FACULTY OF LAW, JAMIA MILLIA ISLAMIA

(CENTRAL UNIVERSITY), NEW DELHI

ASSIGNMENT SUBMISSION
INTELLECTUAL PROPERTY RIGHTS- I
ON
“COPYRIGHT-CONCEPTS, SUBJECT MATTER, NATURE,
GENESIS, EMERGENCE, INTERNATIONAL FRAMEWORK”

SUBMITTED BY: HUZAIFA SALIM

STUDENT ID- 20182883

EXAMINATION ROLL NO- 18-BLW-

026

BATCH: 2018 – 2023 SEMESTER VIII | REGULAR

MAY 2022

UNDER THE GUIDANCE OF

PROF. SHABANA
 IPR ASSIGNMENT

ACKNOWLEDGEMENT

I would like to express the deepest appreciation and thanks to my respected IPR Faculty Prof.
(Dr.) Shabana, who has the attitude and substance of genius, he continually and convincingly
conveyed a spirit of adventure in regard to research and writing, and an excitement in regard to
teaching. Without his guidance and persistent help this assignment would not have been possible.

I thank the university library for permitting me to include content as part of my assignment and
provided me with concerned material.

Last but not the least I would extend my thanks to my parents and friends who have
been supportive throughout

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TABLE OF CONTENTS

1. INTRODUCTION
2. MEANING AND DEFINITION OF COPYRIGHT
3. CONCEPT OF COPYRIGHT
4. SUBJECT MATTER OF COPYRIGHT
4.1. LITERARY WORK
4.2. DRAMATIC WORK
4.3. MUSICAL WORK
4.4. ARTISTIC WORK
4.5. SOUND RECRODINGS
4.6. CINEMATOGRAPHIC FILMS
5. NATURE OF COPYRIGHT
6. GENESIS
6.1. THE FIRST 'COPYCAT' DISPUTE
6.2. THE ENGLISH CROWN COPYRIGHT—A CHRONICLED DEVELOPMENT
6.3. THE STATIONER'S COMPANY IS BORN — PIRATES PROTECTED BY LAW
6.4. END OF THE LICENSING ERA
7. DEVELOPMENT IN INDIA
7.1. PRE INDEPENDENCE COPYRIGHT LAW IN INDIA
7.2. POST INDEPENDENCE COPYRIGHT LAW IN INDIA
8. INTERNATIONAL LAW ON COPYRIGHTS
8.1. BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC
WORKS.
8.2. UNIVERSAL COPYRIGHT CONVENTION 1952
8.3. INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS,
PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANIZATIONS (ROME
CONVENTION)
8.4. AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY
RIGHTS, 1994 (TRIPS)
8.5. WIPO COPYRIGHT TREATY, 199
8.6. BEIJING TREATY ON AUDIOVISUAL PERFORMANCES, 2012.
9. COCNLUSION

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10. BIBLIOGRAPGY

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1. INTRODUCTION
Copyright law confers upon the owner of the copyrighted work a bundle of exclusive rights in
respect of the reproduction of the work and other acts. The owner of the copyright along has a
sole right in relation to such word and he has the right to exclude all others from reproducing his
work without his permission. If anybody else does any of the acts without the authority of the
owner of the copyright, the owner of the copyright can maintain an action for infringement of his
copyright against the wrongdoer.1

Copyright is considered as an individual personal property in the modern world. It is a legal right
to exclude others, for a fixed time, from copying, selling, performing, displaying or making
derivative versions of a work of authorship. Unauthorized use of a work protected by copyright
is known as the infringement of copyrights. “Copyright can be most simply defined by using its
two root terms. It is the right to control copying”. In Pacific Film Laboratories v. Commissioner
of Tax2 Windeyer J defined copyright as: “It is not a right in an existing thing. It is a negative
right, as it has been called, a power to prevent the making of a physical thing by copying.”

2. MEANING AND DEFINITION OF COPYRIGHT.

According to Black’s Law Dictionary copyright means right to transcript, imitation,
reproduction, to sell, to public, to print copies or original work.3

Section – 14 of the Copyright Act, 1957 give comprehensive definition of the term ‘copyright’,
the section read as under:-

“Copyright means the exclusive right subject to the provisions of this Act, to do or authorise the
doing of any of the following acts in respect of a work or any substantial part thereof
namely............................................”

In short, copyright is not the mere creature but a natural and civil right. Also though presently,
under the existing law, it is a creature of statute, it is an incorporeal property right and is a part of

1
Mrs. Runa Mehta Thakur , “How to Judge the Infringement of copyright : An Analytical study” M.D.U. Law
Journal 2006, 11(2); Pages 135-140.
2
(1970) 121 CLR 154
3
Dr. V. Tayal and M. Tariq. ,”The Emerging Challenges to the legal protection of creativity under copyright law :
An overview” Supreme Court Journal (Apex Court Expression – Reverted – SCJ) 2008, January Pages 17-25.

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intellectual property. It is a right which protects the expression of an idea in a tangible form and
not the idea itself. Copyright mans the exclusive right to copy or reproduce a work in which the
copyright subsists fully or partly, in any material form. Thus, it is a right, which enable the
authors, composers, artists, designers, and producers to control over the reproduction,
communication, distribution and exploitation of such a work in public. Now, it is extended to
creators of computer programmes, also.

It is also stated in section -1 of U.K. Copyright Act, 1956 that copyright means the exclusive
right by virtue and subject to the provisions of the Act to do and to authorise other person to do
certain acts in relation to that work.

3. CONCEPT OF COPYRIGHT
Copyright is an important component of intellectual property. There are certain considerations
and principles, which run through the whole of copyright law. India copyright comes in existence
as soon as a work is created and no formality is required for acquiring copyright. The vesting of
copyright in a work is thus automatic. The procedure for registration is optional and not
mandatory. Registration is only intended to provide a prima facie evidence of the particulars
entered in the register.4 Copyright system performs a number of functions in the society.
5
According to Neil Weinstock, copyright system performs the following functions in a civil
society. i) Production function, ii) Structural function and iii) Development function.

