INTELLECTUAL PROPERTY RIGHTS – II

UNIT 1: COPYRIGHT & RELATED RIGHTS

1. What is copyright? Explain the works in which copyright subsists.
The law does not permit one to appropriate to himself what has been produced by the labour, skill
and capital of another. This is the very foundation of copyright law. The object of copyright law is to
protect the author of the copyright work from an unlawful reproduction or exploitation of his work
by others. Copyright protection is essential to encourage exploitation of copyright work for the
benefit of the public. Copyright law is in essence concerned with the negative right of preventing
copying of physical material existing in the field of literature and the arts. Copyright protection exists
from the moment a work is created in a fixed, tangible form of expression. The copyright
immediately becomes the property of the author who created the work. Only the author, or those
deriving their rights through the author, can rightfully claim copyright. In the case of works made for
hire, the employer—not the writer—is considered the author.

There is no copyright in ideas; copyright only subsists in the material form in which the ideas are
expressed. It is not an infringement of copyright to adopt the ideas of another. Copyright does not
ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases,
methods, plots or factual information. Copyright does not protect ideas or concepts.
Works in which copyright subsists:
a) Original literary, dramatic, musical and artistic works;
Section 13(1) provides that, copyright shall subsist in the following classes of works, that is to say.
“Literary work” includes computer programmes tables, compilations including computer database.
“dramatic work” includes any piece of recitation, choreographic work or entertainment in dumb
show, the scenic arrangements or acting, form of which is fixed in writing or otherwise but doesn’t
include a Cinematograph films.
“musical work” means a work consisting of music and includes any graphical notation of such work
but doesn’t include any words or any action intended to be spoken, sung or performed with the
music.
“Artistic work” means painting, a sculpture, a drawing, an engraving or a photograph, whether or
not any such work possess artistic quality, a work of architecture and any other artistic
craftsmanship.

(b) Cinematograph films;

Cinematograph films means any work of visual recording and includes a sound recording
accompanying such visual recording.

(c) Sound recordings

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

(d) Video recordings

Video recording has been added in the 2012 amendment

Qualification for copyright subsistence:

To qualify for copyright the work should be an original work, apart from that it should
also satisfy the following conditions:
1) The work is first published in India,
2) Where the work is first published outside India, the author at the date of publication must be an
Indian citizen.
3) In case of an unpublished work the author at the time of making the work should have been an
Indian citizen or domiciled in India.

4) In case of an architectural work of art, the work is located in India.

In case of works of joint authorship the conditions regarding nationality should be satisfied by all the
authors. (Sec 13(2))

Rights conferred by copyright:

Copyright is not a positive right but a negative right, which is the right to stop others from exploiting
the work without the copyright owners consent or licence.
Copyright is not a single right but a bundle of rights which can be exploited independently. Further,
the nature of these rights depends upon the category of work. the owner of the work may exploit
the work himself or licence others to exploit anyone or more of the rights for consideration in the
form of royalty or a lump sum payment.

There are two types of rights that an owner of copyright gets:

1. Moral rights: Sec 57 of the Copyright Act, 1957 provides for what are
termed as “Author’s Special Rights,” better known as “Moral Rights.”
These rights remain with the author even if he after the transfer of copyright and the protection lasts
during the whole of the copyright term. If the author desires to transfer these rights also he can do
so specifically in writing in the deed of assignment.
(a) To claim authorship of the work; and
(b) To restrain or claim damages in respect of any distortion, mutilation, modification or other act in
relation to the said work which is done before
the expiration of the term of copyright if such distortion, mutilation, modification or other act would
be prejudicial to his honour or reputation:
Amar Nath Seghal v. Union of India, In this case, the plaintiff/author assigned his copyright in a
bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled
down and dumped. The author, Amar Nath Seghal, sued for violation of his moral rights.

The case was filed in the early 90’s and an interim injunction was passed in favour of the Plaintiff. In
response, the defendants made an application under the Arbitration Act, 1940 seeking stay of
proceedings in the suit claiming that the dispute ought to be referred to arbitration in the light of a
term in the assignment requiring arbitration of all disputes.
The defendants further argued that “the plaintiff had assigned his copyrights to the defendants and
having purchased the same, the defendants are under no fetters while dealing with the mural in
question.”

The interim application was decided in 2002 and the case itself was finally decided in 2005. The
court dismissed the claim under the Arbitration Act and further observed: “These [moral] rights are
independent of the author’s copyright. They exist even after the assignment of the copyright, either
wholly or partially.” The court quoted from Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and
Anr. (1986): “Section 57 confers additional rights on the author of a literary work as compared to the
owner of a general copyright. The special protection of the intellectual property is emphasised by the
fact that the remedies of a restraint order or damages can be claimed “even after the assignment
either wholly or partially of the said copyright.” Section 57 thus clearly overrides the terms of the
Contract of assignment of the copyright. To put it differently, the contract of assignment would be
read subject to the provisions of Section 57 and the terms of contract cannot negate the special
rights and remedies
 guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be
consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based
on the contract which are inconsistent with the provisions of Section 57.”
Economic rights (sec 14)

Copyright means the exclusive right subject to the provisions of this act to do or authorize the doing
of the following in respect of a work or any substantial part:
In the case of a literary work, copyright means the exclusive right:
a) To issue copies of the work to the public.
b) To reproduce the work.
c) To perform the work in public.
d) To communicate the work to the public.
e) To make cinematograph film or sound recording in respect of the work
f) To make any translation of the work
g) To make any adaptation of the work.
h) In addition to all the rights applicable to a literary work, owner of the copyright in a
computer programme enjoys the rights to sell or give on hire or offer for sale or hire, regardless of
whether such a copy has been sold or given on hire on earlier occasion.

In the case of a dramatic work, copyright means the exclusive right:

a) To reproduce the work
b) To communicate the work to the public or perform the work in public
c) To issue copies of the work to the public
d) To include the work in any cinematograph film
e) To make any adaptation of the work
f) To make translation of the work.

In the case of a musical work, copyright means the exclusive right:

a) To reproduce the work.
b) To issue copies of the work to the public
c) To perform the work in public
d) To communicate the work to the public
e) To make cinematograph film or sound recording in respect of the work
f) To make any translation of the work
g) To make any adaptation of the work.

In the case of an artistic work, copyright means the exclusive right:

a) To reproduce the work
b) To communicate the work to the public
c) To issue copies of the work to the public
d) To include the work in any cinematograph film
e) To make any adaptation of the work.

In the case of a cinematograph film, copyright means the exclusive right:

a) To make a copy of the film including a photograph of any image forming part thereof
b) To sell or give on hire or offer for sale or hire a copy of the film
c) To communicate the cinematograph film to the public.

