permanent or stable to permit it to be perceived
reproduced or otherwise communicated for a period of
more than transitory duration
• What is original?
 Independent Creation
 Modicum of originality
• The ‘idea ‘ is the common property of the
whole world
• The author has the right to express the idea in
his own way. Only expression is protectable
 Plagiarism and Copyright Violation
Copyright violation Plagiarism
Nature Legal offence Intellectual dishonesty

Who enforces it The courts Intellectual peers

How to avoid it Get the authorisation from Cite the original author
the copyright owners
Threshold of violation Reasonable fairuse allowed Very stringent
• Acts which constitutes infringement
• Substantial copying
• Direct evidence of copying from the source in
which copyright subsists
• Indirect copying: e.g. A novel converted to a
play, the play converted to a ballet
Conscious copying, unconscious, subconscious
copying
Certain acts does not constitute infringement
 Remedies for Infringement
• Civil remedies
• Criminal remedies: fine and imprisonment
• Administrative remedies: moving the registrar
of copyright to ban the import of infringing
copies to India when infringement is by
importation.
 Process of registration
• Person applying for a copyright to give notice of
the application
• If no objection received in 30 days enter the
particulars in the Register of Copyrights ,in case
objection received , hold inquiry into the matter
• Enter it in the registers if he considers it proper
• Copies of entries to be sent to the parties
concerned
• Appeal from the decision of the registrar to the
Copyright Board
 Kimba and Simba

• Kimba and His father • Simba and His father

 Meat eaters eat bugs

• Both title characters turn to eating

bugs to save their herbivore friends • In The Lion King, they blow past
the meat eaters tried eating plants this idea in under a minute
until they hit on the idea of eating
bugs
 More similarities

• Dangling with his

villainous aunt above • His uncle Scar Above…
 Over the cliff

• Aunt pushes Kimba • Uncle pushes

over the cliff Simba over…
 Celestial Beings

• Kimba’s and simba’s fathers comforting their sons…one

in the moon and the other in a haze of cloud
 More similarities

• Kimba’s father as a • Simba’s father as a…cloud

cloud
 Fair Use
• Section 52 –Copyright Act
• Can fairuse apply as a defence in the case of
an unpublished work?
• Can fairuse apply as a defence in the case of
an about- to – be published work?
 Fair Use Test
Matters to be considered include
1. The purpose and character of use including
whether such use is of a commercial nature or is
for non- profit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion
used in relation to the copyrighted work as a
whole
4. The effect of the use upon the potential market
for or value of the copyrighted work
 Purpose of Use
• What was the nature of use?
• Was it commercial?
• Was there good faith and fair dealing?
 Sony Corp. of America v. Universal City
Studios, Inc.
464 U.S. 417 (1984)[1]
• Does the sale of VCR to the public violate
Copyright Act?
• Can a theory of liability be made out for those
who sell circumvention devices?
• Why hold manufacturers liable? Why not sue
the broadcasters? Why not sue the infringing
consumers?
• What does Sony argue in defense?
• also known as the "Betamax case", is a decision by the
supreme court of US which ruled that the making of
individual copies of complete television shows for
purposes of time-shifting does not constitute copyright
infringement, but is fair use. The Court also ruled that the
manufacturers of home video recording devices, such as
Betamax or otherVCRs (referred to as VTRs in the
case), cannot be liable for infringement. The case was a
boon to the home video market as it created a legal safe
haven for the technology, which also significantly
benefited the entertainment industry through the sale of
pre-recorded movies.
 Zee Telefilms V/s Sundial
Communications
[2003(27)PTC 457]

The Plaintiffs conceived a

concept based on a family, in
which, a child appearing to be
the reincarnation of Lord
Krishna, helps the family.
The above concept was named
“Kanhaiya”, which was
presented by the Plaintiffs to
the Directors of the
Defendants. The above
concept was disclosed on
confidentiality and non –
disclosure.