Copyright is considered as an individual personal property in the modern world. It is a legal right
to exclude others, for a fixed time, from copying, selling, performing, displaying or making
derivative versions of a work of authorship. Unauthorized use of a work protected by copyright
is known as the infringement of copyrights. In Pacific Film Laboratories v. Commissioner of
Tax6 Windeyer J defined copyright as: “It is not a right in an existing thing. It is a negative right,
as it has been called, a power to prevent the making of a physical thing by copying.”

The essential elements for grant of copyrights for works are: originality, fixation of idea in a
tangible form and the work should have ‘expression’. Therefore, this provision may be broken

4
The Copyright Act 1957, Section 48
5
Netanel Neil Weinstock, Copyright and Democratic Civil Society,106 The Yale Law Journal (1996) p.283
6
(1970) 121 CLR 154

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down into three basic requirements to achieve copyright protection: (a) the work must be original,
(b) the work must be an expression, rather than an idea and (c) the work must be fixed in tangible
form. Originality is required and involves something other than ingenious and novel material 7 .
The original work is the criteria for the protection under the copyright law. Feist determined that
there was a constitutional requirement of creativity8 . Originality was defined as comprising both
creativity and the absence of copying9 . The copyright vests in original literary, dramatic, musical
and artistic works.

4. SUBJECT MATTER OF COPY RIGHT

Copyright protects the skill and labour employed by the author in the production of his work. In
relation to literary work that skill and labour embraces not only the language originated and used
by the author, but also such skill and labour as he has employed in selection and compilation. 10
Another person may originate another work in the same general form, provided he does so from
his own resources and makes the work he so originates a work of his own resources by his own
labour and industry bestowed upon it. In determining whether there is an infringement where the
subject-matter of the plaintiff’s work is not original, the question is how far an unfair or undue
use has been made of the work ? If a person instead of obtaining the subject-matter from
common sources avails himself of the labour of his predecessor, adopts his arrangements and
quotations, or adopts them with a colourable variation it is an illegitimate use. In the case of
works not original in the proper sense of the term, but composed of, or compiled or prepared
from materials which are open to all, the fact that one man has produced such a work does not
take away from anyone else the right to produce another work of the same kind, and in doing so
to use all the materials open to him.11 The true principle in all these cases is that the defendant is
not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose
of producing his work, that is, in fact, merely to take away the result of another man’s labour or,
in other works, his property.12

7
Julia Reytblat, Is Originality In Copyright Law A "Question Of Law" Or A "Question Of Fact?": The Fact Solution
17 Cardozo Arts & Ent. L.J. 181, 183 (1999)
8
499 U.S. 340 (1991)
9
Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 668 n.6 (7th Cir. 1986).
10
(1980) RPC 193.
11
P. Narayanan , “Law of copyright and Industrial Designs” , 4th edn., Pg 175-176
12
Hogg v. Scott (1874) LR 18 Eqq. 444

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13
In Elanco Products Ltd. v. Mandops (Agrochemical specialists) Ltd., BUCKLEY, LJ, stated
the same test as follows “As I understand the law in this case, the defendants were fully entitled
to make use of any information of a technical or any other kind, which was available to them in
the public domain, for the purpose of compiling their label and their trade literature but they
were not entitled to copy the plaintiff’s label or trade literature thereby making use of the
plaintiff’s kill and judgement and saving themselves the trouble, and very possibly the cost, of
assembling their own researches or from sources available in documents in the public domain
and thereby making their own selection of material to put into that literature and producing their
own label and trade literature”

An analysis of the definition of “Copyright” under section 14 elucidates the subject matter of the
copyright. They subject matter of copyright includes the following:

(a) Literary works,

(b) Dramatic works,

(c) Musical works,

(d) Artistic works,

(e) Cinematograph films, and

(f) Sound recordings

4.1. LITERARY WORK

Literary work includes all those works, which are in print or written form. It also includes
computer programs, software and databases. For instance, novels, stories, poems, poetry, prose,
lyrics are considered as literary work. The above works in the written or printed form would
form the subject matter of copyrights. On the same lines, computer programs and software are
considered as literary work in electronic form. Besides, databases and compilations consisting of
compiled or gathered literary work in a systematic and rational way are also considered as
literary works. It is the product of the labour, skill and capital expended by an author on his work
that is protected and not the elements or raw material used in the work. To secure copyright for
the product it is necessary that

13
(1979) FSR46.

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labour, skill and capital should be expended sufficiently to impart to the product some quality or
character which the raw material did not possess, and which differentiates the product from the
raw material. What is the precise amount of knowledge, labour, judgment or literary skill or taste
which the author of any book or other compilation must bestow upon its composition in order to
acquire copyright in it cannot be defined in precise terms. It must depend largely on the special
facts of each case, and is very much a question of degree. The quantum of skill, judgment and
labour required is not very high since copyright has been recognised in such works as trade
catalogues and street directories. Further, a literary work need not have any literary quality. Even
so prosaic a work as an index of railway stations or a railway guide or a list of stock exchange
quotations, qualifies as a literary work. In determining whether a work is entitled to copyright
protection a rough practical test is: “What is worth copying is prima facie worth protecting.

4.2. DRAMATIC WORK

The work of the dramaticians14, stage players, actors work in movies, serials and such other
television or movie related works are considered as dramatic works. Dramatic work includes
plays, recitations, dumb charades etc.15These dramatic works individually can be protected in the
name of the dramaticians. If these dramatic works are produced by a producer the producer
would have the copyright over the dramatic work or works collectively. Copyright subsists in
original dramatic work and its adaptation. Adaptation in relation to dramatic work means:

1. The conversion of the work into a non-drama tic work,

2. The abridgement of the work or any version of the work in which the story or action is
conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or
in a newspaper, magazine or periodical.