In the case of sound recording, copyright means the exclusive right to do:
a) To make any other sound recording embodying it.
b) To sell or give on hire, or offer for sale or hire, any copy of the sound recording.
c) To communicate the sound recording to the public.
2. Who is an infringer of copyright? What constitutes infringement? What are the remedies available
for infringement? Explain.
A simple definition of copyright is that it is a bunch of rights in certain creative works such a literary,
artistic works, music, computer programs, sound recordings and films. The people who are the
creators are usually called “authors” even if they are really painters, photographers, writers,
composers etc.
The owner of a copyright work has the exclusive right to do certain acts in respect of
the work. If any person does any of these acts without the authority he will be committing an
infringement of the copyright in the work. Copyright in a work is considered as infringed only if a
substantial part is made use of unauthorizedly. What is ‘substantial’ varies from case to case. More
often than not, it is a matter of quality rather than quantity. For example, if a lyricist copy a very
catching phrase from another lyricist’s song, there is likely to be infringement even if that phrase is
very short.
Sec 51 provides situations when copyright in any work is deemed to be infringed, they are as
follows:
i. When any person without license from the owner of the copyright, or the register of copyright, or
in contravention of the conditions of a licence granted or any conditions imposed by a competent
authority u/ the act,
ii. Does anything the exclusive right to do which is conferred upon the owner of the copyright, or
iii. Permits for profit any place to be used for the communication of the work, unless he was not
aware and had no reasonable grounds for believing that such communication to the public would be
an infringement of copyright,
iv. Where a person makes infringing copies for sale or hire or selling or letting them for hire,
v. Distributing infringing copies for the purpose of trade or to such an extent so as to affect
prejudicially the interest of the owner of copyright,
vi. Public exhibition of infringing copies by way of trade, and
vii. Importation of infringing copies into India.

Exceptions to infringement of copyright:

The copyright act provides certain exceptions to infringement. These are popularly called the
doctrine of fair dealing. Fair dealing is a limitation and exception to the exclusive right granted by
copyright law to the author of a creative work. It permits reproduction or use of copyrighted work in
a manner, which, but for the exception carved out would have amounted to infringement of
copyright. This doctrine is one of the most important aspects of Copyright Law which draws a line
between a legitimate, bonafide fair use of a work from a malafide blatant copy of the work.
The main idea behind this doctrine is to prevent the stagnation of the growth of creativity for whose
progress the law has been designed. They provide defences in an action for infringement of
copyright.
Section 52 gives a long list of acts which do not constitute infringement of copyright. Few of them are
as follows:
1) a fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme]
for the purposes of-
(i) private use, including research;
(ii) criticism or review, whether of that work or of any other work; "
(iii) the making of copies or adaptation of a computer programmer
(iv) to make back-up copies purely as a temporary protection against loss, destruction or damage in
order only to utilise the computer programme for the purpose for which it was supplied.
2) The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial
proceeding or for the purpose of a report of a judicial proceeding.
3) The reading or recitation in public of any reasonable extract from a published literary or dramatic
work.
4) Publication in a collection for the use of educational institutions in certain circumstances.
5) Reproduction by teacher or pupil in the course of instructions or in question papers.
6) Performance in the course of the activities of educational institutions in certain
circumstances.
7) The performance of a literary, dramatic or musical work by an amateur club or society,
if the performance is given to a non-paying audience, or for the benefit of a religious
institution.
8) The reproduction in a newspaper, magazine or other periodical of an article on current
economic, political, social or religious topics, unless the author of such article has
expressly reserved to himself the right of such reproduction.
9) The making of not more than three copies of a book (including a pamphlet, sheet of
music, map, chart or plan) by or under the direction of the person in charge of a public
library for the use of the library if such book is not available for sale in India.
10) Reproduction or publication of any matter published in official gazette or reports of
government commission or bodies appointed by government.
11) Reproduction of any judgment or order of court, tribunal or other judicial authority not
prohibited from publication.
12) Production or publication of a translation of acts of legislature or rules.
Remedies for copyright infringement:
The remedies for copyright infringement are: a) Civil (Section 55)
b) Criminal, (sec 63)and
c) Administrative

A. Civil Remedies:
The most importance civil remedy is the grant of interlocutory injunction since most actions start
with an application for some interlocutory relief and in most cases the matter never goes beyond the
interlocutory stage. The other civil remedies include damages – actual and conversion; rendition of
accounts of profits and delivery up.
a) Interlocutory Injuctions: The principles on which interlocutory injunctions should be
granted were discussed in detail in the English case of American Cyanamid v Ethicon Ltd. (1975).
After this case, it was believed that the classic requirements for the grant of interim injunction,
namely,
(i) Primafaciecase
(ii) Balance of Convenience; and (iii)Irreparable injury
b) Pecuniary Remedies: Under Indian law, however, there is a departure made and the plaintiff,
under sections 55 and 58, can seek recovery of all three remedies, namely (a) account of profits (b)
compensatory damages and (c) conversion damages which are assessed on the basis of value of the
article converted.
c) Anton Piller Orders: The Anton Pillar Order derives its name from a Court of Appeal decision in
Anton Pillar AG V. Manufacturing Processes [1976]. An Anton Piller Order
has the following elements:
i. An injunction restraining the defendant from dealing in the infringing goods or
destroying, them;
ii. An order that the plaintiffs solicitors be permitted to enter the premises of the
defendants, search the same and take goods in their safe custody; and
iii. An order that defendant be directed to disclose the names and addresses of suppliers and
customers and also to file an affidavit will a specified time giving this information.
i. Punishment through imprisonment which, under Indian law, may not be less than six months but
which may extend to three years;
ii. Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs.200,
000.
B. Criminal Remedies: Sec 63-70
Criminal remedies for copyright violation include:

iii. Search and seizure of the infringing goods including plates which are defined as including
blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to
be used for printing or reproducing copies of the work.
iv. Delivery up of infringing copies or plates to the owner of the copyright.
C. Adminsitrativeremedies:
Administrative remedies consist of moving the Registrar of copyrights to ban the import of infringing
copies into India when the infringement is by way of such importation and the delivery of the
confiscated infringing copies to the owner of the copyright and seeking the delivery.

3. Describe the various modes of transfer of copyright.

Nobody is entitled to copy, reproduce, publish or sell an original writing, painting, dramatic
production, sculpture, etc. without the permission of the creator. Thus, law provides a right to the
owner of the copyright (i.e. the creator) to transfer the ownership of the copyright to a third party.
For instance, in the case of making a complete movie – all the creative persons with their idea turned
into relevant works come to a producer, assign their rights that subsist in their work in return for a
royalty. These works are then summed up to form a complete movie.
a) Assignment of copyright: (SEC 18-20)
The owner of the copyright in an existing work or the prospective owner of the copyright in a future
work may assign to any person the copyright either wholly or partially and either generally or subject
to limitations and either for the whole term of the copyright or any part thereof.
The requirements for an assignment to be enforced are: (a) It must be in writing.
(b) It should be signed by the Assignor.
(c) The copyrighted work must be identified and must specify the rights assigned.
(d) It should have the terms regarding revision, royalty and termination.
(e) It should specify the amount of royalty payable, if any, to the author or his legal heirs.
(f) In the event the Assignee does not exercise the rights assigned to him within a period of one year,
the assignment in respect of such rights is deemed to have lapsed unless otherwise specified in the
Agreement.
(g) If the period of assignment is not stated, it is deemed to be five years from the date of
assignment, and if no geographical limits are specified, it shall be presumed to extend within India.
The Delhi High Court in Pine Labs Private Limited vs Gemalto Terminals India Limited the Court has
held that in case the duration of assignment is not specified, the duration shall be deemed to be five
years and after five years the copyright shall revert to the author. In this case, Pine Labs had written
some software for Gemalto under a Master Service Agreement (MSA).Though in the MSA Pine Labs
had assigned the copyright in the works to Gemalto, the period of assignment was not specified.The
Court held that though Gemalto may have paid for the software, Pine Labs, being the author was the
first owner of the copyright and after five
years, the copyright reverted to Pine Labs. It made no difference whether the MSA was treated
as an assignment or an agreement to assign.
b) Licence:
The owner of a copyright in any existing work or the prospective owner of the copyright in any
future work, may grant any interest in the right, by License in writing, signed by him or by his duly
authorized agent. The requirements specified above for an assignment will apply for a License. The
Copyright Board is empowered to grant compulsory licenses under certain
circumstances on suitable terms and conditions in respect of 'Indian work'.
The circumstances necessary for grant of such a License are as follows: (a) the work must have been
published or performed in public.

