CERTIFICATE COURSE ON INTELLECTUAL PROPERTY RIGHTS AND

INFORMATION TECHNOLOGY IN THE INTERNET AGE

STUDY MATERIAL
ON
COPYRIGHT – I

INDIAN LAW INSTITUTE

BHAGWAN DAS ROAD
NEW DELHI-110001
 COPYRIGHT-I

Introduction:

Copyright is a well recognised form of property right which had its roots in the common law
system and subsequently came to be governed by the national laws in each country.
Copyright as the name suggests arose as an exclusive right of the author to copy the literature
produced by him and stop others from doing so.

The concept was originally concerned with the field of literature and arts. In view of
technological advancements in recent times, copyright protection has been expanded
considerably. Today, copyright law has extended protection not only to literary, dramatic,
musical and artistic works but also sound recordings, films, broadcasts, cable programmes
and typographical arrangements of publications. Computer programs have also been brought
within the purview of copyright law.

Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity.

The protection provided by copyright to the efforts of writers, artists, designers, dramatists,
musicians, architects and producers of sound recordings, cinematograph films and computer
software, creates an atmosphere conducive to creativity, which induces them to create more
and motivates others to create.

In India, the law relating to copyright is governed by the Copyright Act, 1957 which has
been amended in 1983, 1984, 1985, 1991, 1992, 1994, 1999 and 2012 to meet with the
national and international requirements. The amendment introduced in 1984 included
computer program within the definition of literary work and a new definition of computer
program was inserted by the 1994 amendment. The philosophical justification for including
computer programs under literary work has been that computer programs are also products of
intellectual skill like any other literary work. In 1999, the Copyright Act, 1957 was further
amended to give effect to the provisions of the TRIPs agreement providing for term of
protection to performers rights at least until the end of a period of fifty years computed from
the end of the calendar year in which the performance took place. The Amendment Act also
inserted new Section 40A empowering the Central Government to extend the provisions of
the Copyright Act to broadcasts and performances made in other countries subject to the
condition however that such countries extend similar protection to broadcasts and
performances made in India. Another new Section 42A empowers the Central Government to
restrict rights of foreign broadcasting organisations and performers. The Act is now amended
in 2012 with the object of making certain changes for clarity, to remove operational
difficulties and also to address certain newer issues that have emerged in the context of
digital technologies and the Internet. Moreover, the main object to amendments the Act is
that in the knowledge society in which we live today, it is imperative to encourage creativity
for promotion of culture of enterprise and innovation so that creative people realise their
potential and it is necessary to keep pace with the challenges for a fast growing knowledge
and modern society.

What is Copyright?

‘Copyright’ is the term we use for the bundle of exclusive rights which the laws of most
countries confer on authors to exploit the works which they create and no one else can
lawfully do it without the permission of the holder of the right.

The antiquity of copyright goes back to the fifteenth century when, with the invention of
printing, there developed in Europe a system of royal ‘privileges’ or ‘monopolies’ given to
publishers authorising them to publish particular books. This system served the State’s
interest in controlling what was published, but it also usually gave the holder of a royal
privilege (normally the publisher) an exclusive right.

From the eighteenth century onwards, the vacuum left by the abolition of the old feudal
system of royal privileges was filled by conferring this exclusive right on the author (rather
than the publisher) for a limited period of time.

The first copyright law, which was enacted in the U.K. in 1709, commonly known as the
‘Queen Anne’s Statute’, conferred only the right of the author of a book to print copies of it.
However, in course of time, the bundle of authors’ exclusive rights has widened vastly,
covering a variety of activities in respect of a variety of works.

The same principle came to be applied to other kinds of work, such as artistic and musical
works, and to be extended to other kinds of right in them, such as the right to perform a work,
or to make translations or adaptations of it, etc. Copyright has proved a very flexible,
adaptable form of intellectual property protection and today copyright laws bear on virtually
every form of public or mass communication, including the print media, radio and television
broadcasting, films, music, musical performances and recordings of them, computer
programmes, multimedia and the internet.

There are always, no doubt, a very small number of creative people who will produce great
works without considering the reward, but that is not true of most of the works that modern
civilisation needs: would we have the same wealth of dictionaries and encyclopaedias,
textbooks, popular novels, cookbooks, guidebooks, popular music, Bollywood films,
computer software, broadcasts, soap operas, and the myriad other kinds of work we use every
day, without any incentive for the authors?

Further, copyright piracy not only cheats the authors and the industries that bring us their
works but also the public in terms of tax revenue, and damages the quality of a society as
more money enters the black economy. It pays a country to protect copyright and encourage
its creative industries in order to promote both its cultural and intellectual vitality and the
growth of its economy.

What is covered by Copyright?

As with all fields of intellectual property copyright is concerned with protecting the work of
the human intellect. The domain of copyright is the protection of literary and artistic works.
These include writings, music, and works of the fine arts, such as paintings and sculptures,
and technology-based works such as computer programs and electronic databases.

Note that copyright protects works, that is the expression of thoughts, and not ideas. So if you
imagine a plot, this, as such, is not protected. For example, a plot consisting of a story about
young men and women falling in love despite family and caste obstacles would not be
protected. Different writers may build stories based on a similar plot. But when you express it
in a synopsis or in, say, a short story, or a play, the expression of the plot in that story will be
protected. Hence, for example, Shakespeare’s play Romeo and Juliet would be considered as
a creative expression of that plot. Still, other writers may build new stories based on a similar
plot.

The Berne Convention (1886), which is the oldest international convention governing
copyright, states in its Article 2:
 "The expression 'literary and artistic works' shall include every production in the
literary, scientific and artistic domain, whatever may be the mode or form of its
expression, such as books, pamphlets and other writings; lectures, addresses, sermons
and other works of the same nature; dramatic or dramatico-musical works;
choreographic works and entertainments in dumb show; musical compositions with or
without words; cinematographic works to which are assimilated works expressed by a
process analogous to cinematography; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works, to which are assimilated
works expressed by a process analogous to photography; works of applied art;
illustrations, maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science. [.....] Translations, adaptations,
arrangements of music and other alterations of a literary or artistic work shall be
protected as original works without prejudice to the copyright in the original work.
[.....] Collections of literary or artistic works such as encyclopaedias and anthologies
which, by reason of the selection and arrangement of their contents, constitute
intellectual creations shall be protected as such, without prejudice to the copyright in
each of the works forming part of such collections."

It should be borne in mind that works that are susceptible of being protected under the Berne
Convention are not restricted to the examples quoted above. Such a list is not exhaustive. The
expression “such as” opens the door to creations other than the ones set out in the list. For
example, court decisions, in different countries, have protected material such as: - private
letters, a divorce guide, a haircut, a floral decoration of a bridge, and examination papers.

There is no requirement that the literary and artistic work should be good or have artistic
merits. It should, however, be original. The exact meaning of this requirement varies from
country to country, and it is often determined by case law. In very general terms one may say
that in countries belonging to the common law tradition very little is required, other than that
the work must not be a copy of another work and that the author should have displayed a
minimum amount of skill, labor and judgement in making it.

In countries belonging to the civil law tradition, the requirement is often stronger, for
example that the work must bear the stamp of the author's personality. A creative effort
would be required from the author that may go beyond mere skill, labor or judgement.
What is meant by derivative works?

Another important feature of Article 2 of the Berne Convention is that it protects what is
commonly called “derivative works”. These are works that are derived from other, existing
sources. Examples of derivative works include: - translations of works into a different
language; - adaptations of works, such as making a film scenario based on a novel; -
arrangements of music, such as an orchestra version of a musical composition initially written
for piano; - other alterations of works, for example an abridgement of a novel; - compilations
of literary and artistic works, such as encyclopaedias and anthologies. In such a case, the
originality resides in the choice and arrangement of the materials. You would have to bear in
mind that, before embarking in a derivative work, you must respect the rights of the author of
the initial work. For example, an author who wishes to translate a novel into a foreign
language should seek proper authorization from the author of the novel that will be translated.
Making the translation without proper authorization would expose the translator to the risk of
being sued for copyright violation.

Economic justifications of Copyright

Justifications for copyright generally involve expositions by great philosophers and jurists
like John Locke (labour theory), Natural rights theory, social contract theory, Hegel’s
personality theory, Marxian theory of property, Blackstonian philosophy of property and the
incentive theory. Each of these theories were developed in cases of justifying existing
tangible properties being held by members of the society, and hence they may pose inherent
limitations in justifying copyright and other forms of IPRs.1

Economists claim that one of the most important reasons for doing so is that if everyone is
allowed to use the output freely the problem of ‘free riding’ will arise and so no one will
invest in innovation or creation. All the competitors will wait till someone does the
innovation so that they can use the result without investing money in innovation. The
economist claim that if they are given such economic rights like to exploit their innovation,
they will be encouraged for further innovation.