Further, “Choreography” which is the art of arranging or designing of ballet or stage dance in
symbolic language is a form of dramatic work. In order to qualify for copyright protection
choreography must be reduced to writing usually in the form of some notation and notes. Scenic
arrangement or acting form must be fixed in writing or otherwise. Representation of scenic
effects in drawings can also be considered as artistic works, costumes used by actors if
represented in the

14
Section 14, Copyright Act,1957
15
Sreenivasulu NS and Nagaratna. A, “An overview of Copyright Law in India,” December 2007, MIPR, Vol 3, Pt
4, p 158.

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form of drawings can be treated as artistic works. A dramatic work does not include a
cinematograph film because it is a separate subject matter for copyright. Gags which are an
actors’ interpolation in a dramatic dialogue are not the subject matter of copyright as they are
changed from time to time and are not a permanent part of the play. The elements of a ballet are
the music, the story, the choreography, the scenery, and the costumes. It is a composite work and
could be the subject matter of copyright.

4.3. MUSICAL WORK

Scoring of original music for a movie, stage show, serial or any programs for that matter come
under musical work which is a subject matter of copyright. Musical work includes graphical
notations and other works of music3 including any graphical notation of such work, but does not
include any word or any action, intended to be sung or spoken or performed with the music. An
original adaptation4 of a musical work is also entitled to copyright. In popular music there are
many arrangements of original songs made to suit a particular performer or a particular language
version of the text. Each such adaptation or arrangement is a musical work provided there is a
sufficient element of intellectual creation. If a musical arranger so decorates, develops, transfers
to a different medium or otherwise changes the simple music of a popular song as to make his
arrangement fall within the description of an original musical work, such arrangement or
adaptation is capable of attracting an independent copyright. There is no need for the ideas
embodied in the arrangement to be novel. When a person makes a piano forte score of the music
of another’s opera, he will be the author of a new composition. Similarly if a person puts new
words in a non-copyright melody or song it may constitute a new composition. “Transcription”
in relation to music is defined as “an arrangement of a musical composition for some instrument
or voice other than the original.

4.4. ARTISTIC WORK

Artistic work includes the diagrams, maps, painting, sketches, sculpture, drawings, architectural
works, models of sculptures and designs of buildings, dams, bridges and other constructions.
Artistic work means: (i) 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;

(ii) A work of architecture, and

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(iii) Any other work of artistic craftsmanship. Adaptation of an artistic work means the
conversion of the work into a dramatic work by way of performance in public or otherwise.

Work of sculpture includes casts and models. Essentially an artistic work is concerned with
visual image. As in the case of other works, to qualify for copyright protection an artistic work
must be original, i.e., that it must originate from the author. In respect of painting, sculpture,
drawing, engraving or photograph the work need not possess any artistic quality but the author
must have bestowed skill, judgment and effort upon the work. The skill, judgment and effort
required is minimal e.g., a simple drawing of a human hand showing voters where to mark their
cross on a voting paper was held entitled to protection. Protection has been given to the
arrangement of a few decorative lines on a parcel label and three concentric circles drawn to
precise measurements as a plan for technical device. A poster used in advertisement is an artistic
work. The written matter in the advertisement may be considered as literary work. But
advertisement slogans consisting of a few words only are not copyright matter. Commercial
furniture is not artistic work. Get up, arrangement and colour scheme of labels used as
trademarks or decoration of the containers of goods may constitute works of artistic
craftsmanship and subject matter of copyright protection. Such labels may also be considered as
drawings or engraving. However copyright does not subsist in mechanically reproduced labels
and cartons because no skill or label is involved in the production of such labels or cartons.
Copyright can be claimed only in the original artistic work produced by a natural person by the
expenditure of his personal skill and labour.

4.5. SOUND RECORDINGS

Sound recording includes16 all forms of recordings of sounds. For instance sound of playing a
musical instrument either in connection with any event, work or program or otherwise. Creation
and making of any sound either for any event, work or program or otherwise would also come in
the category of works of sound recordings. Copyright subsists17 in a sound recording which
means a recording of sounds from which such sounds may be produced regardless of the medium
on which such recording is made or the method by which the sounds are reproduced. If the
recording includes material which is an infringement of any literary, dramatic or musical work,
copyright will not subsist in the sound recording. The right of sound recording is different from
the subject

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16
Id.
17
Id.

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matter recorded as they are subjects of independent copyrights. The author of the sound
recording is the producer. The copyright in the recording of music is separate from the copyright
in the music18. Copyright in the music vests in the composer and the copyright in the music
recorded vests in the producer of the sound recording. Where the song has not been written down
and the composer who is also the performer records the song two copyrights come into existence
simultaneously, one for the music and one for the sound recording. The issue of a record
recording a literary, dramatic or musical work does not amount to publication of the work
recorded, although it is publication of the sound recording. No person can publish a video film or
video cassette or sound recording unless the name and address of the owner of copyright in the
work, name and address of the person who made the film or the sound recording after obtaining
necessary licenses and the copy of the certificate issued by the Board of Film Certification and
the year of publication4 is mentioned and declared.

4.6. CINEMATOGRAPHIC FILMS

Cinematograph film” means any work of visual recording 19 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. Cinematographic films includes visual recordings, video films television serials, satellite
programs and such other recorded and live visual moments. Perhaps, cinematographic works put
all the other forms of literary works such as literarily, artistic, dramatic, and musical and sound
recording together. As producing a cinematographic works needs a story (literary work)
performance of actors (dramatic work) scoring of music (musical work) creation of sets and back
ground images (artistic works) and background scoring and recording (sound recording). These
subject matters will get the copyright protection provided there is presence of the element of
“originality”. Hence, it should not be a work which is copied from other works. A cinematograph
film is a work capable of acquiring copyright1 and the author of the cinematograph film is the
producer. “Under Indian law video films are deemed to be work produced by a process
analogous to cinematography. A cinematograph film is a film which by rapid projection through
an apparatus called cinematograph

19
Supra Note 14 at , p 79.

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produces the illusion of motion on a screen of many photographs taken successively on a long
film. Copyright protection is available only to the cinematograph film including the sound track.
The cine artists who act in the film are not protected by copyright law for their acting. According
to the language of the section 38 of the Act the actors and performers in the film are conferred
certain special rights called performers’ rights. A cinematograph film may be taken of a live
performance like sport events, public functions, or dramatic or musical performance or it may be
based on the cinematograph version of a literary or dramatic work. In the latter case if the
corresponding literary or dramatic work is copyrighted the making of the film will require the
consent or license of the owner of the copyright in the literary or dramatic work since such
copyright includes the right to make a cinematograph film. Similarly if the film has a sound track
recording music the producer will have to obtain the consent of the verse writer and the song
writer if copyright subsists in them. 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 under section 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 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 owner of the

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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.