10/27/24
The concept was further worked on by the Plaintiffs under title “Krish
Kanhaiya”, and detailed notes and documents were prepared. In the
meantime, the Defendants rejected this idea and a little later the Plaintiffs
learnt that the defendants had applied to IMPPA for registration of the title
‘Krish Kanhaiyya’ and the concept was about Kanhaiya coming down to earth
as a girl and not a boy, but having the same storyline. The Defendants pleaded
that they had merely borrowed an idea. Held:The Plaintiffs had developed his
idea into expression, and this has fallen into the category of , “Literary
work”.The idea was given embodiment in a tangible form, by the Plaintiff which
was adopted by the Defendant, so the Defendants had committed an act of
Infringement.
 Frisby V/s BBC
[(1967) Ch 932]
The Plaintiff had written a play for BBC, and the BBC deleted
a particular line from the play. The detailed contract between
the parties did not allow BBC to make a structural change.
The Plaintiff contended that, the line was essential leading to
the climax of the play.
Held:
The court held, after considering the Author to be the best
judge, in deciding the importance of the line, and deciding that
the contract was a license, the court granted appropriate relief
on basis of the breach of license.

10/27/24
 Serial Karishma: The Miracle of Destiny

In the present case, Barbara Taylor Bradford, a well known New York based
novelist, sued Sahara TV alleging the serial was infringing copyright of her
novel ‘A Woman of Substance’. Taylor Bradford, on knowing about the serial
obtained an interim injunction against the serial.
Sahara TV defended and argued that, story was the original work of Sachin
Bhowmick and they had completed 48 episodes and also spent millions for
making and promoting the serial.
It was Held:
The Calcutta High Court heard the matter on 21st July 2006, setting aside order
10/27/24
by Taylor Bradford and allowed the serial to continue.
• The Court held that the
Copyright law does not protect
the theme of a book. The
Court highlighted that there
could be no copyright in an
idea and what really matters is
an expression of the idea.
Basic plots were not
protectable under Copyright
law. Infringement could only be
established if there is similarity
of incidents, events,
expression of language and
situation.
 Cambridge University Press & Anr V/s B. D.
Bhandari & Anr [2005(2)CTMR 162 (Delhi)]
Plaintiffs are holding all Copyrights in respect of the publication of the book
“Advanced English Grammar by Martin Hewings”
The Defendants published “MBD English Guide for BA, BSC, BCOM” prescribed
by, Guru Nanak Dev University.
The allegations were that, complete Question and Answer keys copied. The
violation of the copyrights of the Plaintiff Company, was under Section 51 of
the Copyrights Act.
The Plaintiffs charged Rs.95 for the book on entire subject work of 3 years, whereas
the Defendants charged Rs. 630-660 for the books of 3 years course.
The Defendants averred that-
The publishing of the guide falls under the public domain and is authorised by
experienced teachers and is in the nature of research work.
The defendants have taken strict compliance with Section 52(1)(h) of the Copyright
Act, the reproduction of literary, dramatic, musical & artistic work as part of
questions to be answered does not amount to infringement.
Held:
The Section 52(1)(h) would not apply, as it would be applicable only when
material from the original is reproduced as a part of the questions to be
answered in an examination. An exparte interim injunction was
confirmed
10/27/24
by the judge in favour of the Plaintiffs.
 Bharati Cellular Ltd & Anr V/s Jai
Distillers Pvt. Ltd [2006 (2) CTMR 135
(Bombay)
Plaintiffs are carrying on business in telecommunication services under brand name
“Airtel” since 2002.
Defendants are also using the same mark “Airtel” in respect of whisky.
Not only are the words are similar but also the font style and design of the label are also
absolutely identical. The Plaintiffs were the prior holders of the copyright and
authors of the said artistic work.
The contentions laid down by the defendants for using the mark Airtel is that after
drinking the whisky people fly in the air and talk anything.
The Plaintiffs contended in light of the provisions of Section 14, 31 and 55 of the
Copyright Act, that they are entitled to protect their label mark ‘Airtel’ as a prior
holder and author of the said artistic work.
Held:
The defendant is passing off the copyright work of the Plaintiffs by using the same style,
colour and labels.
The defendants are ordered to stop using the identical mark ‘Airtel’ and the identical
artistic design and style.