1
These theories may not be further discussed since it falls beyond the scope of this module. Kindly See, Bently
and Sherman, p. 32
 International Copyright

The Berne Convention: The works protected by copyright are trans-national by nature;
therefore, merely protecting a work in one country is not enough. From the early 19th century,
bilateral agreements began to be executed between States for international protection. A
movement for international copyright developed involving the leadership, among others, of
the great French author Victor Hugo, and culminated in the negotiation of the first version (or
‘Act’) of the Berne Convention for the Protection of Literary and Artistic Works on
September 9, 1886.

The Berne Convention was revised seven times in 1896 (at Paris), 1908 (at Berlin), 1928 (at
Rome), 1948 (at Brussels), 1967 (at Stockholm) and 1971 (at Paris) and finally in 1978.
Among these, the 1971 revision (the Paris Act) is of particular importance to the developing
countries as it provided special concessions to these countries in making translations and
reproduction of foreign literary works for educational purposes. Ninety countries are at
present member of the Berne Convention.

A country joining the Convention has to provide copyright protection to literary and artistic
works of member countries in its own territory and also entitled for enjoying reciprocal
protection from others.

In the earlier Acts of the Berne Convention, before the 1948 Brussels Act, there was a
‘colonial clause’ under which the ruling colonial power’s accession applied to the areas and
countries that it ruled. Thus, since Britain was a member of the Berne Union from its
Inception, it applied to India as well. However, the Government of India acceded separately
to the Rome Act of the Convention and India has been a separate member of the Berne Union
ever since.

The Berne Convention is administered by the World Intellectual Property Organisation

(WIP0) having its headquarters at Geneva, which is one of the specialised agencies of the

U.N.

The TRIPS Agreement: The environment of international copyright protection changed

considerably with the negotiation of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) in 1994, which required adherence to the substantive
requirements of the Berne Convention and added some more—thus, it described as being
‘Berne plus’. This is one of the various agreements administered by the World Trade
Organisation (WTO).

The protection of intellectual property, including copyright, is thus now treated as an issue
affecting international trade. This has two important consequences:

Copyright is no longer a sphere by itself; rather a country’s failure to meet the

standards of intellectual property protection laid down in the TRIPS Agreement may
invite sanctions going beyond the sphere of copyright or even of intellectual property.

A country’s policy and its negotiating stance in respect of intellectual property issues
is now but one of its counters in the wider game of international trade negotiations.

Working of International Copyright:

The two basic principles of international copyright are:

National Treatment: This means treating foreign works as if they were national works. Thus,
since India and the U.K. are both members of the Berne Union, the U.K. is obliged to give
works created by Indian authors the same protection that it gives to works by British authors,
treating them within the U.K. as if they were British works; and vice versa.

However there are a few exceptions to the rule of national treatment, where the alternative
principle of reciprocity is applied. The main exception relates to the term of copyright. Let us
suppose country A protects copyright for 70 years after the death of the author and country B
for only fifty. This means that country B will protect works by authors from country A for
only fifty years. Now if country A were to apply the national treatment rule, it would
nevertheless be obliged to protect works from country B for seventy years. However, Article
7(8) of the Berne Convention provides an exception to the national treatment rule, laying
down that

‘…the term shall be governed by the legislation of the country where protection is
claimed; however, unless the legislation of that country otherwise provides, the term
shall not exceed the term fixed in the country of origin of the work.’

Minimum Standards: The principle of national treatment implies that a work will enjoy
varying standards of protection in different countries. To keep such variation within
reasonable limits, the Berne Convention and the TRIPS Agreement require all member
countries to incorporate certain minimum standards of protection in their laws. Thus the basic
minimum standard for the term of copyright is fifty years after the end of the year of the
author’s death, and member countries must provide for at least such a term.

The copyright symbol © and the Universal Copyright Convention: The origins of the ©
symbol are interesting. One of the basic requirements of the Berne Convention is that there
should be ‘no formalities’ in respect of foreign authors, i.e. no author from a country of the
Berne Union should be required to fulfil any bureaucratic procedure (like registration of his
work) to enjoy copyright protection for it in another such country.

(Of course, since it would be invidious to require formalities from one’s own authors that one
does not require from foreign authors, this has resulted in most countries’ dispensing with
formalities altogether.)

There were some countries in 1950s, including the U.S.A., Russia(U.S.S.R. at that time), and
a number of developing countries, which were unwilling to adopt the standards of the Berne
Convention.

Then some of these countries (including the U.S.A.) also retained some ‘formalities’ as a
precondition for enforcing copyright in a work.

The Universal Copyright Convention (UCC), administered by UNESCO, was negotiated in

1951 to meet the needs of such countries.

It had lower standards than the Berne Convention in various ways,

and it addressed the question of formalities by laying down that the use of the
copyright symbol © on a work would be sufficient compliance with any requirement
of formalities in another member country.

Thus (India being a member of both conventions) the only legal advantage an Indian author
would obtain by using the © symbol on his work would be that of ensuring its copyright
protection in a country that was a member only of the UCC (such as the United States until it
acceded to the Berne Convention in 1976).

Now that all countries that are members of the WTO are bound by the TRIPS
agreement, which incorporates all the substantive provisions of the Berne Convention,
the UCC and its © symbol have effectively lost their earlier significance.

But the symbol remains useful as an indication that the author has asserted his
copyright in respect of the work on which it appears, and it continues to be used
mainly for that reason.

WIPO Copyright Treaty, 1996 and the WIPO Performances and Phonogram Treaty,
1996

These treaties address the areas which the WTO-TRIPS did not touch upon. The WIPO
Copyright Treaty and the WIPO Performance and Phonograms Treaty signed in 1996 has set
the tone for digital agenda.2 Since Berne could not be revised due to stiff opposition from
developing countries, the new treaties were meant to supplement the same.3

Special obligations concerning availability and enforcement of technical protection measures

through copyright has been a subject of intense debate since it is feared that such measures
would unduly restrict fair use provided under national laws.

WCT and WPPT is in some ways an extension to TRIPS agreement on certain counts- for
e.g. a distribution right to copies that can be circulated as tangible objects and rental rights in
certain cases. The digital rights management scheme is a clear reflection of demands of the
copyright owners to protect them in the digital context. It is interesting to note that the law
was framed in 1996 even when digital technologies had just arrived in developing countries
and the internet was relatively unknown. The WPPT was meant to supplement the Rome
Convention of 1961.

Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired

Persons and Persons with Print Disabilities, 2013

The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind,
Visually Impaired or Otherwise Print Disabled was adopted on 27 June, 2013 at WIPO. The
Treaty obligates Contracting Parties to provide limitation or exception to the right of
reproduction, the right of distribution, and the right of making available to the public in their
national laws to facilitate the availability of works in accessible format copies for beneficiary
persons. Such limitation or exception is to permit changes needed to make the work
accessible in the alternative format. India is the first country to ratify the Marrakesh Treaty.
The Marrakesh Treaty came into force on 30th September 2016 and is a welcome step

2
See WIPO, available at:
3
Bently and Sherman, p. 38
towards the realization of human rights of the beneficiaries. The Treaty aims at improving
access for the beneficiaries to publish works in the formats such as Braille, Daisy, large print
text, audio books, etc. The Treaty is just first step towards the ending of book scarcity for the
beneficiaries. The States will have to show their will by becoming party to this Treaty and to
amend their laws accordingly.

Impact of International Conventions on Indian law:

The international conventions to which India is party are not ‘self-enforcing’ in India as they
are in some countries: that is, they do not automatically become Indian law that can be
enforced by Indian courts.
Indian courts enforce only the laws enacted by Indian legislatures and, since copyright is a
Central subject in India, laws about it must be enacted by Parliament. However, where a
question of interpreting our copyright law is concerned, the provisions of a relevant
international convention to which India is a party may be of assistance: it is a reasonable
presumption (unless the language of the statutory provision is absolutely clear to the
contrary) that the legislature would not have intended to enact a law inconsistent with
existing international obligations.

Basic Concepts:

Works, not ideas are the subject matter of Copyright:

Copyright protects works but not ideas. Neither does copyright protect mere facts. There exists
no copyright in ideas. Copyright subsists only in the material form to which the ideas are translated.
Two authors may have the same idea for a book. However the way they express themselves i.e., the
way they put down their idea in a tangible form is what that makes a difference. It is the form in
which a particular idea, which is translated that is, protected.

The primary reason for granting protection to expressions and not ideas is to protect the free
flow of ideas. Ideas are too valuable to be copyrighted. The copyrighting of ideas would
eventually bring creativity and innovation to a standstill. It is for this reason that the freedom
to copy ideas is central to the structure of copyright law.
The idea-expression dichotomy poses a major challenge in distinguishing between the two.
The absence of a statutory provision necessitates reliance on several case laws that attempt at
chalking out a clear distinction between the two.

Not all ideas can be expressed creatively. Often, there are ideas that can be expressed in only
a particular way. In such a case, copyrighting the expression would amount to the
copyrighting of the idea that would in turn stall the free flow of ideas.