5. NATURE OF COPYRIGHT
Copyright is a bundle of rights, which confers a negative right on the part of the registered owner
to exclude all the others from using and exploiting his work. Copyright confers exclusive right to
use and exploit the copyrighted work devoid of all the others. In C Cunniah and Co v Balraj and
Co20 the term “copy” has been defined as that which comes so nearer to the original as to suggest
itself as an original to the mind of every person seeing it.: According to Salmond, the term
“Right” implies “legally protected interest“ 21. Salmond’s version of rights seems to recognize
Copyright as one in the species of rights and regards it as a form of “Right over incorporeal
property”. The law does not permit one to appropriate to him what has been produced by the
labour, skill and capital of another. This is the very foundation of copyright law. The object of
copyright law is to protect the author of the copyright work from an unlawful reproduction or
exploitation of his work by others. Copyright protection is essential to encourage exploitation of
copyright work for the benefit of the public. Works in literary, scientific and artistic domain are
evidently both the creation and the expression of the culture of a society. These expressions are
the reflections of the norms and values a society lives by and of the activities, aspirations and
achievements of its people in various fields. Their significance is two folds; they are significant
culturally and as well economically. The cultural significance of copyright and related rights lies
in the extent to which they spur creation of such works and bring them to the public. Their
economic significance lies in their ability to contribute to the national economy, through the
industries, which are essentially based on products /activities in which copyright subsists, e.g.
publishing, music, films, and computer software. The cultural significance of creative works is
self evident from the way they enrich the lives of the people, empower them, entertain them,
uplift their mood, become a vehicle of emotional catharsis and give a meaning and substance to
life. Copyright protection is considered economically significant in the spear of
commercialization of the creative works. Essentially the copyright laws offer protection to the
works of creative and artistic value and significance. The industrial advancement of today made
replication of copyrighted works much easier than before

20
AIR 1961 Mad 111
21
Supra Note 14 at, p 76

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paving way for the acts of piracy. Entertainment industries today are suffering with the menace
of piracy which has become a common phenomenon due to the easy copying of audio or video
cassettes/records. Advent of Internet technology1 has also made copying and hacking of
information much simpler, which a person can do sitting at one place. Hence, there is a great
need of protecting the information, which forms to be a part of Copyright, whether they are on
the Internet or in a material form. Copyright Law of today apart from protecting the subject
matters, which are in traditional form, also aims at protecting the subject matters which are in no-
traditional form such as on the internet. The exploitation of the creative work is done by the
entrepreneurs like publishers, film producers or sound recording producers to whom the owner of
copyright assigns or licenses the particular rights. If the entrepreneur is to recover the capital
invested and earn profits he has to be protected from unauthorized reproduction otherwise a
pirate would reproduce the work at a fraction of the original cost of production and undersell the
producer. In the case of especially sound recordings and cinematograph films a pirate could ruin
the producer by his piracy. Without legal protection for a certain period no entrepreneur will
undertake publication of books or production of sound recordings or films since it involves lot of
efforts and huge investment. In the ancient times creative writers, musicians and artists wrote,
composed or made their works mainly for fame and recognition rather than to earn a living or
make profits. Copying was a laborious and expensive process at that time.

The importance of copyright protection was recognized only after the invention of the printing
press in the 15th century which enabled the reproduction of books in large numbers practicable.
Law of Copyright protection intends to encourage the creators/ owners of original works, in
which copyright subsists. Grant of copyright indicates grant of exclusive right to the owner to
use his work for a prescribed period, after the expiry of which it becomes a public property. Thus
Copyright law should also protect the interest of the public at large, and hence its grant to one
should not hamper the interest of the other faculty. Thus the Copyright Law aims at bringing in a
balance between the two conflicting interests, one of author/owner and the other of public at
large. Further copyright system also helps the owner to get the monetary considerations, which
he can gain by licensing or assigning his rights to others. The Committee Report, accompanying
the 1909 Copyright Act of UK observed that “the enactment of Copyright legislation is not based
upon any natural right that the author has in his writing but upon the ground that the welfare of
the public will be served and progress of science and useful arts will be promoted by securing to
authors for

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limited periods the exclusive rights to their writings.”22The US constitution also echoes the
similar content and substance. The above observation is perhaps based on certain logic that
promotion of copyright for private individuals would encourage many individuals to come out
with new creative works which would ultimately benefit the public domain. In Donoghue v
Allied Newspaper Ltd, 23it was viewed that the basic premise of the copyright is that copyright
protection covers only the expression of ideas and not ideas themselves. Only those subject
matters, which are expressed in some physical form, are entitled to get copyright protection.
Hence, the principle of law is that no copyright can be given for ideas. Not only the creative
works produced in India but as well foreign works are also protected in India. Copyrights of the
member states nations, which are members to the Berne Convention, Universal Copyright
Convention and the TRIPS Agreement, are also protected in India, as India is also a member to
all the said international instruments on intellectual property rights and in particular copyrights.
The law relating to copyright has been shaped largely with the influence of the international
norms and treaties which have been ratified and implemented by the member states. These
international norms provide for the much required guidelines to the member nations to formulate
means for the protection and regulation of copyrights at domestic and as well at international
level.

