IPR 2022 Copyright

COPYRIGHT
Copyright grants exclusive rights to the creators to control the copying and some
other forms of exploitation of copyright material.
2 Doctrines to test copyright protection
Sweat of Brow Doctrine: An Author gets protection over his work if he has put
simple diligence in the creation of the work, Substantial Creativity or originality
is not required. Example. Creator of a database or telephone directory. There is
nothing creative but it requires time hard work and expense in creating a
telephone directory.
Modicum of Creativity Doctrine: According to this doctrine for getting
protection there should be a minimum level of creativity, this totally negates
the Sweat of Brow Doctrine.
Protects the expression of Idea not the idea itself - R.G.Anand v. Delux Films (1978)
Copyright protection is given as soon as the work comes into existence. Copyright
material should be Tangible which means it should be written/printed on a paper, cd,
hard disk etc.

What could be protected under Copyright?

• Typographic works
• Literary works
• Dramatic works Copyright Symbol - Introduced in 1952 by
• Musical Works the Universal Copyright Convention and is used for
• Artistic Works all works except sound recordings and collections.
• Films
• Sound Recording
• Broadcasts

For sound recording the symbol

of P inside a circle is used

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IPR 2022 Copyright

Legislation - COPYRIGHT ACT, 1957 (LATEST AMENDMENT 2012)

Came into force January 1958
Amended 6 times, 2012 Amendment makes it compliant to WCT and WPPT
The Act includes the definition of Computer Software in its ambit
Meaning of Copyright (sec. 14).

Authorities - Copyright Office, Copyright Board, Copyright Societies

Neighbouring Rights
In copyright law, related rights (or neighbouring rights) are the rights of a
creative work not connected with the work's actual author. It is used in
opposition to the term "authors' rights"
Rome Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations (1961) - Protection to Performers, Producers
etc (Actors, Singers, Musicians, Dancers and those who perform or produce
literary or artistic work)

Types of Rights in Copyright.

Economic Right – To reap the benefits provided by the copyright material.
Moral Right – Right to be identified as the creator and the right to prohibit
destruction or degradation of the work. (Even after economic rights are
transferred, moral rights still belong to the author)

Ownership
The author of the property shall have ownership on the property. But, If the work is
created within the scope of employment, the copyright is held by the employer, not
the employee. (Section 17) The moral right shall still remain with the author.
V.T. Thomas And Ors. vs Malayala Manorama Co.Ltd. (1989)

Cartoon named ‘Boban and Molly’ was created before starting

employment at Manorama so the copyright is held by V.T Thomas and
not the employer.

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Registration
• Copyright Protection is given as soon as the work comes into existence.
• Registration of Copyright is not compulsory - Nav Sahitya Prakash And Ors.
vs Anand Kumar And Ors. (1980)
• Section 44 directs Copyright office to maintain a register of the registrations
with title of work and authors details.
• Section 45 read with Rule 16 of Copyright Rules mention about the
registration process of copyright.
• Section 48 says that the register of copyright is admissible in court as
evidence

Term of Copyright
TRIPS suggest minimum protection of 50 years
For a term of copyright, we need to determine the time of publication.
Section 3 defines publication as ‘making a work available to the public by issue
of copies or by communicating the work to the public’
Term of copyright - Section 22 to Section 29
Original Literary, dramatic, musical and artistic works – Author’s
Lifetime + 60 years from the beginning of the calendar year next
following the year in which the author dies.
Films, Sound Recordings, Posthumous Publications, Anonymous and
pseudonymous publications, works of government and international
organisations – 60 year from the date of publication.
If the anonymous author is found then authors lifetime + 60 years.
If there is joint authorship in posthumous publication and one of
the authors is living then also authors lifetime + 60 years
Photographs – earlier 60 years from publications – after 2012
amendment 60 years from the death of the photographer.

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IPR 2022 Copyright

Licenses and Assignments

License
• Voluntary Licence (Section 30) – Granting of interest in the right by
license.
• Compulsory License (Section 31) – For Orphan works or if the work is
withheld from public.

Assignment – Copyright is transferred to another party on contractual basis.

