COPYRIGHT - INTRODUCTION

 COPYRIGHT

Copyright in India

What is a Copyright?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. 

In fact, it is a bundle of rights including, among other things, rights of reproduction, communication to the public, adaptation and translation of the work. 

It means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever.

Copyright assumes supreme importance for authors, artists, architects, composers, music production companies and producers, film production companies, computer programmers and designers.

USE OF THE "©" SYMBOL

Anyone who claims copyrights in a work can use copyright notice to alert the public of the claim. 

It is unnecessary to have a registration to use the designations. However, it is highly advisable to incorporate a copyright notice like the symbol, letter "c" in a circle or the word "Copyright" followed by the name of the copyright owner and year of first publication.

HISTORY

Before the signing and the subsequent introduction of the 1957 Act, the copyright laws of India were governed by the Copyright Act of 1914. This act was linked to the British Copyright of 1911 to India. 

Most of the laws contained in the Copyright Act of 1957 are based on the copyright law of the United Kingdom--specifically the Copyright Act of 1956. 

India's copyright laws comply with most international conventions and treaties dealing with copyright protection. The country is a member of the Berne Convention of 1886, the Universal Copyright Convention of 1951 and the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement of 1995--or TRIPS. The country is not a signatory to the Rome Convention of 1961, but the laws regarding the copyrights in the country still comply with the convention. 

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses.

India's Copyright Act, 1957, has been significantly amended. 

In May 2012, both houses of the Indian Parliament unanimously placed their seal on the Copyright Amendment Bill, 2012, bringing Indian copyright law into compliance with the World Intellectual Property Organization "Internet Treaties".

(The Copyright Act, 1957 had been amended five times before 2012, once each in 1983, 1984, 1992, 1994 and 1999, to meet with the national and international requirements.)

The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

Exclusive right….

In the case of literary, dramatic or musical work (except computer programme):

• reproducing the work in any material form, which includes storing of it in any medium by electronic means;
• issuing copies of the work to the public which are not already in circulation;
• performing the work in public or communicating it to the public;
• making any cinematograph film or sound recording in respect of the work;
• making any translation or adaptation of the work.

Further, any of the above-mentioned acts concerning work can be done in translation or adaptation of the work.

In the case of a computer programme:

• to do any of the acts specified in respect of a literary, dramatic or musical work; and
• to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme. However, 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 artistic work:

• reproducing 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;
• communicating the work to the public;
• issuing copies of work to the public which are not already in existence;
• including work in any cinematograph film;
• making an adaptation of the work, and to do any of the above acts concerning an adaptation of the work.

In the case of cinematograph film and sound recording:

• making a copy of the film including a photograph of any image or making any other sound recording embodying it; 
• selling or giving on hire or offer for sale or hire any copy of the film/sound recording even if such copy has been sold or given on hire on earlier occasions; and
• communicating the film/sound recording to the public.

In the case of a 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.
• To communicate the sound recording to the public.

Definitions

Work

• Classes of works for which copyrights protection is available in India
• Original literary, dramatic, musical and artistic works;
• Cinematograph films; and
• Sound recordings.

Artistic work

• a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
• a work of architecture; and
• any other work of artistic craftsmanship.

Musical work

"Musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music.

Sound recording

"Sound recording" means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. 

A phonogram and a CD-ROM are sound recordings.

Cinematograph film

"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 and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.

Coverage for Government Work

The copyright of 1957 also calls for the protection of government work. Government work, according to the act, refers to all works that are made, published and made under the direction or control of the government, the legislature, the courts, tribunal and other judicial authority.

Author

Ordinarily, the author is the first owner of copyright in a work.

• In the case of a literary or dramatic work, the author, i.e., the person who creates the work.
• In the case of a musical work, the composer.
• In the case of a cinematograph film, the producer.
• In the case of a sound recording, the producer.
• In the case of a photograph, the photographer.
• In the case of a computer-generated work, the person who causes the work to be created.