6. GENESIS
When the copyright law came out formally, it was only with the forward technological leap with
the invention of the printing press. Since Gutenberg's invention of the Printing Press, a classic
invention of the bygone era, mankind has entered into a much higher form of technology marked
by the advent of personal computers. Indeed, a lot of water has flown beneath the bridges since
then. The law of copyright which commenced with the protection of literary property has
witnessed rapid strides in technological developments and with the changing socioeconomic
dynamics of the society, the worth and value of information as a 'knowledge commodity' and the
societal outlook towards it has witnessed a progressive change. However, few would be aware of
the startling facts which led to the emergence of copyright as a discipline of law. Without
revealing the suspense or

22
Sheldon W Halpern, David E Shipley and Howard B Abrams, Copyright - Cases and Materials, 1992, American
Casebook Series, West Publishing Co., P. No. 2.
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23
(1937) 3 Ch D 503

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the substance, let us odyssey in exploring the historical origins of this law and discover a
historical road which is less travelled by.

6.1. The First 'copycat' Dispute

It may be interesting to note that one of the earliest known disputes in relation to matters
concerning reprographic tactics and copyright is as old as the fourth century24 which was
adjudicated upon by the High King of Ireland. It was in the King Diarmed's royal court that a
dispute between St. Abbot Finnian and his former pupil St. Columba was agreed to be decided
upon by the parties.

The facts of the matter reveal that St. Columba had fraudulently copied the work owned by St.
Finnian and made unauthorised copies to distribute it for free to the local churches. King
Diarmed saw the book as Finnian's property, the ownership of which entitled Finnian to its
product, the copy. The king concluded that both the original and the copy belonged to Finnian
observing, "To every cow her calf, and accordingly to every book its copy."25 Columba was fined
40 head of cattle for making an unauthorised copy. The king's ruling thus pointed in the direction
of the future development of copyright law.

6.2. The English Crown Copyright—A Chronicled Development

When Gutenberg's invention reached England, the then King Richard III, in 1483, lifted any
restriction on foreigners importing manuscripts and books into England and printing them there.
As a result there was a proliferation of books as foreigners enjoyed a royal 'license'. Due to all
these developments England surfaced as a major printing centre throughout the length and
breadth of Europe.

In 1529, the then King of Britain, Henry VIII constituted a 'system of privileges' for the printing
of books as a result of which the printing business became a monopoly of the Crown. It was
around that time in 153319 that the King prohibited importation of books placing it on the lame
justification that England boasted of a number of publishers, printers and bookbinders and hence
there was no requirement of importation‘.

24
So Sayeth Soup: The Death of Copyright at http://www.macedition.com/soup/soup _ 20000627a.shtml
25
Philip Wittenberg, The Protection of Literary Property, 7, Rev, Edn., 1978

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6.3. The Stationer's Company is Born — Pirates protected by Law

In 1556, during the reign of Henry VIII of England stationer's guild comprising of 97 London
publishers was constituted into a company known as the Stationer's Company. This company,
more specifically, the registered members of the company, had the sole and an exclusive right to
reprint works in perpetuity and in the name of some particular member of that company, who
forever after had the sole right to publish that work. These registered members of the
Shakespearian era had the monopolistic right of not only printing but publishing books i.e., sell
copies to the public.

It was more in the nature of a license than a right. Company membership consisted of printers,
bookbinders, booksellers, suppliers of paper, and a few others associated with the book trade, but
did not include authors. In some cases 'printers' doubled up as 'booksellers', and were in that
sense forerunners of modern publishers.

It was the Licensing Act of 1662, which established a register of licensed books, along with the
requirement to deposit a copy of the book to be licensed. Deposit was administered by the
Stationers' Company who were given powers to seize books suspected of containing matters
hostile to the Church or Government. It has been understood that the Licensing Act of 1662 was
the first Act in checking piracy. The licensing Act was a legal instrument of masking the
intention of the nobility and the church to exercise control over the populace by preventing such
works to be published which would 'cause' or have a tendency to cause the loss of confidence in
the authority of the church which was already losing much of its power due to internal politics
and spread of culture leading to the artistic, philosophical, scientific and technological
improvements of the Renaissance era.

In effect, the licensing act limited the scope of piracy by conferring the right to indulge in 'acts of
piracy' to the Stationer's guild and imposing punitive sanctions on those who indulged in the
printing and selling business apart from the statutorily protected stationer's men.

6.4. End of the Licensing Era

By 1681, the Licensing Act, 1662 had been repealed and the Stationers' Company had passed a
by-law that established rights of ownership for books registered to a number of its members so as
to continue regulating the printing trade themselves.

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It has also been said that John Locke was the first to recommend that the bookseller's property be
limited, either to a fixed term defined from the date of printing, or to a certain number of years
after the death of the author.26 The Stationer's also took the plea in their bid to renew the
licensing act that "if their Property should not be provided for,... [the booksellers' livelihood] will
be utterly ruined."

After failing to persuade Parliament to extend its powers, the Stationers shifted their legislative
strategy, emphasising the interests of authors over publishers. The product of their renewed
effort was the world's first copyright Act, the Statute of Anne, entitled "An Act for the
Encouragement of Learning, by vesting the Copies of Printed Books in the Authors for the
Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or
27
Purchasers of such Copies, during the Times therein mentioned. It was this law which is
referred to as the Statute of Anne named after the then ruling Queen of England, Anne.

Thus it is observed that the origins of copyright law were influenced by the economics of
publication rather than economics of authorship and there is not an idea of doubt that the origin
of copyright much before the coming of Statute of Anne was not for the "encouragement of
learning" but discouragement of "learning" such 'knowledge' which went against the church or
the government by regulating the print and exercising rules of censorship

7. DEVELOPMENT IN INDIA
The development of Copyright Law in India can been seen in the following two phases:-

7.1. PRE INDEPENDENCE COPYRIGHT LAW IN INDIA

From 1847 to 2015 the history of Copyright Law in India spans for about 168 years. Copyright
first entered India in 1847. 28Through an enactment by British, during the East India Company's
regime. At the time of its introduction in India, copyright law had already been under
development in Britain for over a century and the provisions of the 1847 enactment reflected the
learning from deliberations during this period. According to the 1847 enactment, the term of
copyright was for

26
Rosemary J. Coombe, Challenging Paternity: Histories of Copyright, 6 Yale J L & Human 397 (402).
27
Paul Goldstein, International Copyright Principles, Law and Practice, p.5, section 1.1, Oxford University Press,
2001
28
The Copyright Act of 1847 (India); passed by the British Parliament, in the name of Queen of Britain. It was
enacted mainly for the protection of East India Company's copyright interests

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the lifetime of the author plus seven years; but in no case could the total term of copyright
exceed a period of forty-two years. 29

Issues relating to copyright have been subject matter of international discussion which has been
regulated by various Conventions. The Berne Convention for Protection of Literary and Artistic
Works, which is an international copyright treaty was first adopted at Bern, Switzerland on
September 9, 1886 and was signed for India° on April 1, 1928. It required its member nations to
provide certain exclusive rights to the authors of Literary and Artistic works such as right to
make reproduction, communication to the public, translation and adaptation.