(b) the author must have refused to republish or allow the republication of the work or must
have refused to allow the performance in public, that by reason of such refusal the work is withheld
from the public;
(c) the author must have refused to allow communication to the public by broadcast, of such work or
in the case of a sound recording the work recorded in such sound recording, on terms which the
complainant considers reasonable.
The Copyright Act states that in the case of unpublished Indian work, where the author was a citizen
of India or is dead, unknown or cannot be traced, under such circumstances, any person may apply
to the Copyright Board for a License to publish the work or translation thereof in any language
according to the procedure laid down in the Act.
Compulsory licence:
Section 31: Section 31 of the Copyright Act, 1957 deals with the grant of compulsory licenses in
respect of certain works withheld from the public. Under this section, if the owner of the copyright in
an Indian work refuses to republish or allow the republication of such work or if he refuses to allow
the performance of the work in public, and, if by reason of such refusal, the work is withheld from
the public, a complaint may be made for the grant of a compulsory license.
Similarly if the copyright owner has refused to allow a work including one recorded in a sound
recording to be communicated to the public by broadcast on terms which the complainant considers
reasonable, a complaint may also be made. Thus, the Copyright Board may only go into such issues
as whether the price is too high in respect of works which are broadcast, and not in other cases.
Once a complaint is made, the Copyright Board would be required to give the copyright holder
reasonable opportunity of being heard and, on the basis of an inquiry, the Board may direct the
Registrar of Copyrights to grant to the complainant a compulsory license.
It has been proposed to amend Section 31 of the Copyright Act so that a compulsory license may be
granted under this Section in respect of not merely an Indian work but in respect of any work.
Considering that a compulsory license may be granted in respect of any work, it

has been proposed to delete the explanation which defines what an Indian work is for the
purposes of this Section. Further, it has been proposed to allow for the grant of a compulsory license
under this Section not specifically to the complainant but to any person(s) who, in the opinion of the
Copyright Board, is or are qualified to publish the concerned work. In order to do this, it has also
been proposed to delete subsection (2) of Section 31 so as to allow for a compulsory license to be
granted by the Copyright Board to more than one person.
Section 31A: Section 31A of the Copyright Act, 1957 deals with the grant of compulsory licenses with
respect to unpublished Indian works. It has been proposed to amend section so as to considerably
widen its scope. It has been proposed to do this by substituting the existing Section 31A(1) with a
new provision which would read as follows:
Where, in the case of any unpublished work or any work published or communicated to the
public and the work is withheld from the public in India, the author is dead or unknown or cannot be
traced, or the owner of the copyright in such work cannot be found, any person may apply to the
Copyright Board for a licence to publish or communicate to the public such work or a translation
thereof in any language.
4. Discuss the Powers & Functions of Copyright Board
The Copyright Board, a quasi-judicial body, was constituted in September 1958. The jurisdiction of
the Copyright Board extends to the whole of India. The copyright board is a body constituted by the
central govt. to discharge certain judicial function under the Act. The Board is entrusted with the task
of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of
Licenses in respect of works withheld from public, unpublished Indian works, production and
publication of translations and works for certain specified purposes. It also hears cases in other
miscellaneous matters instituted before it under
the Copyright Act, 1957
It consists of a chairman and not more than fourteen other members. The Chairman and the
members shall hold their office for five years. They may be reappointed on the expiry of the tenure.
The chairman of the copyright board must be a person who is or has been judge of a
High Court or is qualified for appointment as a judge of a High Court. There is no qualification
mentioned about the members of the Board.

The Registrar of Copyright also plays a very important role. The Registrar of the copyright board
will perform all secretarial functions of the copyright board. The Registrar of the Copyright is the
authority under Section 9 of the Act who is the officer of the Copyright Office. The Registrar of
Copyright has powers of the civil court. And every order made by the registrar of payment of money
is deemed as a decree of a civil court and is executed as decree of such court.
Powers of Copyright Board
The copyright board has been constituted to perform judicial functions.
Therefore, the copyright board has been accredited with the powers of civil court for the purpose of
Sec. 345 & 346 of the Code of Criminal Procedure, 1973. All proceedings of the court are judicial
proceedings within the meaning of Sec. 193 & 228 of Indian Penal Code, 1860. In exercise of the civil
court power, the copyright board may issue summons and enforce the attendance of any person and
may examine him on oath, requiring the discovery and production of the document, receiving
evidence on affidavit issuing commission for the examination of witness and documents and
requisitioning public record or copy thereof from any court.
The Registrar of Copyright and the Copyright Board have the powers of a civil court in respect
of the following matters:
(a) Summoning & enforcing the attendance of any person and examining him on oath (this
jurisdiction extends to the whole of India);
(b) Requiring the discovery and production of any document; (c) Receiving evidence on affidavit;
(d) Issuing commission for the examination of witnesses and document;
(e) Requisitioning any public record or copy thereof from any court or office;
(f) Any other matter which may be prescribed.

Functions of Copyright Board

The first and foremost function of the copyright board is to look after whether the provisions of the
Act are followed without any violation or infringement and to adjudicate certain cases pertaining to
copyrights.
Other than this, the copyright board has been provided direct jurisdiction in relation to matters: (1)
To decide the issue of publication and its date in order to determine the term of copyright
(2) To decide the term of copyright which shorter in any other country than that provided in respect
of that work under the Act (The decision of the Copyright board on the above question will be final)
(3) To settle disputes related to assignment of copyright
(4) To grant compulsory licenses for Indian work
(5) To grant compulsory licenses to publish the unpublished work
(6) To grant compulsory licenses to produce and publish translation of literary and dramatic
works
(7) To grant compulsory licenses to reproduce and publish certain categories of literary, scientific or
artistic works for certain purposes
(8) To rectify the Register of copyrights on the application of registrar of copyrights or any aggrieved
persons
Other than this, another important function of Copyright Board is carried out by the Registrar of
Copyright Board. The Registrar maintains a Register of Copyrights containing the names or
titles of works and the names and addresses of authors, publishers and owners of copyright and
other particulars as may be prescribed. The Register of Copyright will be kept in six parts as follows:
Part I – Literary works other than computer programs, tables and compilations including computer
databases and dramatic works.