In every such case where the expression is necessary to effectively communicate an idea,
courts apply the Merger Doctrine to find that no copyright subsists. The Merger Doctrine
primarily seeks to address the point where ideas and expressions converge.

An important case in this regard is that of Morrisey v. Proctor & Gamble Co.4 This case
primarily dealt with a competition/contest and whether its rules are a subject for copyright.
The court held that the idea of the contest is merged with the rules. Copyrighting the rules
would amount to copyrighting the idea of the contest and therefore the rules are not a subject
matter of copyright. Likewise, in the case of Joshua Et-Hokin v. Skyy Spirits Inc.5 the
question arose about some photographs of the iconic blue bottle of Skyy Spirits. The Court
held that since there are only a few ways in which a bottle can be photographed, the pictures
cannot seek copyright protection.

Fixation:

It is one established principle of copyright law that copyright protection cannot be provided
to a work until and unless the work is expressed in some tangible form. This requirement of
expressing the idea is known as the requirement of fixation in copyright. This essentially
means that the work must be embodied in a copy which allows it to be seen or copied by
others. The issue of whether a work must be fixed in a tangible form in order to be protected
is not dealt with in a uniform way. Copyright law draws a distinction between the work (an
intangible intellectual creation in which copyright subsists) and the tangible object in which
the work is fixed.

4
379 F.2d 675 (1st Cir. 1967).
5
225 F.3d 1068 (9th Cir. 2000).
However the laws of many countries6 do require, for essentially practical reasons,that to
qualify for copyright protection a work must have been fixed in material form (though not
necessarily by the author) e.g. a literary work should have been written down or a musical
work recorded in notation or otherwise.
Article 2.2 of the Berne Convention leaves it to national laws to determine whether or not to
require fixation in material form.
The Copyright Act, 1957 does not specifically require fixation of the work as a precondition
of protection. But in most cases, in practice, it would be difficult to pin down the identity of a
work, and consider an allegation of infringement, if the work had not been fixed in material
form.

Originality:

Copyright protects original works. This only means that to enjoy copyright in a work its
author should have created the work rather than reproducing another work. It does not mean
that the work has to be very novel or innovative: so we say that the standard of originality
required for copyright protection is low.
The concept of originality is the most foundational threshold for acquiring copyright
protection. The degree of requirement of originality is discussed in some case laws in India
and abroad. In copyright sense of the term, originality means originality in expression of
ideas and not originality in ideas themselves. It must be noted that the foremost objective of
requiring works to be original is to prevent existing works from being the subject-matter of
any further copyright subject-matter if there are no additional contributions or done to it. In
other words, it is to avoid conflicting claims over the same subject matter being protected
repeatedly. However, ideas are not protected and hence difference is expressions based on
repeated use of ideas are allowed. The requirement of originality is also in public interest
since it would serve as an incentive to bring original expression based works in to the market.
The degree of originality required is, however, low.

There has to be some minimal creative, intellectual contribution in the arrangement or

presentation of material to make something qualify as an original work.
De Minimus rule: Though a work might be very brief, some things are regarded as
insufficiently substantial to be treated as works. Thus a string of just a few words, or the title

6
These are countries of the ‘common law’ group. Some of the major differences between national laws will be
discussed later.
of a work, or a name, would not normally be regarded as a work qualifying for copyright
protection.

In University of London Press, Limited v. University Tutorial Press, Limited7, resolving the
dispute if question paper sets were ‘original’ literary works, the court stated that:
“... The word "original" does not in this connection mean that the work must be the
expression of original or inventive thought. Copyright Acts are 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.”
In Eastern book Company v. D.B.Modak case8, the Court laid down the ‘skill and judgment’
test. The court came to the conclusion that to claim copyright in a compilation author must
produce a work with exercise of his skill and judgment. It may not be creative in the sense of
being novel and non-obvious, but it must not be mere labour and capital.

Authorship:
Authorship and the two approaches to copyright: The Berne Convention nowhere defines or
identifies the ‘author’ who is intended to be its principal beneficiary.

This is the most fundamental point of divergence between two approaches to copyright—
‘common law’ and ‘civil law’—that have existed from the beginnings of copyright. The
‘common law’ countries are those which have inherited from English law the body of case-
law that is known as the ‘common law’; this includes as a general rule all those countries that
were ever under British rule, starting with the United States. India is, obviously, one of the
common law countries.

It is important to always bear in mind that what we are speaking of are two different trends
or tendencies of thought, not two explicitly formulated contradictory doctrines. Simplifying,
even to the point of caricature, we might characterise these two approaches as follows:

‘Civil law’ approach: ‘Authors have an inherent, natural right over their works, which

7
(1916) 2Ch 601.
8
(2008) 36 PTC 1 (SC).
are but emanations of their unique human personalities; this is the primary justification of
copyright which must not be diluted by concern for secondary interests (like those of
publishers or other entrepreneurs) howsoever important.’

‘Common law’ approach: ‘Copyright is a right conferred by the State in order to

financially reward the people (individual authors being of course the most important)
who give us works of different kinds; it provides an incentive and a reward for their
creativity and hard work, including the entrepreneurial contribution of publishers,
producers and the like. Such a benefit should ideally be conferred to the extent, neither
more nor less, that appears optimal, keeping in view the interests of all those involved in
making works available to the public.’
The ‘civil law’ notion of authorship makes it difficult to allow a company or other juridical
person, or someone like a film producer or producer of phonograms, to claim to be an author.
This is not a problem for the ‘common law’ countries.
Thus the ‘civil law’ countries do not treat sound recordings (or ‘phonograms’) as ‘works’
both because
(a) the author would have to be a producer, usually a company, and
(b) because the recording of sounds for a phonogram, though it may require great
professional skill, seems to lack the necessary element of personal creativity. They do protect
phonograms, but they call it a matter of ‘neighbouring rights’ rather than of copyright.The
‘common law’ countries have no such difficulty in treating the producer of a sound recording
as an ‘author’ and in treating sound recordings as ‘works’ or as subject matter for copyright.

There is no dispute that a cinematograph film is a ‘work’ deserving of copyright protection.

But who is its author?
• Article 14(2) of the Berne Convention leaves the question to national law, but
requires that if sundry contributors are granted part authorship they should not be
in a position to prevent exploitation of the film (by the producer).
• In common law countries (like India) we treat the producer (individual or
company) who brings the film into existence as its author.
• Civil law countries are unwilling to treat the producer of a film as its ‘author’ but
have created various legal fictions to safeguard the producer’s interests.
Authorship under the Copyright Act, 1957: Section 2(d) of the Copyright Act defines
what the term ‘author’ means in relation to different kinds of work:
• In relation to a literary or dramatic work, the Act does not give any special definition,
nor is one necessary.
• The author of a musical work is the ‘composer’. Section 2(ffa) defines the composer
as ‘the person who composes the music regardless of whether he records it in any
form of graphical notation.’
• The author of an artistic work other than a photograph is the ‘artist’. This refers to
the person who paints a painting, who sculpts a sculpture, who draws a drawing or
who engraves an engraving. The author of a photograph is the person who takes the
photograph.
• The author of a cinematograph film or sound recording is the producer. A producer
in this context is defined in section 2(uu) as ‘the person who takes the initiative and
responsibility for making the work’. As we have seen, the producer of a film or
sound recording under our law may be either a natural or a legal person.
• The author of a literary, dramatic, musical or artistic work that is computer generated
is ‘the person who causes the work to be created’.
• In all cases, a person has to create an original work, in the copyright sense that we
have discussed, in order to enjoy the rights of an author in it.
Authorship and the ownership of copyright: The essential purpose of copyright is, subject
to the interests of the public, to protect the interests of authors in relation to their works.
Normally, the author is the first owner of copyright, and he may exploit the work by
assigning it, or by licensing the use of it, to others. However, in certain circumstances, the
law may provide for some other person (natural or juridical) to be the first owner of
copyright.
In India, section 17 of the copyright provides for the following cases where (in the absence
of any agreement to the contrary) the first owner of copyright is someone other than the
author:
• If an author creates a literary, dramatic or artistic work in the course of employment
in a newspaper, magazine or similar periodical, which is for the purpose of publication in the
periodical, then the proprietor is the first owner of copyright for the purpose of such
publication, though not for other possible uses of the work.
• In the case of certain commissioned works—viz. a photograph, painting or portrait, or
engraving or cinematograph film made for valuable consideration at the instance of another
person—the first owner of copyright is the person commissioning the work, not the author.

• In all other cases where the author creates the work in the course of employment, i.e.
where he creates it while performing the job for which his employer has hired him,
the employer is the first owner: in other words, the limitation on the employers’
ownership in the first case of above would not apply where the employer is not a
newspaper or periodical.
• The person who delivers a speech, or where the speech is read out by someone else
then the person on whose behalf it is delivered, is the first owner of copyright, no
matter who actually drafted the speech.
• In the case of works published by or under the direction or control of the
Government, or a Government undertaking, Government company or statutory body,
or an international organisation notified by the Government (under section 41) the
Government or corresponding employer is the first owner of copyright.
• In all the above cases, it should be borne in mind that what has been said is subject to
any contractual agreement to the contrary: thus it is possible for an author to protect
his rights, subject to what the other party will agree to, by negotiating an agreement
under which he retains copyright.