10/27/24
 Heinz Italia & Anr V/s Dabur India Pvt Ltd
[2007(2) CTMR 1
Appellants filed a suit in Supreme Court alleging that, they are
(SC)
proprietors of the trade mark Glucon D since 1940.
The Respondents launched a similar product under the name
Glucose D, and have been producing it since the year 1989.
In July, 2002 the Appellants learned that the Respondents had
launched a similar product, on knowing the same the
Appellants served notice to the Respondents, however they did
not reply. Later the Appellants filed a suit under Section 29 &
106 of the Trade Mark Act and also under Section 63 of the
Copyright Act. The Appellants pleaded that, the Respondents
were trying to impinge on their goodwill and reputation which
they enjoyed in the market for years and the Respondents
product was deceptively similar to that of the Appellants. The
Respondents alleged that, Glucose was a generic word and no
monopoly could be claimed on said word or its derivatives.
It was Held that: Both “Glucon D” and “Glucose D” are items
containing glucose and they appear such that, they shows a
remarkable phonetic similarity between the two words.
Further held that the packaging of the two are also so similar
that, it10/27/24
can easily confuse the purchaser. So an application for
ad-interim injunction is allowed.
 Remedies Against Infringement
• Three kinds of remedies:
1. Civil remedies
2. Criminal remedies
3. Administrative remedies
 Civil Remedies
• Injuction
• Damages
• Account of profits
• Damages for conversion
 Civil Remedies
• Anton pillar:
The court passes an ex-parte order requiring the
defendant to allow the plaintiff accompanied
by an attorney to enter his premises and make
an inspection of the relevant documents and
articles and take copies thereof or remove
them to safe custody.
• Such orders necessary when there is an
apprehension I the mind of the plaintiff and
the court that relavant documents and articles
may be destroyed.
 Mareva injunctions
• It is a type of interlocutory relief designed to
freeze the assets of a defendant, in
appropriate circumstances, pending
determination of a plaintiff's claim. Mareva
injunctions are often used to prevent a
defendant from transferring assets out of the
Court's jurisdiction as soon as a claim is
served, in order to frustrate enforcement of
any ensuing judgment.
• It is also called as freezing injunction
• The granting of a Mareva injunction does not give
the plaintiff the property, nor does it give the plaintiff
a lien on the defendant's property. It gives no priority
to the potential creditor over other claimants before
or after judgment. The defendant is restrained from
disposing of his assets in the sense that to do so will
constitute contempt of court, but the injunction does
not affect the defendant's power to dispose of his
assets.
 Interlocutory Injuction
• Immediate protection from existant
infringement
The following has to be proved
• A prima facie case
• Balance of convenience in plaintiffs favour
• Refusal to grant the injunction should cause
irreparable damages
 Criminal Proceedings
• In addition to civil remedy, the plaintiff can
initiate criminal proceedings
• Two remedies are distict and can be invoked
simultaneously
• Punishable with imprisonment which may
extend from a minimum period of 6 months to
max of 3 years and with a fine of rs. 50,000 to
2 lakhs
• No court inferior to that of a magistrate of the firsty
class can try an offence under the Act
• Proceedings governed by Cr. PC
• The court may order a police office of the rank of
sub- inspector and above to sieze without warrant,
all infringing copies of the work and accessories for
making infringing copies and produce them before
the Magistrate.
 Defences available to the defendant
1. No copyright subsists in the work alleged to be
infringed
2. Plaintiff not entitled to sue as he is not the owner
of the copyright
3. The alleged work itself is not original and is an
infringement
4. The alleged copyright is not entitled to protection
being immoral, seditious or against public policy
5. Defendant has created the work independently
6. Falls under one of the exceptions under
Section 52
7. Suit barred by limitation
8. Plaintiff guilty of estoppel
 Copyright Societies
• They are entities which safeguards the
interests of the owners of the work in which a
copyright subsists. The author of the work is
guaranteed of commercial management of his
work by these societies
• Collective administration of copyright by societies is
a concept where management and protection of
copyright in works are undertook by a society
ofowners of such works.

• Obviously no owner of copyright in any work can

keep track of all the uses others make of his work.
When he becomes a member of a national copyright
society, that society, because of its organisational
• facilities and strength, is able to keep a better
vigil over the uses made of that work
throughout

• the country and collect due royalties from the

users of those works.
• Because of the country’s membership in
international conventions, the copyright societies are
able to have reciprocal agreements with similar
societies in other countries for collecting royalties for
the uses of Indian works in those countries.