Part II – Musical works

Part III – Artistic works
Part IV – Cinematograph films
Part V – Sound recordings
Part VI – Computer programs, tables and compilations including computer databases.
Note: As per Sec. 50A of the Act every entry made in the Register of Copyright should be published
in the official gazette or in such manner as the registrar may deem fit.
Registration of Copyright: registration of copyright is not compulsory under sec. 44 of the Act. The
registration is neither required for acquiring copyright nor for enforcement. Registration is merely a
piece of evidence as to when certain author started claiming copyright in the artistic or other work.
Procedure of Copyright Board
The copyright board has power to regulate its own procedure, including the fixation of places and
times of its sittings. This is subject to the Copyright Rules, 1958. Ordinarily it will hear
any proceeding instituted before it within the zone in which the person instituting the proceedings
actually and voluntarily resides and carries on business or personally works for gain. For this purpose
the territory of India has been divided into five zones – The northern, southern, eastern, western and
central zone. The Copyright Board functions in five zones. The Board discharges its functions through
the Benches constituted by the Chairman, and the Chairman constitutes benches from amongst its
members, each bench consisting of not less than three members. If the matter of dispute is of
utmost importance, the Chairman of the Board may constitute a bench consisting of five members. If
there is any difference of opinion among
the members of the Bench, the opinion of majority shall prevail. If there is no such majority, the
opinion of Chairman will prevail.
Further, the Chairman may authorize any of its members to exercise any of the powers conferred on
it by provision of Sec. 74 of the Act and any order or act done in the exercise of these powers by the
member so authorized will be deemed to the order or act, as the case may be of the Board.

Also, no member of Copyright Board should take part in any proceedings before the Board in
respect of a matter in which he has a personal interest.
Appeal (Sec. 71-73 of the Act): An order of the registrar may be appealed within 3 months to the
Copyright Board and any decision or order of the Board may be appealed to the High Court within 3
months.
No appeal lies against the order of the Copyright Board for the determination of issue related
to the term of the copyright in other countries.
The jurisdiction of High Court in appeal is determined by the place where the appellant actually or
voluntarily resides or carries on business or personally works for gain. Further, the word resides,
refers only to natural person and not to legal persons like companies or government. This is why the
firm or companies whether they carry on business at a particular place is a question of fact.
Civil courts have no jurisdiction to rectify the copyright register. And the Copyright Board has no
powers to limit the user of copyright to any particular territorial area.
Further, In Mukherjee vs. State it was held that while exercising its jurisdiction under section 19A
relating to settlement of disputes arising out of assignment of copyright, the Copyright
Board has no power to decide whether there was any infringement of copyright.
Hence, registrar functions as single arbitrator. And the appeals against his orders are made to the
board. Thus, the mechanism under the Act is – administrative, quasi-judicial and judicial.
5. Explain Related Rights under copyright.
I. Rights of broadcasting organization- sec 37
Every broadcasting organization will have a special right known as broadcasting reproduction right in
respect of its broadcasts. This right will subsist for 25 years for the year of
Related rights are the rights that have their special subject matter, which is mainly related to
copyright. With regard to the similar subject matter, they are also called the rights related to
copyright or simply related rights. With regard to the fact that they are close to copyright they are
also called the rights neighboring to copyright. According to the copyright act they include:

broadcasts. During this period if anybody does the following acts without license from the
owner of the right he will be deemed to have infringed the broadcast reproduction right:
a) Rebroadcasts the broadcast,
b) Causes the broadcast to be heard or seen by the public on payment of any charges,
c) Makes any sound recording or visual recording of the broadcast,
d) Makes any reproduction of such sound recording or visual recording where such initial recording
was done without license or where it was licensed for any purpose not envisaged by such license,
e) Sells or gives on commercial rental or offer for sale or for such rental ant such sound recording or
visual recording referred in clause c or d.
II. Performers right sec 38
Performer's rights for the benefit of various kinds of performers like actors, dancers, musicians,
jugglers, acrobats and so on are contained in Sec 38. These rights are somewhat analogous to
broadcast reproduction rights.
The performer’s rights will subsist for 50 years from the year of performance.
Exclusive right of performers sec 38A
Performer's have the exclusive right to do or authorize the doing of any of the following acts-
a) To make a sound recording or a visual recording of performance, including-
a) Reproduction of it in any material form including the storing of it in any medium by electronic or
anyother means,
b) Issuance of copies of it to the public not being copies already in circulation,
c) Communication of it to the public,
d) Selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the
recording,
2) To broadcast or communicate the performance to the public expect where the performance is
already broadcast.

Once a performer has consented by written agreement to incorporate his performance in a

cinematograph film, in absence of any contract to the contrary, he shall not object to enjoyment by
producer of the film of the performers right in the same film.
Moral rights of the performer sec 38B
The performer shall even after assignment of his right, either wholly or partially have the right to-
1) To claim to be identified as the performer of his performance expect where omission is dictated by
the manner of the use of the performance
2) To restrain or claim damages in respect of any distortion, mutilation or other modification of his
performance that would be prejudicial to his reputation.
6. Explain Copyright Societies
Copyright Society is a legal body which protects or safeguards the interest of owners of the work in
which Copyright subsist. The Copyright Societies gives assurance to the creative authors of the
commercial management of their works.
The authors of creative works license a publisher to publish the work on a royalty basic. This also
leads to infringement of the work anywhere in India or abroad therefore it is extremely difficult for
the owner of the work to prevent from such infringement. To overcome such difficulty owners of
Copyright works have formed Societies to license their works for performance or communication to
the public or issue copies of the work to the public. ‘Copyright Society’ means a society registered
under Section33 (3).
The Copyright societies are also authorized to watch out for infringement of the Copyright and take
appropriate legal action against the infringers.
Functions of a copyright society:
The Copyright Societies discharge the following functions:
1. It grant license of the Copyright in the work for reproduction, performance or communication to
public.
2. It locates the infringement of the Copyright and initiates legal proceedings.

To regulate these activities of such Copyright societies Sections 33 to 36A have been enacted
under the Copyright Act 1956.
Statutory Provisions:
Section 33(1) provides that no person or association of person allowed to carry on the business of
issuing or granting licenses in respect of any work in which Copyright subsists or in respect of any
rights conferred by the Act except under a registration.
However the owner of Copyright in his individual capacity will continue to have the right to grant
licenses in respect of his own works with his obligation if any as a member of the registered
Copyright Society.
An application may be made to the Registrar of Copyright. Every application should satisfy the
conditions. And then the Registrar shall forward the application to the Central Government which
may, having regard to the interests of the author and other owner of rights under this Act, the
interest and convenience of the public and in particular of the group of persons who are most likely
to seek licenses in respect of the relevant rights and the ability and professional competence of the
applicants, register such association of persons as
a Copyright Society subject to conditions as may be prescribed.
Central Government shall not ordinarily register more than one Copyright Society to do business in
respect of the same class of works.
Section 33(4) states that the Central Government, if satisfied that the Copyright Society is
detrimental to the interest of the owners of rights concerned. Then in this case the Central
Government cancel registration of such society after such inquiry as may be prescribed.
Illustration Problems Relating to Unit I
1. A public library gets a copy of a book authored by a foreigner author published abroad. Due to
high price of the book, the library gets 6 copies of the books made. Is the library guilty of
infringement?

Yes, the library is guilty of infringement.