The public domain

We have, all this while, been considering works protected by copyright. It is worth reminding
ourselves how much of the intellectual and cultural wealth of humankind lies in works which
are not so protected. This is called the public domain.
Much of it was created before there ever was such a thing as copyright and much has fallen
into the public domain after the term of copyright expired. Much of it is folklore without an
identifiable author.
It is usually considered both natural and desirable that works in the public domain should be
freely available not only for reproduction but for adaptation and other forms of exploitation
for the creation of new works which, if they meet the test of originality, will enjoy copyright.9

9
Eastern Book Company v. D. B. Modak, (2008) 1 SCC 1.
Once a work falls into the public domain, and has been exposed to such use as well as direct
exploitation, it is not considered appropriate to bring it back within the sphere of copyright
protection. Thus Article 18 of the Berne Convention provides that when a country accedes to
the Berne Convention the Convention shall apply only to those works which have not yet
fallen into the public domain.

Duration
The term of copyright under the Berne Convention and under the TRIPS Agreement is 50
years post mortem auctoris (p.m.a.) i.e. after the author’s death.In fact this period is counted
from the 1st of January following the author’s death, so that it always ends on the 31st of
December and we are all spared the need to remember so many birthdays.
In certain cases, like cinematograph films or where the author’s identity is not disclosed, this
period may be counted from the year of publication. · There has been a tendency in some
countries to extend this term, and in India also it was extended to 60 years p.m.a. by the
amending Act of 1992. The main arguments for and against a longer period may be
summarised as follows:
Arguments for a longer term of copyright:
The author’s grandchildren at least should benefit, in the context of longer life expectancy.
The author himself will benefit if he chooses to assign his work: with a right assured of
longer duration he has more to sell.
Arguments against further extension of the term of copyright:
In reality, a longer term will not benefit authors, or motivate them; very few works are still of
any commercial value so long after an author’s death, and it is impossible to forecast which
will survive; hence a very long term of copyright will only give future right holders, probably
publishers, a windfall. Further, it is not in the interests of the public at large for works to be
kept out of the public domain for longer than necessary.It may also be argued, between the
two positions, that what is really desirable is consistency between the laws of different
countries, whatever the term of copyright.

Types of work protected by copyright:

Literary and artistic works in general: The Berne Convention term ‘literary and
artistic works’ is defined very inclusively in Article 2.
The laws of some countries provide similar inclusive or open-ended definitions, but those of
others, including India, provide exhaustive definitions: thus in our Copyright Act the statute
states exactly which kinds of work are protected and, if a new kind of work comes into
existence, the legislature may have to amend the statute to cover it.

It is not unusual for several different copyrights, whether pertaining to different authors or the
same one, to subsist in the same composite work. Two obvious examples are illustrated books
(which contain both literary and artistic works) and songs (which comprise both literary and a
musical works.)
There are also many cases where a separate copyright subsists in the composite work itself:
the case of anthologies and compilations will be referred to below; and consider the case of
the photograph of an engraving of a painting! A cinematographic work is another obvious,
and more common, example.
Article 2(3) of the Berne Convention specifically confers a separate copyright on derivative
works, described as ‘translations, adaptations, arrangements of music and other alterations of
a literary or artistic work’.The precise list of copyrightable works varies in different
countries.
Thus the laws of some countries treat sound recordings as works protected by copyright, over
and above any copyright in the recorded work, but in other countries these are protected by
means of a ‘neighbouring right’.
Again in some countries, either by means of judicial decisions or by new legislation,
computer programs came to be protected as literary works much before this became the
international norm.
Digital technology and new kinds of ‘work’: With the advent of digital technology
some new types of work came into being and questions arose about how, and to what
extent, they should be protected:

Computer programs and Compilation: Article 10.1 of TRIPS Agreement provides that
computer programs, whether in source or object code, shall be protected as literary works
under the Berne Convention (1971). This provision confirms that computer programs must be
protected under copyright and that those provisions of the Berne Convention that apply to
literary works shall be applied also to them. It confirms further, that the form in which a
program is, whether in source or object code, does not affect the protection. The obligation to
protect computer programs as literary works means e.g. that only those limitations that are
applicable to literary works may be applied to computer programs. It also confirms that the
general term of protection of 50 years applies to computer programs. Possible shorter terms
applicable to photographic works and works of applied art may not be applied.

Databases and Multimedia works: Article 10.2 of the Agreement clarifies that compilation of
data or other material shall be protected as such under copyright even where the databases
include data that as such are not protected under copyright. Databases are eligible for
copyright protection provided that they by reason of the selection or arrangement of their
contents constitute intellectual creations. The provision also confirms that databases have to
be protected regardless of which form they are in, whether machine readable or other form.
Furthermore, the provision clarifies that such protection shall not extend to the data or
material itself, and that it shall be without prejudice to any copyright subsisting in the data or
material itself.

Works protected under the Copyright Act, 1957:

Section 13 of the Copyright Act provides that copyright shall subsist throughout India in
certain classes of works which are enumerated in the section. Copyright subsists throughout
India in the following classes of works:
• Original literary, dramatic, musical and artistic works;
• Cinematograph films; and
• Sound recordings.

The term ‘original’ is prefixed to literary, dramatic and musical works and not to
cinematograph films and sound recordings as they are derivative works.
It is important to note that copyright law does not impose any standard of quality of work for
being protected. Hence what is required is only originality of expression and not any
particular degree of artistic or other merit. In other words, the work should originate from the
author. Again, the Act does not make it mandatory that the work should be fixed in a tangible
form. In this sense the Indian position is different from English law wherein fixation is a
must.10
Literary Work:

10
Copinger and Skone James on Copyright, Volume 1 (Sweet & Maxwell,1999).
Section 2(o) defines the term “literary work” so as to include computer programmes, tables
and compilations including computer databases. However, what is “literary” remain
undefined. The definition of literary work is an exhaustive one to include new subject matter
like computer programmes and databases. In Agarwala Publishing House v. Board of High
school & Intermediate Education11 , a writ petition filed by a publishing firm challenging an
amendment of the regulation of the Board of High School and intermediate examination
wherein it was mentioned that the copyright of the question paper set for examination
conducted by the Board, shall vest with the Board and further forbidding the publication of
such question papers without permission from the Board with a prescribed royalty. It was
argued by the petitioners that as per Section 13 of the Act, question papers were not original
literary works and alternative even if it were to be so, the copyright vested with the author by
operation of section 17 of the Act. The Court came to the conclusion that it is untenable to
argue that no copyright exists in question papers under section 13 of the Act. In coming to
this conclusion the court relied on two important judgments in University of London Press
Ltd. v University Tutorial Press Ltd12 and Jagadish Prasad Gupta v. Parameswar Singh 13. It
was held in those cases that question paper sets for examinations were literary works which is
expressed in print or writing, irrespective of the question whether the quality or style is high
and it was further pointed out that the word “literary” seems to be used in a sense somewhat
similar to the use of the word “literature” in political or electioneering literature and refers to
“written or printed matter”. In the same rulings it was held that question papers were to be
counted as “original” works if they were not copied from other works but originated from the
author and the preparation of such papers involved selection judgment and experience.
Computer Programs:
As computer programs prima-facie compose of expressions in terms of written code, they
came to be extensively protected under copyright as forming part of the category of literary
works. Problems started cropping in after copyright protection available for literal codes
could be easily defeated because similar programs could be generated by extensive variations
in such literal codes. Thus programs came to be judged for non-literal infringement of
copyright thereby invoking the traditional doctrine of idea-expression dichotomy. The
doctrine simply states that only expressions are protected under copyright, and not the idea