Significance

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

• Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original means that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. 

• However, it is always advisable to obtain a registration for better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.

• As per Section 17 of the Act, the author or creator of the work is the first owner of the copyright. An exception to this rule is that the employer becomes the owner of copyright in circumstances where the employee creates a work in the course of and scope of employment. (Academy Of General Edu., Manipal & vs B.Malini Mallya on 23 January 2009)

• Copyright registration is invaluable to a copyright holder who wishes to take civil or criminal action against the infringer. Registration formalities are simple, and the paperwork is the least. In case the work has been created by a person other than the employee, it would be necessary to file with the application a copy of the assignment deed.

• One of the supreme advantages of copyright protection is that protection is available in several countries across the world, although the work is first published in India by reason of India being a member of the Berne Convention. Protection is given to works first published in India, in respect of all countries that are member states to treaties and conventions to which India is a member. 

• Thus, without formally applying for protection, copyright protection is available to works first published in India across several countries. Also, the government of India has, by virtue of the International Copyright Order, 1999, extended copyright protection to works first published outside India.

The Term of Copyright

Copyright does not last indefinitely.

Sec.22 to 29 of the Copyright Act, 1957 deal with these aspects:- 

The term varies as per the- 

• Nature of the work; or 
• Whether the author is a natural/legal person, or 
• Whether work is anonymous or pseudonymous. 

In case of - Literary, Dramatic, Musical or Artistic Works; 

• The term is for Lifetime and thereafter for 60 years; 
• Joint Owners – 60 years starts after death of last owner; 
• Anonymous/Pseudonymous works- 60 Years from the year of publication If identity disclosed, term extended to 60 years after the death of the author. 

• Photographs- 60 years from the year of publication 
• Cinematograph Film- 60 years from the year of publication 
• Government undertaking- 60 years from the year of publication 
• International Organisation- 60 years from the year of publication 
• Performer's Rights- 25 years from the year of performance 
• Broadcasting Reproduction Rights- 25 years from the year of Broadcast

Objective

The main objective of the Copyright Act is to give protection to the owner of the copyright from the dishonest manufacturers, who try to confuse the public and make them believe that the infringed products are the products of the owner. Further, it wants to discourage the dishonest manufacturers from enchasing the goodwill of the copyright owner, who has established itself in the market with its own efforts. 

HAWKINS COOKER LTD. v. MAGICOOK APPLIANCES, 100 (2002) DLT 2008

Court-ordered for perpetual injunction restraining the defendants, their servants, agents etc., from using a get up of label concerning pressure cookers which are deceptively similar to the label of the plaintiff having distinctive features and registered under the provisions of the Copyright Act, 1957. The defendants were also restrained from dealing with the cookbooks of the plaintiff company and were directed to deliver up to the plaintiff company for destruction all such pressure cookers and books complained against and all accessories and articles employed by the defendants in the manufacture of the offending goods which are in the custody, power, possession and control of the defendants. The plaintiff company is also entitled to damages arising upon the rendition of accounts by the defendants.

Copyright protects the expressions and not the ideas.

There is no copyright in an idea.

RG ANAND v. DELUX FILMS, (AIR 1978 SC 1613) 

The plaintiff wrote the play Ham Hindustani, and it soon became very popular. In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff that he wishes to make a movie based on the play. The plaintiff met the defendant and discussed the entire play. The defendant did not commit anything, but the plaintiff later came to know that the defendant released a movie titled New Delhi. After watching the movie, the plaintiff was of the opinion that it is based on the story of his play. So he filed a suit against the defendant for permanent injunction and damages. Both the District Court and the High Court ruled against the plaintiff on a finding of the facts. The case finally reached the Supreme Court of India.

Important issues discussed by the Court

• Is the film New Delhi an infringement of the plaintiff's copyright in the play Hum Hindustani?
• Have defendants or any of them infringed the plaintiff's copyright by producing, or distributing or exhibiting the film New Delhi?