Sec 52 of the India copyright act lays down certain exceptions to copyright infringement called fair
dealing, and sec 52 (o) says, that the making of not more than three copies of a book (including a
pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a
public library for the use of the library if such book is not available for sale in India is fair dealing.
In this above case the library has made 6 copies of the books whereas the act allows only 3 copies
and thus the library is guilty of copyright infringement.
2. A photographer claims copyright in his photograph of a girl carrying a pitcher pleading that his skill
and labour is involved in choosing the exact moment and the setting up of the photograph. Will his
claim for a copyright succeed?
Yes his claim for copyright can succeed as he has put in his skill and labour in taking that photograph.
Photographs are protected as artistic work u/s 2(c) of the copyright act. For obtaining copyright
protection the photograph must be original and to be original some degree of skill and effort must
have been expended on it. A photograph of an existing photograph is not entitled to copyright
protection because it is a mere copy.
 3. A journalist highlighted the flesh trade flourishing in some parts of the country in
his article and published it in the newspaper. A producer made a stage play and a movie based on
the articles published by the journalist. Can the journalist bring action against producer for
infringement?
No. The journalist cannot bring any action against the producer for infringement. Newspaper is
accessible to everyone. There is no copyright for articles published in newspapers. This is as per Sec.
52(1)(m) of the Copyright Act.
Sec. 2(ff) defines “communication to the public”. It means making any work available for being
seen or heard or otherwise enjoyed by the public 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 available.
Sec. 13 (3) explains the meaning of publication. Publication means making a work available to
the public by issue of copies or by communicating the work to the public.

Sec. 52 (1) reads - The following act shall not constitute an infringement of copyright namely-
Sec. 52 (1) (m) the reproduction in a newspaper, magazine or other periodical of an article on current
economic, political, social or religious topics, unless the author of such article has expressly reserved
to himself the right of such reproduction.
Sec. 52 (1) (n) The publication in a newspaper, magazine or other periodical of a report of a lecture
delivered in public
In the above problem, ‘A’, the journalist highlighted flesh trade flourishing in some parts of the
country in his article and published it in the newspaper.
Thus it is a publication u/s Sec. 13 (3). As per Sec. 52(1)(m), since the journalist has not expressly
reserved to himself the right of such reproduction, there is no copyright in the article published in
the new paper.
Further as per Sec. 52(1)(n), the publication in a newspaper, magazine or other periodical of a report
of a lecture delivered in public, if copied in any manner, is not infringement of copyright. So, any
person can copy the contents of the article.
In the given problem, the producer has made a ‘stage play and movie’ based on the articles
published by the said journalist, which is not an infringement of copyright. So the journalist
cannot bring action against the producer for infringement.
4. Three people take photograph of the ‘Taj Mahal’ from three different cameras. Is each of them
entitled to a separate copyright for his photograph? Give reasons.
Section 52 speaks about the acts which do not constitute infringements of copy right.
As per Sec. 52(1)(s) of the Indian copy right Act,1957, the making or publishing of a painting,
drawing, engraving or photograph of an architectural work of art is not an act of infringement.
Sec. 52(1)(t) of the Act further reads - The making or publishing of a painting, drawing, engraving or
photograph of a sculpture, or other artistic work falling under sub clause (iii) of clause (c) of Section
2, if such work is permanently situate in a public place or any premises to which the public has
access.
Sec 2(c)( iii ) reads- Artistic work means any other work of artistic craftsmanship.

In the given problem, three people take the photograph of the Taj Mahal from three different
cameras. None of them is entitled to any separate copyright for his photograph, because Taj Mahal
being an architectural work of art for which no copy right is available and copying such photograph is
not infringement as under Sec 52(1)(s) and Sec. 52(1)(t) of the Act.
5. A biology teacher in a college collects the articles written by researchers on cloning and circulates
the same amongst his students. Is he guilty of infringement?
Yes he is guilty of infringement.
To reproduce and to issue copies of the work to the public is an exclusive write of the copyright
holder and any person doing this without consent or license from the copyright holder will be guilty
of infringement.
In this case the biology teacher cannot plead of fair dealing. A fair dealing of a work is permitted for
research, private study, criticism or review of for reporting current events in a newspaper or
broadcast or in a cinematograph film or in a photograph. If the teacher makes copies of the work and
keeps it for his private study he can plead for fair dealing but here the teacher by making copies of
the work and issuing it to the students cannot plead for fair dealing and is thus guilty of
infringement.
6. The pieces of sculpture outside the National Museum are photographed by an amateur
photographer and the same are sent for photograph contest. Can the National Museum bring an
action for infringement? Give reasons.
The National Museum cannot bring an action for infringement of Copyright for the amateur
photographer taking photographs of pieces of sculpture outside the National Museum and sending
the same for photograph contest.
This is as per Sec. 52 (1) (m) of the Copyright Act, 1957, which reads –
The following act shall not constitute an infringement of copyright namely-
– ‘The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other
artistic work if such work is permanently situate in a public place or any premises to which the public
has access’.
In the above problem, the amateur photographer can very well take photograph of a sculpture
outside the National Museum which is permanently situate in a public place and since it is National
Museum to which the public has access and it is not infringement of copyright.
1. What is Copyright? Explain the salient features of Copyright Act.
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work.
A Copyright is a collection of exclusive rights which are vested in the owner of the copyright,
according to Section 14 of the Copyright Act, 1957. These rights can only be exercised by either the
owner of the copyright or by any other person who is licensed, according to law, in the same regard
by the owner of the copyright. These rights include the right of publication, right to make
translations, right of adaptation, right of reproduction, etc. According to Section 17 of the Copyright
Act, 1957, the author or creator of the work is the first owner of the copyright.
One of the supreme advantages of copyright protection is that protection is available in several
countries across the world, although the work is first published in India by reason of India being a
member of the Berne Convention. Protection is given to works first published in India, in respect of
all countries that are member states to treaties and conventions to which India is a member. Thus,
without formally applying for protection, copyright protection is available to works first published in
India, across several countries.
SALIENT FEATURES OF THE COPYRIGHT ACT, 1957:
Scope of rights conferred to author: Under section 13 of the Copyright Act 1957, copyright protection
is provided to literary works, musical works, dramatic works, artistic works, sound recording and
cinematograph films. For example, books, manuscripts, poetry, these are protected under the Act as
literary works.
The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and
cinematograph films and sound recordings from unauthorised uses. Unlike the case with patents,
copyright protects the expressions and not the ideas.
Provisions to determine first ownership: According to Section 17 of the Copyrights Act 1957, the first
owner of the copyright is the author of the work itself. The exception to this rule is the