11
AIR 1967 All 97.
12
1910 CH 801.
13
AIR 1966 Pat. 33.
(discussed in detail later). This presented difficulties in determining what constituted ‘ideas’
and ‘expressions’ in a given program.
The Copyright Act, 1957 protects ‘original’ works, tacitly galvanizing the distinction
between idea and expression. It extends protection to computer program under the category
of literary works provided they constitute ‘original literary works’. The word “computer” and
“computer program” have been graciously defined. Section 2(ffc) defines computer program
thus: “Computer programmme” means a set of instructions expressed in words, codes,
schemes or in any other form, including a machine readable medium, capable of causing a
computer to perform a particular task or achieve a particular result;”
Firstly, the fact that computer programs are utilitarian works is well imbibed in the definition
by using the words “a set of instructions” and “capable of causing a computer to perform a
particular task or achieve a particular result.” Secondly, the word “expressed” asserts that
even while utilitarian works are given protection, such protection only extends to its
expression. Thus the concept of idea-expression dichotomy is advanced. Thirdly, the use of
words, “form” and “medium” makes fixation a requirement. Next, the terms “words, codes,
schemes, or in any other form” and “including a machine readable form” cover protection
for both source code and the object code. As among any other work, copyright in a computer
program is infringed by making without authorization a copy of a program or substantial part
thereof. The definition of ‘computer program’ in India can comfortably deal with situations
of literal copying. However, as already seen, there can also be non-literal copying which has
its origin in infringement of other works, particularly, plays and stories, where courts have
expressly stated that copyright protection does not strictly end only to words. Hence the
statutory protection is not explicit of situations of non-literal infringement of computer
programs. Thus the determination of non-literal infringement in any given case would have to
heavily rely on judicial understanding of the idea-expression dichotomy.14
The definition of computer program in India does not require that a computer program must
communicate its expression directly to the user. In United States the ninth circuit, in Apple
Computers Inc. v. Formula International, Inc., 775 F.2d 521 (Fed. Cir. 1984), answered the
same in non-affirmative. Since object code does not communicate anything to human being
the copyroghtability of such code was called into question. Thus the question initially faced
by the courts in US as to whether copyright extends protection to object code expressed in a
electronic circuitry, will not arise in the Indian context. In Apple Computer Inc, v. Franklin

14
For details see, Yogesh Pai, “Copyright Protection for Computer Program: Walking on one Leg” 48 JILI 359
(2006)
Computer Corp., 714 F.2d 1240 (Fed. Cir. 1983), it was held that computer programs are
protected in machine-readable form even when embodied in a ROM. The question whether
‘microcode’ can be protected as computer program was answered in affirmative in US in
NEC Corp. v. Intel Corp., 645F. Supp. 590 (N.D Cal. 1986) and also in Myland Inc. v. IBM,
746 F. Supp. 520 (ED Pa. 1990).
It is unfortunate that even while the copyright Act, 1957 extended its subject-matter
protection to specifically include computer programs way back in 1984, there are no reported
cases even after 25 years of its amendment. Could the reason for this be the less competitive
product based software industry in India which does not engage in competitive work where
infringements are possible?
Artistic work:
Section 2(c) of the Act defines elaborately the term “artistic work”. It states that artistic work
means 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 craftsmanship.
This definition is wide enough to include any work that reflects artistic craftsmanship in some
cases protection is granted even without any artistic quality.
(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’
It is not difficult to identify something as a painting, sculpture, drawing, engraving or
photograph. The important point about them is that artistic quality is immaterial. The Act
does not say this about the other kinds of artistic work discussed below.Section 2(za) clarifies
that a ‘work of sculpture’ includes casts and models.
(ii) ‘a work of architecture’. This term is further defined exhaustively in section 2(b) as
‘any building or structure having an artistic character or design, or any model for any
such building or structure’.
·Thus, every building or structure is not protected by copyright. There has to be some original
element in its design which may be described as having artistic character. This might be in
the form of the building, the way its spaces are arranged, and/or in its ornamentation. But we
must remember that (i) the standard of originality remains a low one and (ii) ‘artistic
character’ does not mean artistic merit: an architectural work that most people think is ugly
might still be protected by copyright.
Section 13(5) further clarifies the nature of a ‘work of architecture’ by laying down that
‘copyright shall subsist only in the artistic character and design and shall not extend to
processes and methods of construction.
(iii) ‘any other work of artistic craftsmanship’. This means something that is not a
‘painting, a sculpture, a drawing, an engraving, a photograph or an architectural work, but
which nevertheless displays some artistic craftsmanship. Works of artistic craftsmanship may
include such everyday useful objects as furniture, pottery, cutlery, jewellery, etc.
Here the possession of some artistic quality or character is vitally important to distinguish a
copyrighted work from objects not protected by copyright. This does not mean it must have
artistic merit, but that its design involves some artistic feature or characteristic that does not
arise purely from the use for which the object is intended.
However the law of copyright is not intended to protect mass-produced useful objects, even if
they possess original artistic character. The artistic design features of a useful object are
normally capable of registration under the Designs Act. Under section 15 of the Copyright
Act, copyright protection ceases if the copyright owner makes or authorises the making of
more than 50 copies of such a design by an industrial process; the protection available in such
a case would be that provided by the Designs Act.

Thus in Ananda Expanded Italics (Reg), In re,15 the Registrar of Copyrights examined
whether or not typefaces/fonts were artistic works within the meaning of the Act. The issue
was if single letters in the font could merit separate copyright protection apart from the entire
work. The applicants pleaded that English law protected them since they had a special section
concerning it and in India the intention of the Parliament was to include the same within the
term “any other work of artistic craftsmanship”. The Registrar in his judgment noted that
while we see that the principle of ‘ejusdem generis’ limits the meaning of the term “any
other work of artistic craftsmanship”, international conventions have not considered
protection of typeface as an artistic work. Even in England where they are protected, there are
specific provisions. In the absence of such specific provision in the Indian law, following the
principle of ‘ejusdem generis’ it is concluded that typefaces are not included in the genre of
artistic works as defined in section 2(c), especially in view of section 16 of the copyright Act.
It was further noted that such typefaces were designs capable of being registered under the
Designs Act and hence copyright could not subsist within the meaning and scope of section
15(2) of the copyright Act. The registrar interpreted the term “pattern” to include “typefaces”
under section 2(5) of the Designs Act, 1911.16

15
(2002) 24 PTC 427
16
Another important judgment on the issue of what constitutes copyright in an “artistic work” can be read in
the case of Microfibers Inc. v Giridhar and Company (2006) 32 PTC 157 (Del.).
Design and artistic works
Section 15 of the copyright Act provides that ‘copyright shall not subsist under this Act in
any design, which is registered under the Design Act, 1911’.
Dramatic works:
Section 2(h) of the copyright Act defines “dramatic work” to include any piece of recitation,
choreographic work or entertainment in dumb show, the scenic arrangement or acting form of
which is fixed in writing or otherwise but does not include a cinematograph film. Unlike
other works where fixation is not mandatory, in case of dramatic work, it has been so insisted
with the use of the terms “in writing or otherwise”. The definition also specifically excludes
from within its purview cinematographic films. In an important judgment pertaining to rights
of an actor in a cinematographic film, the court analyzed various definitions of terms in the
Act. In Fortune Films International v. Dev Anand17 the court concluded that:
“If, in our opinion by the agreement it was agreed between the producers and the cine artiste
that the copyright in the cine artiste's work in the motion picture is to vest in the cine artiste
till full payment of the agreed amount is made to him, on which it would automatically vest
in the producers, it becomes necessary to examine the contentions advanced at the bar on
behalf of the appellants (producers) that such a copyright was not recognised or protected by
the (Indian) Copyright Act, 1957. It was submitted that the Copyright Act properly read
would seem to protect only "work" as therein defined and if the works indicated in the
definition of "work" to be found in Section 2 (y) of the Copyright Act properly considered,
only "work" which is tangible in nature was protected. It was submitted that there could be a
copyright in a motion picture or a cinematograph film as also in the story, scenario or music
(if written on sheets or if put on a sound tract or a tape, but not otherwise), which were all
tangible, but not in the performance of an artiste although it was part of component element
of a film. On the other hand, on behalf of the cine artiste it was contended that the
performance of an actor was covered by the definition of "artistic work" or "dramatic work"
to be found in Sections 2 (c) and 2(h) of the Copyright Act, 1957. Alternatively the argument
which was advanced was that a cinematograph film would include portions of the film or
components of the film and an artiste’s work in the film must be regarded as a component or
a part of the film which would be entitled to protection as falling within the definition of
"work". It becomes necessary, therefore, to examine the relevant provisions of the Copyright