• Users of different types of works also find it easy to

obtain licences for legal exploitation of the works in
question, though the collective administrative
society.
• A copyright society is a registered collective
administration society under Section 33 of the
Copyright Act, 1957.
• Such a society is formed by copyright owners.
• The minimum membership required for
registration of a society is seven.
• Ordinarily, only one society is registered to do
business in respect of the same class of work.
• A copyright society can issue or grant licences
in respect of any work in which copyright
subsists or in respect of any other right given
by the Copyright Act.
 Functions of Copyright Societies
1. grant license of the copyright in the work for
reproduction , performance or
communication to public.
2. Locate instances of infringement of copyright
and initiate legal action against the infringers
• The Central Government shall not ordinarily
register more than one copyright society to
do business in respect of the same class of
works.
• The central government may , if it is satisfied that a
copyright society is being managed in a manner
detrimental to the interests of the owners of the
rights concerned, cancel the registration of such
society after such inquiry as may be prescribed.
• Registration may be suspended pending inquiry( for
not more than 1 year) if the central government
considers it appropriate. In that case the central
Government may appoint an administrator to
discharge the functions of the copyright society.
• A copyright society may accept from an owner
of the rights exclusive authorisation to
administer any right in any work by issue of
licenses or collection of license fees or both.
• An owner shall have the right to withdraw
such authorisation without prejudice to the
rights of the copyright society under any
contract.
• The copyright society shall subject to such
rules as may be made in this behalf , frame a
scheme to determine the quantum of
remuneration payable to individual copyright
owners having regard to the number of copies
of the work in circulation
Control by the owner of rights over
the copyright society
1. Every copyright society shall be subject to the
collective control of the owners of rights , whose
rights it administers.
2. Copyright society shall obtain approval of such
owners of rights for its procedures of collection and
distribution of fees.
3. Obtain their approval for the utilisation of any
amounts collected as fees for any purpose other
than distribution to the owners of rights
4. Provide to such owners regular, full and detailed
information concerning all its activities in relation to
the administration of their rights.
5. Every copyright society shall submit to the registrar
of copyrights the returns
6. Any duly authorised officer appointed by the Central
Government may call for any records or reports from
the copyright societies for satisfying himself about
the fees collected and its utilisation.
The following are the registered copyright societies in
India:

1. For cinematograph and television films :

Society for Copyright Regulation of Indian Producers
for Film and Television (SCRIPT)
135 Continental Building, Dr. A.B. Road, Worli,
Mumbai 400 018.
 For musical works:
The Indian Performing Right Society Limited
(IPRS),
208, Golden Chambers, 2nd Floor, New Andheri
Link Road,
Andheri (W), Mumbai- 400 058

( Web-site:http://www.iprs.org/ );
 Assignment and Licenses of
Copyright

• Licenses: transfer of interest

• Assignment: transfer of onwership
• Assignment: Section: 18,19,19A
• Assignment may be for the whole of the rights
or for part of the rights
• It may be general or it may be subject to
limitations
• It may be for limited period of time or it may
be for an unlimited period
• It may be on a territorial basis
 Mode of Assignment
1. Assignment is vaild only when it is in writing signed
by the author/ duly authorised agent.
2. The instrument should identify the works assigned,
duration and the territorial extent.
3. Instrument shall also specify the royaly payable.
4. If assignee does not exericse his rights within an
year of assignment, the assignment lapses, unless
otherwise specified in the instrument
5. When period of assignment not stated then
assignment deemed to be for 5 years

6. If territorial extent not stated , then presumed

to extent to the whole of India.

7. In respect of future works, assignment will take

effect only when the work comes into existence
• Transmission of copyright by operation of law

• The author of the work may relinquish all or

any of the rights comprised in the copyright in
the works by giving notice to the registrar of
copyright.
 Licenses
• Licenses may be in respect of any existing or
future works
• Should be in writing signed by author / duly
authorized agent
• Compulsory licensing: Section 31
• Compulsory licensing of unpublished work
• According to section 32 , any person may
apply to the copyright Board for a license to
produce and publish translation of a literary /
dramatic work in any language after a period
of seven years from the first publication of the
work
3. For sound recording:

Phonographic Performance Limited (PPL)

Flame Proof Equipment Building, B.39, Off New
Link Road, Andheri (West),
Mumbai 400 053

( Web-site:http://www.pplindia.org/ );
For reprographic(photo copying) works:
Indian Reprographic Rights Organization (IRRO),
18/1-C, Institutional Area,
Near JNU Campus, New Delhi – 110067,

(Web-site: http://www.irro.in/ )