The Berlin Act was passed in 1908 to revise the Berne Convention has to provide additional
protection to authors due to the new technologies like photography, sound recordings and
cinematography. The convention afforded authors even more power over their works by
emphasizing their rights of exclusivity over their works. Authors could authorize how their
works were to be published and used.

The Copyright Act of 1914 was the first 'modern' copyright legislation in India. Ironically it was
a complete 'copy' of the English Copyright Act of 1911 with suitable modifications to make it
applicable to the then British India. This Act continued to protect Copyright even after a decade
of attainment of Independence by India.

7.2. POST INDEPENDENCE COPYRIGHT LAW IN INDIA

The Copyright Act of 1957 came into force on the 21st of January, 1958. This was the first
Copyright Law of the Independent India. The Act besides consolidating and amending the law
relating to Copyright, also introduced a number of changes and new provisions such as
provisions for setting of a copyright office under the control of the Registrar of Copyright for the
purpose of registration of books and other works of art, and establishment of a Copyright Board
to deal with certain kinds of disputes pertaining to copyright.

This Act was brought to give effect to the Berne Convention and UCC, providing for grant of
compulsory licenses for translation and reproduction of works of foreign origin required for the
purposes of teaching, scholarship or research, to make such foreign works freely available for

29
The Indian Copyright Act, 1847 (Act XX of 1847).

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publication and ensure their availability at reasonable prices. 30 Further, Provisions were made for
publication of unpublished works where the author is either dead or unknown; the Copyright
Board was empowered to settle disputes and Copyright was extended to the lectures made in
public.

Finally, Copyright: (Amendment) Act, 1999 was passed to bring Indian Law in compliance with
the TRIPS Agreement, thereby providing Commercial Rental rights for software; increasing
duration of performers rights from 25 to 50 years; power to the government to make broadcasting
and performers rights applicable to some companies in other countries and to restrict foreign
broadcasters and performers and introduction of inter-operability fair use provision for
softwares.31

8. INTERNATION LAW ON COPYRIGHTS

The following are some of the important conventions/treaties/agreement which contributed to the
evolution of the copyright law and other related concepts.

 Berne Convention 1886

 Universal Copyright Convention
 Paris Convention.
 Trade Related Intellectual Property Rights Agreement
 World Copyright Treaty
 World Performer’s and Phonograms Treaty.

8.1. Berne Convention for the Protection of Literary and Artistic Works.

This convention is commonly known as the Berne Convention. It is the oldest international
treaty in the field of copyrights. The need for a uniform system led to the formulation and
adoption on September 9, 1886 of the Berne Convention for the protection of literary and
artistic works. It is open to all States . This convention is based on three basic principles

a. The Principle of National Treatment: It means that each member country of Berne
Convention must treat the works of other member countries of Convention equally with
the treatment provided to the works of nationals. Otherwise, there should not be any
discrimination in the treatment of works and protection should be accorded equally. This

30
The Copyright (Amendment) Act, 1983 (Act 23 of 1983).

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31
The Copyright (Amendment) Act, 1999 (Act 49 of 1999).

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helps a nation with a low level protection getting better protection abroad than it can get
at home. The national will eventually bring pressure to bear on the authorities of his
country for better protection.
b. Automatic Protection: Under Berne Convention, no formalities are required as
preconditions to protection. The works created protection even without following the
formalities of registration. In other words, member countries do not require their authors
and publishers to give notice of the copyrighted status of the work in order for the work
to be protected by law
c. Independence of Protection: Enjoyment and exercise of the rights granted is independent
of the existence of protection in the country of origin of the work. International copyright
protection is independent of the existence or extent of the protection afforded by the
country where the work originates. Protection in each member state is governed by that
state’s own domestic law. By becoming a signatory to the Convention, in any of its
versions, a country guarantees to enact laws that effectuate these goals.
8.2. Universal Copyright Convention 1952

The Universal Copyright Convention came into force in the year 1952 on September 6 and it was
revised in 1971 at Paris. The UCC has 21 articles originally and been amended later. Initially it
was having membership of 12 member countries including India. Though the Universal
Copyright Convention is independent of the operation of the Berne Convention, if a conflict
arises between the two conventions, then the terms of the Berne Convention will apply. The
Convention argues that Contracting State undertakes to provide for the adequate and effective,
protection of the rights of authors and other copyright proprietors in literary, scientific and
artistic works, including writings, musical, dramatic and cinematographic works, and paintings,
engravings and sculpture. The UCC unlike the Berne Convention permits it member States to
impose formalities such as notice, registration and deposit as a condition to protection, but in the
case of works first published outside the national territory and authored by a non-national,
Article III (1) provides that the State must regard its formal requirements as satisfied if, from the
time of publication, all copies of the work published with the copyright owner’s authority bear a
prescribed copyright notice.