17
AIR 1979 Bom 17
Act, 1957, to which our attention was drawn at the bar, in order to consider which of the rival
submissions are to be accepted”.
In this case the court considered itself with Section 2, which is the interpretation section and
hence was concerned with the words "artistic work", "author", "cinematograph film",
"dramatic work", "performance" and "work" to be found in Sub-sections (c), (d), (f), (h), (q)
and (y) respectively of Section 2. In the light of these provisions whether the performance of
a cine artiste in a film would be a 'work' protected by the Copyright Act, 1957, and, if it is so
protected, what would the rights of the cine artiste be in the case under consideration was the
issue before the court. The court said:
“We will have in this connection to consider the submission made on behalf of the cane
artiste that such performance would be covered either by the definition of "artistic work" or
"dramatic work" or "cinematograph film" to be found respectively in Sub-sections (c), (h)
and (f) of Section 2 of the Copyright Act, 1957. If it is so covered, such performance would
fall within the meaning of the word 'work' to be found in Sub-section (y) of Section 2. It
therefore becomes necessary to examine these definitions one by one to consider whether
such submission can be accepted”.
“"Artistic work" has been defined as meaning a painting, a sculpture, a drawing, an engraving
or a photograph, and it would be clear and obvious that the performance given by an artiste in
a cinematograph film cannot be equated with any of the five categories indicated; as it is a
comprehensive definition; unless expressly covered, Sub-section (c) would not be of any help
to the cine artiste. The definition of "dramatic work" to be found in Section 2(h), however, is
an inclusive definition including any piece for recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting form of which is fixed in
writing or otherwise. The definition, however, expressly excludes a cinematograph film by
the closing words of Sub-section (h) of Section 2”.
“It was submitted that the performance of the cine artiste is acting, the form of which is fixed
in the film and, therefore, would be within the definition of "dramatic work". Alternatively in
connection with this definition itself is was submitted that since it was an inclusive definition,
even if an actor's performance fixed in the film negative was not expressly covered by the
portion of the definition commencing with the words "any piece......" and ending with the
words "or otherwise", it must be regarded as a dramatic work by the very nature of things. In
connection with the closing words of the Sub-section which excluded a cinematograph film
from the definition of "work", it was submitted that either a cinematograph film must be
construed as a total film and therefore, only the film which is the final product of various
dramatic works would be excluded, so that the performance of the actor would still remain
within the definition of "dramatic work"; alternatively, it was urged that if the dramatic work
of an actor being part of a cinematograph film were to be excluded by the specific words of
Sub-section (h) of Section 2, then it must necessarily be included within and must be held
covered by the definition of a "cinematograph film" as defined by Sub-section (f) of Section2
which is also an inclusive and not a comprehensive' definition”.
“It is apparent that the definition in the Indian Copyright Act is substantially the first part of
the definition of "dramatic work" under the English Copyright Act, 1911, excluding the later
portion in the definition under the English Act concerning cinematograph production. On a
plain reading of the definition of "dramatic work" it is not possible to accept the submission
of learned counsel for the cine artiste that the motion picture could be regarded as a piece for
recitation or a choreographic work or entertainment in dumb show. Under the definition to be
found in Sub-section (h) of the Copyright Act, 1957, only for a dramatic work of any of these
three types specified i.e. (i) piece for recitation, (ii) choreographic work or (iii) entertainment
in a dumb show would be included, and then further only where the scenic arrangement or
acting form of which (in the three types) is fixed in writing or otherwise. When this
requirement is satisfied then the work under consideration will amount to a "dramatic work"
which will be protected by the provision contained in the Copyright Act. It is true that the
words "or otherwise" are to be found in the definition of "dramatic work". But in our opinion
these words are there, it seems, only to provide for the modern means of recording such as a
tape-recorder or a dicta phone and similar instruments. Again, it must be observed that the
concluding portion of the definition of "dramatic work" in the Sub-section, which excludes a
cinematograph film, would seem to clearly shut out any contention that the dramatic
performance of a cine artiste which is fixed or recorded in the film negative will be "dramatic
work" within the meaning of this definition and therefore protected by the Copyright Act. It
is true that the definition is an inclusive definition; but it would not be permissible to extend
it to cover all cases where the work can be popularly described as exertions or efforts of a
dramatic nature. In this connection it may be clarified that we are not concerned with the
work on a stage or performance in a drama (which may be of several types) which may or
may not be covered by the definition of "dramatic work". Again, the words "fixed in writing
or otherwise" would seem to suggest a point of time prior to the acting or scenic arrangement,
which requirement would be required to be satisfied before the work can qualify to be a
"dramatic work" and secure protection. It is debatable whether the record of the acting or
scenic arrangement made on a film after the scene is arranged or acting done or
contemporaneous therewith, would be covered by the definition”.
One of the major critics of this judgment is whether it is correct to conclude that since the
concluding portion of the definition of ‘dramatic work’ excludes cinematographic films, is it
right to conclude that it clearly shuts the door for an argument that the dramatic performance
of the cine artiste, which is fixed or recorded in the film negative will be dramatic work and
therefore protected by the Act. It would also be important to distinguish between the
definition of dramatic work and cinematographic film since the author of a dramatic might
enjoy his right to incorporate this dramatic work in a cinematographic film.

Musical Work:

The word “musical work” finds mention in section 2(p) of the copyright Act. However, the
word “music” itself is defined nowhere in the Act. The older definition insisted that fixation
was mandatory and must also include “melody and harmony” as a criterion be get under the
protective gear of copyright. The 1994 amendment defined the term ‘musical work’ to mean
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. As
per the amended definition, fixation is not any more a requirement. In Gramophone Co. of
India Ltd. v Super Cassette Industries Ltd,18 the Delhi High Court the meaning of music and
the fixation requirement under the un-amended definition in the Act. The dispute mainly
revolves around section 52(1) (j) and section 14(i) (a) (i) and (ii) of the copyright Act. It was
alleged that the defendants had used the title of “HUM AAPKE HAIN KAUN” along with
characters of the movie in one of its version recordings. While discussing the scope of section
52(1) (j), the court interpreted the term ‘musical work’, wherein the court noted:
“There is yet another difficulty. “Musical work” is not merely a combination of melody or
harmony or either of them. It must necessarily also have been “printed, reduced to writing or
otherwise graphically produced or reproduced”. As we know figurations, progressions and
rhythmic patters are sometimes used in creation of melodies. Every musical composition has
a structure and shape, that is arrangement of individual elements so as to constitute a whole
and that musical notation means a visual record of musical sound (heard or imagined) or a set
of visual instructions for performance of music. Its main elements are pitch (location of

18
(1996) 16 PTC 252 (del)
musical sound on the scale), duration, timbre, and volume. There are various systems of
notation like verbal, alphabetical, numerical, graphic and tablatures. The words “printed,
reduced to writing or otherwise graphically produced or reproduced” are thus not an empty
formality. … the result is that the record made by the plaintiff cannot be claimed to be a
musical work both by the plaintiff as well as the defendant.”
However, it is surprising to note that even after concluding it to be so, the court went on to
grant some form of remedy by altering the earlier remedy in favour of the plaintiffs. The
court said that “But then there is enough in the plaintiff’s case to make it right to grant some
interlocutory relief, which at the same time should not hamper the defendants, though it may
put them to little expense. I propose to vary the injunction that was made ex parte by saying
that the defendants are not to use in the carton or inlay card or any other packaging material a
design, colour scheme, layout and get-up similar to that of the plaintiff’s; not in the title to
use the words HUM AAPKE HAIN KAUN which would be calculated to lead to the belief
that the defendant’s record was the plaintiff’s record”.

Cinematograph films
Section 2(f) of Copyright Act, 1957 defines cinematograph films as 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.

Sound recordings
The embodiment of sound, and its capacity for reproduction, are the two essentials of the
concept of "record" in the Copyright Act, section 2(w), where the expression is defined as
"any disc, tape, perforated roll or other device in which sounds are embodied so as to be
capable of being reproduced there from", other than a sound track associated with a
cinematograph Film.

Section 2(xx) of the Copyright Act, 1957 defines sound recording as 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 produced;
The term of copyright under the Copyright Act, 1957:
Sections 22-29 of the Copyright Act, 1957 deal with the term of copyright. The term of
copyright begins the moment a copyrighted work is created. Following provisions lay down
the rules for determining when copyright in a work ends and it falls into the public domain.
In case of literary, dramatic, musical and artistic works (except photographs) the term is
generally sixty years from the beginning of the calendar year next following the year in
which the author dies: thus if an author dies on 2nd January 2010, the term of copyright will
continue for sixty years from 1st January 2011, i.e. until 31st December 2070.

If there are two or more authors, i.e. it is a case of joint authorship, the above term will be
determined by the date of death of the author who dies last.· If the work is published
pseudonymously or anonymously, the period of sixty years will be counted from the
beginning of the calendar year next following the year of publication. But if the identity of
the author of such a (pseudonymous or anonymous) work is disclosed before the work falls
into the public domain, the term will be the usual one for known authors. If such a
(pseudonymous or anonymous) work is a work of joint authorship, and the name of one or
more of such authors is disclosed before the work falls into the public domain, then copyright
continues for sixty years from the beginning of the year following the death of the last author
whose name has been disclosed.

The explanation to section 23 lays down two circumstances under which the identity of the
author of a work published anonymously or pseudonymously is deemed to have been
disclosed:
(1) if it is disclosed publicly by both the author and the publisher or
(2) if the identity of the author is established to the satisfaction of the Copyright Board by
that author. For either of these circumstances to exist, it is necessary for the author to make
the claim, which of course he can only do while he is still alive. It would, thus, appear to be
the intention of the statute that the benefit of extension of the term to sixty years p.m.a. rather
than from the date of publication should be available only if the anonymous/ pseudonymous
author of the work—or at least one such author in the case of a work of joint authorship—
himself participates in the disclosure of his identity. It is reasonable that this should be so,
since it would be inconsistent with an author’s own decision, to conceal his identity, to base
the term of copyright on such identity rather than on the date of publication.
Limitations on exclusive rights

The traditional exceptions: Copyright confers a wide range of rights on authors. It is

necessary, therefore, to allow for exceptions, special cases where these rights do not apply:
normal life would be difficult without such exceptions. As when we discussed protected
works and exclusive rights, it will be convenient to use the provisions of the Berne
Convention as a basis for discussion.