case in which, the employer becomes the owner of the copyright in circumstances where the
employee creates a work in the scope of her/his employment.
Civil and criminal remedies: The civil remedies for copyright infringement are covered under Section
55 of the Copyright Act of 1957. These civil remedies include damages, injunctions, interpretation of
accounts, destruction and delivery of infringed copies and damages for conversion.
The criminal remedies, for infringement of copyright, are provided under Section 63 of the Copyright
Act 1957. These criminal remedies include imprisonment, fines, search and seizure of infringing
goods, etc. The imprisonment can range up to 3 years but cannot be less than 6 months and the fine
ranges from 50,000 to 2,00,000 rupees.
Creation of copyright office and copyright board: Provisions for setting up a copyright office, which is
under the control of the Registrar of the copyright for the registration of books and other works of
art, and a copyright board to help in dealing with copyright-related disputes are also given in the
Copyright Act, 1957.
Section 9 of the Copyright Act, 1957 provides for the inception of an office which is to be called the
Copyright Office for the purpose of the Act. Section 11 of the Copyright Act, 1957 provides for the
inception of the Copyright Board.
2. What is Copyright? Explain the works in which Copyright subsists and in which Copyright does not
subsists.
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work.
According to Sec.13 of the Act, Copyright subsists throughout India in the following classes of works:
 original literary, dramatic, musical and artistic works;  cinematograph films;
 sound recording
These aforesaid broad categories can be summarised as follows:
 Literary works: The term literary works" encompasses all works that are in print or writing,
irrespective of the quality or style of the work. Literary work refers not only to works of prose

and poetry, but anything that would be under the ambit of literature". However, there will be no
copyright if the work is merely a collection of words, the collection of which involved no literary skill.
In India, a computer program is treated as a literary work and is protected as such.
 Dramatic works: A dramatic work includes 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 but does not include a cinematograph film.
 Musical works: Musical work means a work consisting of music and includes any graphical notation
of such work but does not include any words or any action intended to be sung, spoken or
performed with the music. A musical work need not be written to enjoy copyright protection.
 Artistic works: 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
quality; a work of architecture; and any other work of artistic craftsmanship. Any colour scheme,
layout or arrangement of any alphabets or features qualifies as an artistic work.
 Cinematograph films: Cinematograph film means any work of visual recording on any medium
produced through a process from which a moving image may be produced by any means and
includes a sound recording accompanying such visual recording; "cinematograph" shall be construed
as including any work produced by any process analogous to cinematography including video films.
 Sound recordings: Sound recording means a recording of sounds from which sounds may be
produced regardless of the medium on which such recording is made or the method by which the
sounds are produced. A phonogram and a CD-ROM are sound recordings.
Any work which falls under any of the categories mentioned above qualifies for copyright protection.
The work sought to be copyrighted must be original; however, it is not necessary that the work
should have some original thought or idea. The law is only concerned about the originality of the
expression of thought.
A copyright grants protection to the creator and his or her representatives (by way of an agreement),
for the works and prevents such works from being copied or reproduced without their consent.
The creator of a work can prohibits or authorise anyone to:
 reproduce the work in any form, such as print, sound, video, etc.;
 use the work for a public performance, such as a play or a musical work;

 make copies/recordings of the work, such as via compact discs, cassettes, etc.;  broadcast it in
various forms;
 translate the same to other languages
Further, moral rights which are the rights to be identified as an author of a work or to object to
derogatory treatment of a work, are also protected. The Act grants an author special right which exist
independently of the author's copyright, and subsist even after the assignment (whole or partial) of
said copyright.
The author has the right to:
 claim authorship of the work
 restrain or claim damages with respect to any distortion, mutilation, modification, or other act in
relation to the said work if such distortion, mutilation, modification, or other act would be prejudicial
to their honour or repute.
These special rights can also be exercised by the legal representatives of the author. The moral right
against distortion is available to the author even after the expiry of the term of copyright and not
only against distortion, mutilation etc. done during the term of copyright of the work.
Likewise, copyright does not subsist in a sound recording made in respect of a literary, dramatic or
musical work if in making the sound recording, copyright in such work has been infringed.
3. What is Copyright? Explain the works.
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work.
 What is a work? A work means any of the following , namely, a literary, dramatic, musical or artistic
work, a cinematograph film, or a sound recording.
 What is a work of joint authorship? "Work of joint authorship" means a work produced by the
collaboration of two or more authors in which the contribution of one author is not distinct from the
contribution of the other author or authors.

 What are the classes of works for which copyrights protection is available in India? Copyright
subsists throughout India in the following classes of works:
 Original literary, dramatic, musical and artistic works;  Cinematograph films; and
 Sound recordings.
 What is an artistic work? An 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 quality;
 a work of architecture; and
 any other work of artistic craftsmanship.
 What is a musical work? "Musical work" means a work consisting of music and includes any
graphical notation of such work but does not include any words or any action intended to be sung,
spoken or performed with the music. A musical work need not be written down to enjoy copyright
protection.
 What is a sound recording? "Sound recording" means a recording of sounds from which sounds
may be produced regardless of the medium on which such recording is made or the method by
which the sounds are produced. A phonogram and a CD-ROM are sound recordings.
 What is a cinematograph film? "Cinematograph film" means any work of visual recording on any
medium produced through a process from which a moving image may be produced by any means
and includes a sound recording accompanying such visual recording and "cinematograph" shall be
construed as including any work produced by any process analogous to cinematography including
video films.
 What is a government work? "Government work" means a work which is made or published by or
under the direction or control of
 the government or any department of the government  any legislature in India, and
 any court, tribunal or other judicial authority in India.
 What is an Indian work? "Indian work" means a literary, dramatic or musical work,  the author of
which is a citizen of India; or

 which is first published in India; or

 the author of which, in the case of an unpublished work is, at the time of the making of the
work, a citizen of India.
4. Copyright is a ‘Bundle of Rights’. Describe various rights enjoyed by an owner of copyright.
What are the nature of rights available in Copyright?
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work.
In India, copyright is sui generis right. It is considered a natural right as it is automatically granted to
the creator of the original literary (including computer programs), dramatic, musical and artistic
works; cinematographic films; and sound recordings. Registration of work is not mandatory for
availing the protection under the Copyright Act, 1957.
❖ The Apex Court in R.G. Anand’s Case held that registration of works is not mandatory for availing
copyright protection.
❖ In the case of Sunil Agarwal Vs Kumkum Tandon, it was observed that Section 18 of the Copyright
Act, 1957 confers ownership rights in copyright on the assignment. Generally, the creator or the
author of the work is the owner of the work and therefore entitled to get the copyright for the work.
Where the author of the work is employed by another person, the work belongs to the employer of
the author. And where the creation of the works is incidental, but not the purpose, the work belongs
to the authors. But in practice, out of the contractual agreement between the employer and the
employee, the creation during the course of employment would be belonging to the employer.
Section 17 of the Copyright Act, 1957: The conditions that are ought to be specifically kept in mind
while interpreting the state of ownership has been provided statutorily under Section 17 of the
principal Act by which we can say that the following are the owners of the copyrights:
 In musical sound recordings: lyricist, composer, singer, musician and the person or company who
produced the sound recording