The Court clarified the following important aspects in this case -

• There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts, and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
• It has to be seen whether similarities are fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. Copying should be substantial or material.
• Test: Whether the viewer, after having read or seen both the works, is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
• Where the theme is the same but presented differently, there can be no question of infringement.
• If there are material and broad dissimilarities along with similarities, it negatives the intention to copy the original work. If the coincidences appearing in the work are clearly incidental, then there can't be infringement.
• If the viewer, after the incident, gets the idea that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
• The burden of proof is on the plaintiff in cases where a stage play has been infringed by a movie director.

After applying the principles enunciated above, the court ruled that it cannot be said that the film is a "substantial or material copy of the play written by the plaintiff." The judges were of the opinion that no prudent person, after seeing both the works, will get the impression that there is a copy. At most, the central theme of provincialism is the same, but that is an idea not protected by copyright. 

Justice Pathak, in his concurring opinion, said, "the story portrayed by the film travels beyond the plot delineated in the play." He also observed that "In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so developing his own product that it covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism." However, he said, in the present case, the dissimilarities are so material that it is not possible to say that there is an infringement. For future cases, he opined that "In another, and perhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable limitation."

Significance of the decision

This judgement is considered a landmark decision in the area of Indian copyright law. 

Most importantly, it clarified that copyright protection does not extend to mere ideas. 

This case has been cited and followed in many of the subsequent judgments from different courts in India. 

One of the most recent ones is Mansoob Haider v. Yashraj Films, from the Bombay High Court where the Court had to decide whether the Bollywood movie Dhoom 3 was an infringement of the plaintiff's copyright in the script ONCE.

Meaning of Originality.

The word "original" does not mean that the work must be the expression of original or inventive thought. 

The Copyright Act is not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing.

The originality which is required relates to the expression of the thought. 

But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work—that it should originate from the author; and as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation. 

The words "literary work" cover work which is expressed in print or writing irrespective of the question whether the quality or style is high. 

The commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright. 

The word "original" does not demand original or inventive thought, but only that the work should not be copied but should originate from the author.

Indian perspective on copyright protection

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

• Economic rights of the author, and 
• 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 a 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 a 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 a 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 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.

Economic Rights - Summary

Economic Rights of Copyright Literary, Dramatic and Musical Work:- 

Following are the Economic Rights:- a) To reproduce or store the work. b) To issue copies to the public. c) To perform the work in public. d) To make cinematograph film or sound recording. e) To make a translation of the work. f) To make an adaptation of the work, 

Artistic Work:- 

Following are the Economic Rights:- a) To reproduce the work. b) To communicate the work to the public. c) To include the work in a cinematograph film. d) To make an adaptation of the work.

Cinematograph Film:- 

Following are the Economic Rights:- a) To make copies of the film. b) To sell or give on hire a copy of the film. c) To communicate the film to the public. 

Sound Recording:- 

Following are the Economic Rights:- a) To make any other sound recording embodying it. b) To sell or give on hire a copy of the sound recording. c) To communicate the sound recording to the public.

Moral Rights

Section 57 of the Act defines the two basic "moral rights" of an author. These are: 

(i) Right of paternity, and 

(ii) Right of integrity.

The right of paternity: An author has a right to claim authorship of his work and can prevent all others from claiming authorship of his work. He can also demand to include his name to appear in all the copies of his work at an appropriate place. 

Right of integrity: An author has a right to prevent distortion, mutilation or other alteration of his work, etc., which would be prejudicial to his honour and reputation. It is essential where a licence or assignment has been granted to adapt or alter the work in some way, e.g. A novel into a play, play into a film.

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 display it to the author's satisfaction shall not be deemed 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.

Indian Judiciary Response

The response of the Indian judiciary regarding copyright protection can be grouped under the following headings: 

• Ownership of a copyright, 
• Jurisdictional aspect, 
• Cognizance taken by the court, 
• Infringement of copyright, 
• Availability of alternative remedy, and 
• Rectification of copyright.
• Ownership of copyright 

The ownership in copyright may vest in different persons under different circumstances.