· News & quotations: These are the two exceptions, which the Convention provides for
directly rather than leaving the matter to national law. Article 2(8) excludes ‘news of the day’
and ‘miscellaneous facts having the character of mere items of press information’.

⋅ Facts are not a subject matter of copyright anyway; the intention here is that a news report
must do something more than simply telling the facts for it to qualify as a work; whether
it shows sufficient intellectual contribution for the purpose must remain a question for the
courts to consider in a particular case.
⋅ Article 10(1) permits the reproduction of extracts (not necessarily verbal) from a work
already lawfully available to the public if (a) they are ‘compatible with fair practice’ and
(b) they are not longer or larger than necessary. An author can fairly use extracts from the
work of others to bring home or illustrate a point, not as a substitute for his own labour or
want of ingenuity.

· Exceptions left to national legislation: Article 9(2) leaves it to national legislation to allow
the reproduction of protected works ‘in certain special cases’ subject to two further
conditions,

(a) that it does not conflict with a normal exploitation of the work and

(b) that it ‘does not unreasonably prejudice the legitimate interests of the author’.

The most obvious example that will spring to mind is the reproduction of a work, or part of a
work, for one’s own private reference or use.‘Normal exploitation’ means the ways in which
the author is normally able to use his copyright: a novel is exploited by allowing the
publication and sale of copies of it, or permitting a film to be made of it; a cinematograph
work in turn is normally exploited by showing it in theatres, selling video rights and allowing
it to be broadcast and transmitted by cable, etc.
The term ‘unreasonable prejudice’ implies that some prejudice is inevitable, and therefore
that it should be minimized, e.g. by restricting the number of copies that may be reproduced,
etc. The national legislature is obliged by the Convention to consider these factors while
enacting legislation on the subject.

Besides this general provision, the Convention also leaves certain kinds of limitation on
exclusive rights specifically to national legislation, viz. the reproduction of official texts (like
laws and other official documents like legislative and court proceedings etc.); political
speeches and speeches delivered in the course of legal proceedings; public lectures, addresses
and other works of the same nature; articles on current economic, political or religious topics
which have already been published in newspapers or broadcast; the reproduction of works
seen or heard during an event, for the purpose of reporting the event; and the use of works by
way of illustration for purposes of teaching, if justified by the purpose and compatible with
fair practice.

· ‘Fair dealing’ or ‘fair use’ in the common law countries: Discussion of the subject would
be incomplete without reference to these terms—the former British and the latter American—
which are commonly used and widely understood in the common law countries. They broadly
cover the kinds of cases we have been discussing, establishing principles of fair play through
a considerable body of case law.

Rights of Copyright owners under the Indian Copyright Act:

Section 14 of the Copyright Act, 1957, which lists out the rights conferred by the said Act, is
entitled ‘The meaning of copyright’. These exclusive rights are negative in character, in that
the author’s exclusive rights enable him to prevent others from exercising them without his
consent: his own right to circulate or exhibit his work must remain subject to national law or
regulation. (Berne Convention, Article 17) Thus if the Government of the author’s own or
another country bans the circulation of a book, this will not be regarded as infringement of
the author’s copyright.

The author’s exclusive rights are, further, grouped under two major heads, economic rights
and moral rights. The term ‘copyright’ as used in the Copyright Act, 1957 and defined in
section 14 is limited to the economic rights; moral rights are provided for separately in
section 57 as the ‘author’s special right’. Section 14 of our Act covers all the economic rights
provided for in the Berne Convention and the TRIPS Agreement except for droit de suite,
which is an optional right but which is provided for in section 53A of our Act as the ‘resale
share right’.

Economic rights

Under Berne Convention: It will be convenient to first consider the more ‘traditional’
economic rights, and then go on to those which are in process of being introduced in
consequence of more recent developments, notably advances in digital technology. The
former are, in general, those found in the Berne Convention.

· The right of reproduction: This is the most basic of the author’s rights. Article 9 gives
authors an exclusive right to authorise the reproduction of their works ‘in any manner or
form’ and also specifies that a sound or visual recording of a work is reproduction.
Reproduction may be direct (i.e. of a work) or indirect (of a reproduction of the work).

· The rights of adaptation and translation, and the cinematograph right: We have seen that
the author of a derivative work enjoys a separate copyright in it. However, before creating
such a derivative work from an existing work, he requires permission from the author of the
existing work: the latter enjoys an exclusive ‘right of adaptation’ (Article 12) or, in the case
of a translation, an exclusive ‘right of translation’ (Article 8) which Article 11(2) also
specifically extends to the public performance of a translation. The right to make a
cinematograph film out of a pre existing work by adapting or reproducing it (Article 14) is of
a similar character.

· The right of distribution: The Berne Convention in fact makes specific reference to a
distribution right only incidentally in respect of cinematographic works; some national laws
use the term in a wider, more ‘open-ended’ way while others may not specifically use it all.
However it is normal—and necessary—for an author to enjoy an exclusive right over the
initial distribution of copies of his work; this flows logically from the right of reproduction.
After the first sale of a particular copy this right is normally said to have been exhausted: the
purchaser is free to resell or otherwise dispose of the copy he has bought.

· The right of public performance. The exclusive right to authorise the public performance of
a work (Article 11), including a translation of it, is of very basic importance to the authors of
those works—dramatic, dramatico-musical or musical—which are created primarily for such
performance. It is also very relevant to literary works (though in their case the Berne
Convention calls it a right of public recitation) and (Article 14) cinematographic works.

The question as to what constitutes a public performance is very important, as there is no

restriction on private performances. This has been left to national law, but it is generally
understood that by a private performance we mean one before an essentially domestic circle
of family and social acquaintances. The mere fact that the public does not have free access to
the venue of the performance is not sufficient to characterise it as a private performance—
consider, for example, the case of a hotel, or a hostel or hospital, making a performance
available through video to its guests or inmates in a lounge, or even in the privacy of their
rooms: it would not be usual, nor would it be reasonable, to treat this as a private
performance.

Though it is not yet a requirement of any international convention, some countries provide
for a right of display of artistic works in public.

· The broadcasting right: Article 11bis gives authors the exclusive right to authorise the
broadcasting of their works by radio or television, or their communication to the public by
wire. This right extends to rebroadcasting and communication of the broadcast to the public
by other means like loudspeakers: thus the fact that an author has authorised a broadcast does
not authorise, say, a shopkeeper or restaurant owner to attract custom by making the
broadcast available by such means. The broadcasting right may, however, be subject to a
compulsory license.

· Droit de suite: This right, provided for in Article 14ter, is optional for member countries.
Where conferred, it gives the author of an artistic work an inalienable right to an interest (as
determined by national legislation) in any subsequent sale of the original work. Thus a
struggling young artist who sells his work cheap may hope to be rewarded by the
appreciation in its value in later years. This right also extends to the original manuscripts of
writers and composers.

Changes in economic rights arising out of recent developments: Advances facilitating the
reproduction of works, as well as the advent of digital technology, have also necessitated the
improvement or elaboration of existing ones.

⋅ The right of reproduction has been elaborated in some national laws to make it
explicit that the storing of a work by electronic means amounts to reproduction of it.
 ⋅ Rental rights in respect of computer programmes and cinematographic works are
required by the TRIPS agreement. The introduction of rental rights marked a
departure from the old exhaustion doctrine; it has been necessitated by the ease with
which the works to which it applies can be copied and illegal copies put to profitable
use.

The right of communication to the public (discussed under section 14 of the Copyright Act,
1957.)

Section 14 of the Copyright Act, 1957: As already stated, Section 14 provides for all the
economic rights covered by the Berne Convention except droit de suite and all the rights, in
the sphere of copyright as distinct from neighbouring rights, required by the TRIPS
Agreement. It also goes further than both international agreements in some respects.

· The right of reproduction: In the case of a literary, dramatic or musical work, other than
a computer program, the copyright owner enjoys the exclusive right to reproduce the work
in any material form, including the storing of it in any medium by electronic means.