 In works by journalists during their employment: in the absence of any agreement to the
contrary, the proprietor
 In works produced for valuable consideration at the instance of another person: in the absence of
any agreement to the contrary, the person at whose instance the work is produced
The Copyright Act, 1957 sets out the following rights of copyright to the copyright owners:
 In the case of literary, dramatic or musical works - the exclusive right to reproduce including
storage in any medium by electronic means, issue copies, public performance, make any film or
sound recording in respect of that work, to translate and to adapt the work and the right of
communication to the public (which is defined widely enough to cover dissemination over the
internet).
 In the case of computer programs - all rights as mentioned for literary works in addition to selling
or giving on hire, or offering for sale or hire for commercial rental any copy of the computer program.
 In the case of artistic works - to reproduce the work in any material form. This may include storing
it in any medium by electronic or other means or depicting a two-dimensional work in three
dimensions or vice versa. Copyright in an artistic work also includes the exclusive right to
communicate the work in public, issue copies of it, include it in a cinematograph film, and translate
or adapt the work in any way.
 In the case of cinematograph films - to make copies of the film (on any medium, electronic or
otherwise) including copies in the form of photographs that form a part of the film, sell or give on
hire, or offer for sale or hire any copy of the film, to sell, give or offer for sale on commercial rental
copies of the film and communicate the film to the public.
 In the case of sound recordings - to make any other sound recording embodying it on any medium
including storing of it on any medium, to sell or give on commercial rental or offer for sale such rental
and to communicate the sound recording to the public.
MORAL RIGHTS OF A COPYRIGHT OWNER: The moral rights of the copyright owner have been
provided under Section 57 of the principal Act that encompasses three basic moral rights.
i. Right of paternity;
ii. Right of integrity;

iii. Right to retraction.

Right of paternity : The right of an owner of copyright to claim and prevent others to claim the
ownership of his copyrighted work is said to be a right of paternity.
❖ Sholay Media Entertainment and Pvt. Ltd. V Parag M. Sanghavi, was a landmark judgement
delivered on the Right of paternity of the copyright owner, where the court granted protection to the
title of the movie which made the defendant to replace his’ movie title completely by refraining the
use of the name which causes damage to the cult of the name “Sholay” since it was deceptively
similar with the same.
Right of integrity : The right of the owner of the copyright to protect the reputation of his own work
from exploitation is the right of integrity.
❖ In Sajeev Pillai v. Venu Kunnapalli & ors., the respondent was alleged on the act of pre – release
publicity of the movie which was yet to be released without ant authorized permission. The court
granted relief to the aggrieved petitioner by restraining the respondent to carry on such act which
damages the exclusiveness and reputation of the movie.
Right to retraction : Retraction is an act of taking back the previous assertion made. The author at
times may feel to give up his own right as an act of honouring the dignity of his work which sounds
like assassinating one’s own life for the sake of protecting the so far gained reputation. The principal
Act, under section 57 grants the author the right to withdraw from the publication of his work. In
simple terms it means waiving of his granted rights for the sake of protection of the reputation or the
integrity.
❖ In Amarnath Sehgal v Union of India, the court pointed out the right to retraction as to withdraw
one’s own publication if the author feels the condition of his work is derogatory in nature and are
advisable to do the withdrawal of the same. This would be the author’s right to retraction.
5. Describe the various Modes of Transfer of Copyright.
What are the ways in which the Copyrighted work is assignable?
Ans: The owner of copyright work can generate wealth not only by exploiting it himself but also by
sharing it with others for mutual benefits. This can be done by way of assignment or licensing of
copyright.

Assignment of Copyright (Section 18): The owner of the copyright of a work has the right to assign
his copyright to any other person. The effect of assignment is that the assignee becomes entitled to
all the rights related to the copyright to the assigned work. However, mere grant of right to publish
and sell the copyrighted work amounts to publishing right and not assignment of copyright.
Where the assignee of a copyright becomes entitled to any right comprised in the copyright, he shall
be treated as the owner of the copyright in respect of those rights. The assignor shall also be treated
as the owner of copyright with respect to unassigned rights. The legal representatives of the assignee
shall be entitled to the benefits of assignment, if the assignee dies before the work comes into
existence.
❖ In Video Master v. Nishi Production, the Bombay High Court considered the issue whether
assignment of video rights would include the right of satellite broadcast as well. The Court agreed
with the contentions of defendant that there were different modes of communication to the public
such as terrestrial television broadcasting (Doordarshan), satellite broadcasting and video TV. The
owner of the film had separate copyright in all those modes, and he could assign it to different
persons. Thus, satellite broadcast copyright of film was a separate right of the owner of the film and
the video copyright assigned to the plaintiff would not include this.
Mode of Assignment (Section 19): As per section 19, assignment of copyright is valid only if it is in
writing and signed by the assignor or his duly authorized agent. The assignment of a copyright in a
work should identify the work and specify kind of rights assigned and the duration and territorial
extent of such assignment. Further, it should specify the amount of royalty payable, if any, to the
author or his legal heirs during the continuance of assignment and the assignment will be subject to
revision, extension or termination on terms mutually agreed upon by the parties.
If the period of assignment is not mentioned it will be deemed to be taken as five years from the
date of assignment. If the territorial extent of such assignment is not stipulated, it will be taken as
applicable in whole of India.
Also, Section 19(8) contemplates that the assignment of copyright work against the terms and
conditions on which rights have been assigned to a particular copyright society where the author of
the work is a member shall be void. Further, Section 19(9) and section 19(10) opine that the
assignment of copyright for making cinematograph film or sound recording shall not affect the right
of the author to claim an equal share of the royalties and consideration payable with respect to use
of his protected work.

❖ In Saregama India Ltd v. Suresh Jindal, it was held that the owner of the copyright in a future
work may assign the copyright to any person either wholly or partially for the whole of the copyright
or any part thereof and once the assignment is made the assignee for the purpose of this Act is
treated as the owner of the copyright.
LICENSING OF COPYRIGHT: The owner of copyright may grant a license to do any of the act in respect
of which he has an exclusive right to do. The license can be classified into following categories:
Voluntary license (Section 30): The author or the copyright owner has exclusive rights in his creative
work and he alone has right to grant license with respect to such work. According to section 30 of
the Copyright Act 1957, the owner of the copyright in a work may grant any interest in his copyright
to any person by license in writing, which is to be signed by him or by his duly authorised agent. A
license can be granted not only in existing work but also in respect of the future work, in this
situation assignment shall come into force when such future work comes into existence. Where a
licensee of the copyright in a future work dies before such work comes into existence, his legal
representatives shall be entitled to the benefit of the license if there is no provision to contrary.
The mode of license is like an assignment deed, with necessary adaptations and modifications in
section 19 (section 30A). Therefore, like an assignment, a license deed in relation to a work should
comprise of following particulars:
a. Duration of license
b. The rights which have been licensed
c. Territorial extent of the licensed
d. The quantum of royalty payable
e. Terms regarding revision
f. Extension and termination
Voluntary licenses can be:
 Exclusive - The term exclusive license has been defined in Section 2(j) as a license which confers on
the licensee and persons authorized by him, to the exclusion of all other persons, any right
comprised in the copyright work.
 Non-exclusive – It does not confer right of exclusion. It is mere grant of an authority to do a

particular thing which otherwise would have constituted an infringement. When owner grants an
exclusive right, he denudes himself of all rights and retains no claim on the economic rights so
transferred.
 Co-exclusive – Here the licensor grants a license to more than one licensee but agrees that it will
only grant licenses to a limited group of other licensees.
 Sole license – Where only the licensor and the licensee can use it to the exclusion of any other
third party.
 Implied license – Author impliedly allows or permits the use of his work. For example, he had
knowledge that someone is using his work but he did not take any action
6. Define Copyright. Explain the nature and subject matter of Copyright.
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work. AREAS
COVERED BY COPYRIGHT:
 Artistic work: Artistic Work’ means a painting, sculpture, a drawing, an engraving or photograph
 Dramatic work: ‘Dramatic Work’ includes any piece for recitation, choreographic work or
entertainment
 Literary Work: The term ‘Literary Work’ refers to any literary writings, as well as computer
programs, tables, compilations and computer databases
 Musical work: ‘Musical work’ means a work consisting of music and includes any graphical notation
of such work, but does not include any words or any action intended to be sung, spoken or
performed with the music
NATURE OF COPYRIGHT PROTECTION:
 Automatic: Copyright is an unregistered right which subsists automatically as soon as the work that
is eligible for protection is created and recorded on some medium.
 Originality: The work protected need not be new. However, it must be original in the sense that it is
not copied from some other source but is the result of an application of effort by the creator of the
work.