Different transfers can be made for the same work, an author may permit her
book to be made into a play, merchandise, theme park etc. (J.K Rowling and
Harry Potter)
Section 18 and 19 talk about assignment and mode of assignment respectively.
Both Assignment and License could be for existing or future work

Infringement and Exceptions

- Unauthorized use of works or unauthorized reproduction without permission
of the copyright holder. (Section 51)
- Infringement could also be of the moral rights.
- Damages can be claimed for infringment.

Copyright work may be copied or used in certain situations:

1. Public Domain Work - Works which do not have protection or which have
an expired copyright or Orphan Works after granting of compulsory license.
2. Fair Use Doctrine- Use for educational and non-commercial purpose with
certain restrictions e.g. review, research, teaching, parody etc.
3. Permission

Fair Use Doctrine (Section 52 – Certain Acts not to be infringement of

copyright)
- Single copy for private, personal and non-commercial purposes for research
and study
- Criticism or review of that work

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IPR 2022 Copyright

- Making of Copies or adaptations of a computer program by the lawful

possessor of such program
- Making of backup copies purely as a temporary protection against loss or
damage
- Use of work for the purpose of reporting current events in a newspaper etc.
- Use of work for judicial proceedings
- Reproduction or publication of a work prepared by the Secretariat of a
legislature.
- Read or Recitation in public of any extract
- The reproduction by a teacher or a pupil in the course of instruction
- The making of not more than three copies of a book by or under the
direction of the person in charge of a public library for the use of the library
if such book is not available for sale in India.
- 2012 amendment now covers all works (films, sound recordings etc) with
regard to fair use, except software

Remedies
CRIMINAL REMEDIES (SECTION 63 – 69)
Punishment
First Offence - 6 months – 3 years, 50k-2lakh
Subsequent conviction – 1-3-year, 1– 3 lakhs
Cognizable offence – sub inspector and above may if he is satisfied that an
offence has been committed, seize without warrant, all copies of the work and
the equipment used for making infringing copies of the work

CIVIL REMEDIES (SECTION 54-62) (OTHER THAN DAMAGES)

Injunctions
Temporary, Permanent, or Interlocutory Injunctions.
Provisions under Order XXXIX, CPC
Mareva Injunction
A court order freezing a debtor's assets to prevent them being taken
abroad.
Order XXXVIII, Rule 5 of The Civil Procedure Code, 1908.

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IPR 2022 Copyright

John Doe Order

When the person committing the breach is not known, ‘Jon doe’ is used
to denote those persons in U.S.A and U.K, in India the name ‘Ashok
Kumar’ has been used.
This order can be given under Order XXX, rule 1 of CPC.
First used in Taj Television v. Rajan Mandal (2003) – Issue of
unauthorized telecasting of FIFA world Cup 2002 on cable networks.

Search and Seizure Orders (Anton Piller Orders) (Anton Piller Case (1976))
A court order allowing a party to litigation to enter the premises of another
to search for and, if found, remove specified documents or items.
Only when:
1. There is an extremely strong prima facie case against the respondent,
2. The damage, potential or actual, must be very serious for the
applicant, and
3. There must be clear evidence that the respondents have in their
possession relevant documents or things and that there is a real
possibility that they may destroy such material.

ADMINISTRATIVE REMEDIES
Administrative remedies consist of moving the Registrar of copyrights to ban
the import of infringing copies into India when the infringement is by way of
such importation and the delivery of the confiscated infringing copies to the
owner of the copyright and seeking the delivery.

Groundless Threats
If someone is threatening you of legal action by claiming as the owner of the
copyright. You can file a declaratory suit under Section 60 to obtain injunction
against continuation of such threats and get damages for it. But you have to
prove that the threat does not have a ground and is baseless.
Section 60 can’t be used once the person threatening has filed a suit for
infringement of his rights against you.

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Jurisdiction of Courts
A suit or other civil proceedings relating to infringement of copyright is filed in the
District Court or High Court within whose jurisdiction the plaintiff resides or carries
on business or where the cause of action arose irrespective of the place of residence
or place of business of the defendant

Limitation
The period of limitation for filing the suit is three years from the date of
infringement.

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