⋅ Right to issue of copies: The copyright owner has the exclusive right to issue copies of the
work to the public not being copies already in circulation. Basically two sets of right
underlies, one is to bring the work to public for first time vests with the author of the
work and the other one is that if anyone other than the copyright owner issues the work to
the public without the authority of the owner he will be considered as an infringer.
⋅ Communication to Public Right: Communication to public is defined as: “Any work
available for being seen heard or otherwise enjoyed by the public directly or by means of
display directly or by any means of display or diffusion other than by issuing copies of
such work regardless of whether any member of the public actually sees, hears or
otherwise enjoys the work so made”. This right is fundamental to Copyright has emerged
as one of the economically powerful rights- especially to the music and film industry.
With new modes of exploitation in place, this right has been broadened than ever. The
question as to what constitutes communication to public depends on the particular act of
communication and who constitutes the “public”. The exhibition of any copyrighted work
in a closed circle of family or friends or personal viewing is outside the purview of
infringement and can be considered as fair use. Further some basic issues yet remain
unsettled since in the internet context it would be difficult to characterize the nature of
public.
⋅ To make cinematograph films and sound recording: A literary, dramatic or musical work
may be reproduced in the form of cinematograph film or sound recordings only with
license from copyright owner. But after the license is granted, there will be independent
copyright in the cinematograph film or sound recordings.
⋅ Translation: To translate a work the license from the author is required but post
authorisation the translation also gets independent copyright protection.
⋅ Adaptation/ abridgment of the work: The author of literary, dramatic and musical works
gets the adaptation and abridgment of the work.
Moral rights

In countries of the ‘civil law’ school, copyright has tended to be seen fundamentally as a
matter of the human rights and dignity of the individual author—the French term for
copyright means literally ‘author’s right’. An author’s work is thought of as an extension of
his unique personality, therefore it is not enough to see that he is compensated for its
exploitation materially: his enduring spiritual link with the work of his creation also has to be
respected and safeguarded. Article 6b of the Berne Convention reflects this approach; it is
interesting that some major countries of the ‘common law’ school still do not provide for
moral rights in their copyright laws, but meet their obligations under this article by virtue of
remedies available to authors under their general law relating to such matters as contract,
unfair competition and defamation.

· The right of paternity: This is the right to claim authorship of the work; exercise of this right
involves the author’s right to have his name appear at an appropriate place on copies of the
work (or not appear on them if he prefers anonymity or the use of a pseudonym) and a right
to prevent others from claiming authorship of his work. His authorship must also (under
Article 10(3)) be acknowledged in the case of quotations from, or other free use of, his work.

· The right of integrity: This is the author’s right to ‘object to any distortion, mutilation or
other modification of, or other derogatory action in relation to’ his work ‘which would be
prejudicial to his honour or reputation’. This does not give the author a free hand to object to
any alteration, adaptation or editing of his work but only to those which are considered (by
the author and then the court) to be derogatory to the work and prejudicial to his honour and
reputation. It is not always a simple matter of preventing mere malicious acts, rather works
may be altered merely in an effort to ensure their continued marketability. The integrity right
has grown in importance with the greater potential for manipulation of a work by digital
means: as we shall see, a moral right for performers has been justified largely on this ground.

· Moral rights independent of economic rights: Moral rights being necessarily of a character
personal to the author, he retains them even if he has transferred his economic rights. He must
certainly retain them during his lifetime; countries which do not provide for a longer term at
the time of accession to the Convention are exempt from the normal requirement that moral
rights shall be maintained at least until the expiry of economic rights. (This exemption was
necessary because, as we have seen, some countries provide for moral rights indirectly
through their existing laws; the remedies available under such laws—for example of
defamation— may not be available after the author’s death.) It should be added here that
moral rights are regarded as inalienable in some countries, though not necessarily so in
others.

· Other moral rights: The two rights incorporated in Article 6bis are by no means the only
possible moral rights. One which was originally proposed, but which it was not found
practicable to include in the Berne Convention was a right of divulgation i.e. an author’s right
to decide when and how his work should be made public. Further, under some national laws,
an author has a right to withdraw a work even after it has been published.

Section 57, Copyright Act: Section 57 of the Copyright Act, 1957 provides for the two
forms of moral right mandated by the Berne Convention in substantially the same terms as
the Convention. Under our Act, these rights are termed the ‘author’s special right,’ the term
‘copyright’ being reserved for economic rights. We may note the following additional points
about this provision:

· The right of integrity may be exercised only before the expiration of the term of copyright,
but there is no such restriction on exercise of the right of paternity.

· Failure to display a work, or to display it to the author’s satisfaction, is not an infringement

of the author’s special right (Explanation to section 57). The most obvious application of this
is to artistic works: a painter or sculptor, for example, would not be able to complain that his
work had not been displayed, or displayed with sufficient prominence, by the owner of the
original or any copy of it.

· The adaptation of a computer program to utilise it for the purpose for which it was supplied
(interoperability) or for purposes of backup would not infringe the author’s special right. This
may seem too obvious to have needed inclusion in the Act, but has clearly been inserted to
prevent any possible obstruction of such legitimate adaptations to computer programs.

Limitations on exclusive rights under the Copyright Act, 1957 (section 52):

Section 52, entitled ‘Certain acts not to be infringement of copyright’ is the longest section in
the Copyright Act, far longer than section 14, which enumerates the exclusive rights of
copyright owners.

Sub-section (1) lists the non-infringing acts while sub-section (2) extends the applicability of
the exceptions listed in sub-section (1) to the same acts if done in relation to a translation or
adaptation, as may be the case, of a literary, dramatic, musical or artistic work.

The length of section 52 does not mean that there are too many exceptions, but is merely
because, while the rights conferred are general in nature (like the right to reproduce a work in
material form), the exceptions have to be specific (like the right to reproduce a work for
personal use, or the use of a legislature or a court, etc) and, therefore, have to be spelt out in
full.

· Fair dealing: The term fair dealing is used in clauses (a) and (b) of sub-section (1). The
American term ‘fair use’, which is often used in discussion of copyright law, is
interchangeable with ‘fair dealing’. This is a general term, developed through case law, for
cases where an author uses another work, not to exploit the latter directly but to make an
acceptable use of it for the purposes of his own work; it would not be fair dealing to use so
much of the other work, or to use the other work in such a way, as to create a substitute for it.

Examples of such fair dealing include the use of quotations or extracts to illustrate or
corroborate a point being made in one’s own work: but a line would have to be drawn
between this legitimate activity and the inclusion of extracts from another’s work as a
substitute for creating one’s own expression.

Another long-established form of fair dealing is parody: this is a legitimate form of criticism,
a parody is very much an original work, yet by its very nature it must make use of the work
parodied.

The exceptions under Section 52 include:

Fair dealing for private use including research, criticism or review, for reporting current
events, etc.

In the case of computer programs, for purposes of interoperability, reverse engineering
and back-up; and any copies made for personal, non-commercial use.

Reproduction for the use of courts and legislatures; the reproduction of public
notifications; the reproduction of Acts of legislatures with commentary.

Use in educational institutions or in the course of education, in the specific cases spelt out
in section 52.

Cover versions’ referred to in section 52(1)(j); this is discussed further below.

The playing of sound recordings as a common facility in non-commercial places of
residence or non-profit clubs etc.; amateur performances for non-paying audiences;
similar acts in the course of official functions.

The two-dimensional reproduction of architectural works and of other artistic works if
they are permanently situate in public places.

The above list is purely descriptive and, further, it should be noted that the precise scope of
exemption would be limited strictly to the actual language of the statute, which must be
referred to.

Cover versions (section 52(1)(j)) are an example of a statutory licence: i.e. an instance where
the law itself confers a licence for the use of a copyrighted work in certain circumstances, and
subject to certain conditions,. As the provision has been controversial in India, it merits some
discussion here.

To understand the background, we may refer to Article 13(1) of the Berne Convention,
which reads as follows: ‘Each country of the Union may impose for itself reservations and
conditions on the exclusive right granted to the author of a musical work and to the author of
any words, the recording of which together with the musical work has already been
authorised by the latter, to authorise the sound recording of that musical work, together with
such words if any; but all such reservations and conditions shall apply only in the countries
which have imposed them and shall not, in any circumstances, be prejudicial to the rights
ofthose authors to obtain equitable remuneration which, in the absence of agreement, shall be
fixed by competent authority.’

Under section 52(1)(j), if a sound recording of the work has been made with the consent of
the rights owner, then another person intending to make another sound recording of it has
only (subject to certain conditions that will be discussed below) to give the rights owner
notice of his intention, provide him with copies of all covers and labels, and pay royalty as
prescribed by the Copyright Board.

The rationale for this provision is that once a sound recording of a musical work or of a
song—which is a musical work (the tune) combined with a literary work (the lyric)—has
been published, others should be able to record other performances of the same music or song
and sell such recordings; they must pay a royalty to the copyright owners but should not be
prevented from making such‘cover versions’ and it must be reasonably convenient for them
to do so. This is one of the ways in which copyright law seeks to balance the interests of
rightsholders with those of the general public: popular songs are part of the common popular
culture and to that extent may be thought of as belonging in some sense to the public, even
though they may not have fallen into the public domain.

The same objective can be achieved without a statutory licence if there is an effective
copyright society from which licences for ‘cover versions’ can be obtained without undue
difficulty. This is the case in many countries. However in the United States as well as in
India, the statutory licence for cover versions continues.

In India the main criticism of the provision is that it is misused: the makers of the cover
version may (and in fact often do) grossly understate the number of copies they intend to
make, and thus fail to pay proper revenue. They also sometimes mislead the public into
buying their product under the impression that it is the original version.

Some safeguards, to deal with this, are built into the statute: no misleading labels or
packaging; no cover version until two years after the first recording; the rights owner is
allowed to inspect the records and accounts of anyone making cover versions; and recourse to
the Copyright Board.