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Article IV of the Universal Copyright Convention prescribes a minimum copyright term well
below the Berne minimum, measured by the life of the author plus twenty five years. 32 or, if the
protecting country does not compute the copyright term on the basis of the author’s life , twenty
33
five years from publication or registration of the work. In the case of photographic works or
works of applied art, the term of protection shall not be less than ten years or each of said classes
of works.34 Article II of UCC provides for ‘national treatment’ obligation i.e the contracting
States must treat qualifying works no less favourable than they treat the works of their own
nationals. Additionally they must give “adequate and effective” protection to these works and
also grant four exclusive rights that is reproduction rights by any means, public performance,
broadcast35 and translation rights. 36
With regard to reproduction, performance and broadcast
rights, national legislation may create exceptions for these rights that do not conflict with the
spirit and provisions of this convention.37 As per the compromise reached in 1971, developing
countries may subject the reproduction and translation rights to compulsory licenses in
prescribed circumstances.38 One notable feature is that it contains a ‘Berne safeguard clause’
which prohibits a Berne Convention country from denouncing Berne Convention and relying on
39
the UCC in its copyright relations with members of the Berne Convention. The UCC was
revised in Paris in 1971 in response to demands made by the developing countries. It has special
provisions that allow the developing countries to obtain compulsory licenses under certain
conditions to translate copyrighted works for teaching, scholarship and research purposes. It also
allows reproduction of copyrighted works for use in systematic instructional activities. The UCC
protects the economic rights of the authors effectively. India is a member of UCC.

8.3. International Convention for the Protection of Performers, Producers of Phonograms

and Broadcasting Organizations (Rome Convention)

The Rome Convention took place in the year 1961 on October 26th but came into force on May
18th, 1964. It aims to protect neighboring rights. The scope of the Convention is as below:

32
Universal Copyright Convention, 1971 Paris Text, Art . IV (2) (a)
33
Universal Copyright Convention, 1971 Paris Text, Art . IV (2) (a)
34
Universal Copyright Convention , 1971 Paris Text , Art IV (3)
35
Universal Copyright Convention, 1971 Paris Text, Art IV bis (1)
36
Universal Copyright Convention , 1971 Paris Text , Art V (1)
37
Universal Copyright Convention, 1971 Paris Text , Art IV bis (2)
38
Universal Copyright Convention, 1971 Paris Text, Art . vter , vquater
39
Universal Copyright Convention, 1971 Paris Text, Appendix Declaration Relation to Article XVII.

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 It deals with rights of performers such as dancers, magicians, acrobats and jugglers.
 Producers of phonograms (sound recording)
 Broadcasting organizations and broadcasters.

Therefore the beneficiaries of the convention are performers, producers of phonograms, and
broadcasters. The convention grants protection to performers if their performance takes place in
another contracting state, if incorporated in a phonogram that is protected by the convention. If
not fixed on a phonogram, and is carried by a broadcast, the convention protects such broadcast
also. Further the performers are protected against the unauthorized broadcast of their public
performances and enjoy the rights to a first fixation of their performance. Similarly, producers of
phonograms enjoy the right to authorize or prohibit direct or indirect reproduction of their
programs in the form of phonograms. Any user of such phonogram has a duty to pay single
remuneration equitable in nature to artists or producers for a public performance of a phonogram.
Regarding the broadcasting rights the broadcasting organizations shall enjoy the right to fixation,
reproduction and rebroadcast of their broadcasts, subject to any limitations imposed under the
domestic law. The protection is granted for a 20 year term, computed from the end of the year
when the fixation was made for phonogram and performances incorporated therein. If the
performance is not incorporated in a phonogram, the term will be calculated from the end of the
year when the performance took place. For broadcasts, the year when the broadcast took place
will determine the duration of protection.

8.4. Agreement on Trade Related Aspects of Intellectual Property Rights, 1994 (TRIPS)

This agreement is one of the most important international trade agreements. The pre-TRIPS
witnessed the world dividing into groups of nations, following a wide range of standards in
intellectual property rights. These variations were impediments for growth of international trade
in goods and services particularly in the area of legal diffusion of knowledge. The nations felt the
need for a world-body to regulate the international trade and an agreement establishing the
World Trade Organization (WTO) was concluded at Marakkesh on April 15, 1994, and it came
into force on 1st January 1995. Under the auspices of the General Agreement on Tariffs and
Trade (GATT) the agreement culminated in the eight-year Uruguay Round Negotiations. One
agreement of WTO is the TRIPS agreement that sets minimum standards for regulating many
forms of intellectual property and is binding on all the members of the WTO which means, it
requires the member

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nations to establish a minimum level of intellectual property protection in their national laws.
Failure to comply with these minimum requirements will expose the defaulting states to the
enforcement provisions of the WTO.

The TRIPS Agreement is divided into seven parts .

Part I is entitled "General provisions and basic principles". It consists of eight Articles (Articles
1-8) which determine how the basic principles of trading systems and other intellectual property
agreements should be applied vis-a-vis TRIPS.

Part II is entitled "Standards concerning the availability, scope and use of IPRS". It divides the IP
into seven heads and determines the standards to give protection to each kind of IP. This part is
divided into eight sections which consist of 32 Articles (Articles 9-40).

Part III is entitled "Enforcement of IPRS". It consists of five sections namely, General
obligations; Civil and administrative procedures and remedies; Provisional measures; Special
requirements related to border measures; and Criminal procedures. This part consists of 21
Articles (Articles 41-61). Each section is presented separately.

Part IV of TRIPS Agreement is entitled, "Acquisition and maintenance of IPRS and related inter-
partes procedures". It consists of only one Article (Article 62). It establishes principles that
should ensure that formalities and procedures concerning the acquisition and maintenance of
IPRS existing in a Member are reasonable and that final administrative decisions in a Member
are generally subject to review by a judicial or a quasi -judicial authority.

Part V of TRIPS Agreement is entitled "Dispute prevention and settlement". It consists of two
Articles (Article 63 and 64). It provides for transparency of laws and procedure for settlement of
disputes between members of WTO.

Part VI entitled "Transitional Arrangements" consists of three Articles (Articles 65-67). It

determines the dates by which members are obliged to apply the provisions of the TRIPS
Agreement. It also establishes the obligation of developed country members to provide, on
request and on mutually agreed terms and conditions, technical and financial cooperation in
favour of developing and least developed country members.