Eastern Book Company v Navin J.Desai

The question involved was whether there is any copyright in the reporting of the judgment of a court. 

Reproduction of a judgment of the court is an exception to the infringement of the Copyright. The orders and judgments of the court are in the public domain, and anyone can publish them. Not only that being Government work, but no copyright also exists in these orders and judgments. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial, and hence no copyright exists therein.

Ownership of copyright 

Godrej Soaps (P) Ltd v Dora Cosmetics Co 

Delhi High Court held that where the carton was designed for valuable consideration by a person in the course of his employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff is the assignee and the legal owner of copyright in the carton including the logo.

Jurisdictional aspect

The question of territorial jurisdiction of the court to deal with copyright infringement was considered by the courts on several occasions.

Sec 62: (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.

(2) For the purpose of sub-section (1), and "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. 

The court held that section 62 of the Copyright Act makes an obvious and significant departure from the norm that the choice of jurisdiction should primarily be governed by the convenience of the defendant. 

The legislature, in its wisdom, introduced this provision laying down absolutely opposite norm than the one set out in section 20 CPC. 

The purpose is to expose the transgressor with inconvenience rather than compelling the sufferer to chase after the former.

Caterpillar Inc v Kailash Nichani:

The plaintiff, a foreign company, was carrying on business in several places in India, including Delhi, through its Indian distributors and collaborators. The plaintiff claimed the relief of ad-interim injunction for preventing infringement of its copyright by the defendant, though the defendant was dealing in different goods. 

The Delhi High Court held that it was not necessary to show that the business is carried on by the plaintiff in Delhi should necessarily be in respect of footwear and articles of clothing as well. 

It is sufficient if the business was being carried on by the plaintiff in Delhi and further that there was an infringement of the plaintiff's copyright in respect of certain goods, which were being sold by the defendant in Delhi. 

Lachhman Das Behari Lal v Padam Trading Co:

The Delhi High Court observed that the plaintiff being a firm functioning at Delhi, the suit filed by it in the Delhi courts is maintainable and is not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. 

The Court further observed that the plea regarding want of territorial jurisdiction is not covered by Order7 rule 11 of CPC. 

The court observed that even if it is held that this court has no territorial jurisdiction, the plaint cannot be rejected. At the most, it can be returned for presentation to the proper court.

Cognizance was taken by the court.

To prevent copyright infringement, timely cognizance taking by the appropriate court is absolutely essential. The taking of cognizance by the court depends upon the limitation period as mentioned in the Limitation Act, 1963 and Cr. P.C, 1973.

David Pon Pandian v State:

The Madras High Court observed: The Court can take cognizance of the offence if the charge sheet is filed within the period of limitation prescribed under Section 468 of the Cr. P.C and in computing the period of limitation, the date of commission of the offence is to be reckoned as the starting point. 

If the charge sheet is not filled so, the Court has no power to entertain the complaint.

State of Punjab v Sarwan Singh:

The Supreme Court Observed: "The object of Cr. P.C in putting a bar of limitation on the prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also prevent abuse of the process of Court by filing vexatious and belated prosecutions long after the date of the offence. Moreover, the object, which the statute seeks to sub-serve, is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of utmost importance that any prosecution, whether by State or a private complainant, must abide by the letter of the law or take the risk of the prosecution failing on the ground of limitation."

Infringement of copyright

A copyright owner cannot enjoy his rights unless the infringement of the same is stringently dealt with by the Courts. 

The approach of the Indian Judiciary in this regard is very satisfactory.

Availability of alternative remedy

The copyright Act provides adequate safeguards and procedure. 

It cannot be said that a mere apprehension that a certain offence may take place, a writ can be filed seeking a direction that no such offence be allowed to take place.

First, authorities have to be asked to prevent it. The function of the police is to prevent piracy and unauthorized exhibition.