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Part VII entitled "Institutional Arrangements Final Provisions," consists of six Articles (Articles
68-73). They deal inter alia , with the task of the council for TRIPS, obligation on member States
to cooperate to eliminate international trade in infringing goods, provision for review and
amendment of TRIPS etc.

8.5. WIPO Copyright Treaty, 199

The WCT is closely connected to the 1971 Paris Act of the Berne Convention. The WCT
obligates the contracting parties to comply with Articles 1 to 21 and the Appendix of the Berne
Convention. Article 1 of the WCT states that it is a "special agreement within the meaning of
Article 20 of the Paris Act, and that nothing in the Treaty is to derogate from the contracting
parties existing obligations under the Berne Convention".

The WCT expands on three aspects of protectable subject matter under the 1971 Berne
Convention Paris Act that had assumed significance in the contemporary digital environment:

1. Computer programmes are protectable as literary works within the meaning of Article 2 of the
Berne Convention Paris Act. 40

2. Compilations of data or other material "which by reason of the selection or by arrangement of

their contents constitute intellectual creations, are protected as such"41

3. Copyright protection extends to expressions and not to ideas, procedures, methods of

operation or mathematical concepts as such.42

The WCT provides for certain new rights also:

1. It provides for right of distribution for authors of literary and artistic works. 43 Under the Berne
Convention, such a right was granted explicitly only in respect of cinematographic work.

2. It provides a qualified exclusive right of authorizing commercial rental 44 to the public in

respect of computer programs, cinematographic works and works embodied in phonograms of
the

40
WIPO Copyright Treaty, 1996, Art. 4.
41
WIPO Copyright Treaty, 1996, Art. 5.
42
Id.
43
WIPO Copyright Treaty, 1996, Art. 6.
44
WIPO Copyright Treaty, 1996, Art 7.

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45
originals or copies of their work in order to strengthen the right of reproduction of authors. .
Authors of literary and artistic works shall enjoy the exclusive right of authorizing any
communication to the public of their works, by wire or wireless means, including the making
available to the public of their works in such a way that members of the public may access these
works from a place and at a time individually chosen by them. 46

8.7.Beijing treaty on Audiovisual Performances, 2012.

It aims to protect the rights of performers in their audiovisual performances in a manner as

effective and uniformly as possible. This treaty came into existence because the WPPT does not
extend protection to performers in respect of their performances fixed in audio-visual fixation.
The treaty grants performers rights both for the offline and online exploitation of their
performances. The distribution or rental of their performances for instance DVD’s- by making
them available on internet. These rights allow performers to be fairly remunerated when their
performances are used. It also recognizes performer’s moral rights like the right to be identified,
the right to object to distortions of the performance. The performers from countries ratifying or
acceding the treaty will enjoy the minimum level of protection granted by the treaty in addition
to the national treatment that is their performances will also be protected when exploited by other
contracting parties.

9. CONCLUSION

Copyright law was conceived in order to encourage the development and distribution of works of
authorship. It accomplishes this by giving authors certain exclusive rights to their works,
including the right to authorize others to exercise those rights. If such protection were absent,
neither the authorship nor distribution would cease but unauthorized reproduction and
distribution would be so easily accomplished that the quantity and diversity of creative activity
would be inhibited.

The copyright law deals with the rights of intellectual creativity. This area of intellectual
property is particularly concerned about protection, creativity and ingenuity. It is an important
area of intellectual property because it is one of the means of promoting, enriching and
disseminating the national cultural, heritage. A country‘s development depends to a very great
extent on the creativity of its people and encouragement of individual creativity and its
dissemination is a Sine qua non

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45
WIPO Copyright Treaty, 1996, Art 8.
46
WIPO Copyright Treaty, 1996, Art. 10.

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for progress. The law of copyright affords maximum protection to authors. It encourages the
researches of learned men. It secures to them proprietary rights in their own works.

Evolution of the concept of copyright has been co-relative to evolution of technology. Piracy is
found to be co-extensive with advancement of technology. From the jurisprudential point of
view, it may be rightly said that a co-jural relationship between piracy on the one hand and
advancement of technology on the other hand exists, that is to say, more the technical
advancement more the Piracy

10.BIBLIOGRAPHY
BOOKS

 Sheldon W Halpern, David E Shipley and Howard B Abrams, Copyright - Cases and
Materials, 1992, American Casebook Series, West Publishing Co., P. No. 2
 Sreenivasulu NS and Nagaratna. A, “An overview of Copyright Law in India,” December
2007, MIPR, Vol 3, Pt 4,
 Ahuja, V.K., ―Law of Copyright and Neighboring Rights : National and International
Perspectives”, LexisNexis Butterworths, 2010.
 Chawla, Alka, ―Copyright and Related Rights: Nationals & Internationals Perspectives,
Macmillan, New Delhi, 2007.
 Sam Rictetson, ―The Berne Convention for the Protection of Literary and Artistic
Works1987

ARTICLES & RESEARCH PAPERS

 Mrs. Runa Mehta Thakur , “How to Judge the Infringement of copyright : An

Analytical study” M.D.U. Law Journal 2006, 11(2);
 Dr. V. Tayal and M. Tariq. ,”The Emerging Challenges to the legal protection of
creativity under copyright law : An overview” Supreme Court Journal (Apex Court
Expression – Reverted – SCJ) 2008

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 Netanel Neil Weinstock, Copyright and Democratic Civil Society,106 The Yale Law
Journal (1996)
 Julia Reytblat, Is Originality In Copyright Law A "Question Of Law" Or A "Question
Of Fact?": The Fact Solution 17 Cardozo Arts & Ent. L.J
 Ashwani Kr. Bansal, Public Interest inIntellectual Property Laws, (55) JILI 466 (2013)
 Daniel J. Gervais, ―The Internationalization of Intellectual Property: New
Challenges from the Very Old and Very New‖ 12 Fordham Intell. Prop. Media & Ent.
L.J. 929 (2002)

LEGAL DATABASES

 Heinonline
 Scconline
 Jstor
 Lexis Nexis Advance
 Oxford Scholarship Online

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