 Exclusions: Copyright protects the expression of ideas but not the idea or concept underlying a
piece of work. For that reason, procedures, methods of operation and mathematical concepts are
excluded from copyright protection.
SUBJECT MATTER OF COPYRIGHT: In order to secure copyright protection what is required is that the
author must have bestowed upon the work,
i. Sufficient judgment,
ii. Skill, and
iii. Labour or Capital.
❖ In Walter v. Lane, (1990), it was held that, it is immaterial whether the work is wise or foolish,
accurate or inaccurate, or whether it has or has not any literary merit.
❖ In another case Ravencraft v. Herbert, (1980), it was held that copyright protects the skill and
labour employed by the author in the production of his work. The owner of a copyright has no
monopoly in the subject matter. Others are at liberty to produce the same result (from common
source)provided by do so independently and their work is original.
It was said that, another person may create another work in the same general form provided he does
so from his own resources and makes the work he so originates a work of his own by his own labour
and industry bestowed upon it.
7. Enumerate the cases in which compulsory licenses in Copyright may be granted. When can
compulsory licence be issued in Copyright? Who will grant the compulsory license and when it can
be revoked ?
Ans: A license is the transfer of an interest in a copyright. In a license, the rights granted are limited.
A grant of a license to a person authorizes the licensee to use the copyrighted work without any
claim of infringement or unauthorized use being brought by the owner of the copyright against the
licensee.
A license is different from an assignment as the licensee gets certain rights subject to the conditions
specified in the license agreement, but the ownership of those rights vests solely in the owner of the
copyright. On the other hand, in case of an assignment, the assignee becomes the owner of the
interest assigned to him. The original owner of the copyright transfers all his/her rights to the
assignee and retains none. A license can be voluntary or compulsory.

VOLUNTARY LICENSING: Section 30 of the Indian Copyright Act defines what is meant by voluntary
licensing. According to Section 30:
The owner of the copyright in any existing work or the prospective owner of the copyright in any
future work may grant any interest in the right by license in writing signed by him or by his duly
authorized agent.
Therefore, the copyright owner of any existing work or the prospective owner of any future work can
grant any interest in the right by way of a license. However, it has to be borne in mind that in case of
future work, the license will come into force only when the work comes into existence.
COMPULSORY LICENSING: A compulsory license is a term generally applied to a statutory license to
do an act covered by an exclusive right without the prior authorization of the right owner.
Compulsory licensing allows for the use of protected (in this case, copyrighted material) without the
prior permission of the owner of the right.
Section 31 of the Indian Copyright Act provides for the compulsory licensing of copyright in case of
works that are withheld from the public. In case the copyright owner has refused to:
 Republish or allow for the republication of the work or has refused to allow for the performance of
the work in public due to which the work is withheld from the public;
 Allow communication of the work to the public by way of a broadcast of such work, or in the case
of sound recording the work recorded in such sound recording on terms which the complainant
considers reasonable,
The Copyright Board can, after providing a reasonable opportunity for the owner of the copyright to
be heard and after conducting an enquiry and if satisfied, can direct the Registrar of Copyrights to
grant a compulsory license to the complainant to republish the work, broadcast the work or
communicate it to the public as the case may be. Upon such direction, the Registrar of Copyrights
shall grant the license to the complainant.
Further, a compulsory license can also be granted in case of unpublished Indian works. Section 31A
provides for the same. In case of an unpublished work wherein the author is dead or unknown or
cannot be traced, any person may apply to the Copyright Board seeking a license to publish such
work.

❖ In the case of Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., Radio Mirchi
was playing music, and Super Cassette Industries held the rights of it. The music company filed for a
permanent injunction. While the suit was pending, the FM operators applied to the Copyright Board
for the grant of a compulsory license under Section 31(1)(b) of the Copyright Act.
The question that arose here was whether in such a particular circumstance, granting of a
compulsory license was viable. The broadcasters, i.e., Radio Mirchi, argued that since a license had
already been granted to AIR and Radio City, there were no grounds on which a license to Radio
Mirchi should be denied.
The Court held that since a compulsory license can be granted on grounds stated in Section 31A of
the Copyright Act, i.e., only when access to the work has been denied to the public. In this case, the
license had already been granted to AIR and Radio City. Therefore, it was not barred to public access.
Thus, the argument of Radio Mirchi holds no water, and they were liable for infringement of
copyright.
Why is compulsory licensing so important ? The primary objective of compulsory licensing is to
ensure the availability of copyrighted material. The Indian Copyright Act grants protection to the
works of writers, artists, etc. so that they can benefit from the results of their hard work and
creativity.
However, this comes at a price i.e.; the work should be available for access and fair use for other
individuals. There are times when copyright owners refuse to part from their work.
In such a case, in order to ensure the availability of copyrighted material to the public and free flow
of ideas and information without infringing the rights of the copyright owner, compulsory licensing
becomes a necessity.
8. State the acts which do not constitute infringement of Copyright.
Ans: The copyright infringement happens when one’s copyrighted work is used by someone else
without permission. If the owners get their work copyrighted, then they are eligible for
compensation for having their work infringed. The person who copies or uses the original work
without permission must face a lawsuit and provide compensation to the original owner of the work.
If anyone wants to use any of the copyrighted work, then they can get permission from the owner. In
some cases, they can pay to buy the copyrighted work from the owner.

The Copyright Act, 1957 provides for certain exceptions to infringement of copyright, under Section
52. The provision permits limited use of copyright material without the owner’s authorization. The
object of these provisions is to enable the encouragement of private study and research and
promotion of education. They provide defences in an action for infringement.
The exceptions come under the following categories:
i. Reproduction for use in judicial proceedings and for use of members of the legislature,
ii. Publication of short passages, restricted reproduction or performance for educational
purposes,
iii. Making of records under license from Copyright Board on payment of royalty,
iv. Playing of records or performance by a club or society for the benefit of the members of religious
institutions,
v. Reproduction of an article on current economic, political, social or religious matters in newspapers,
magazines etc.,
vi. Reproduction of a few copies for use in libraries or for research or private study,
vii. Matters published in official gazettes including Act of Parliament (subject to certain
conditions ) or its translation,
viii. Making of a drawing, engraving or photograph of an architectural work of art, or a
sculpture kept in a public place,
ix. Use of artistic work in a cinematography film,
x. Use of an artistic work (author not the owner of copyright) by the author of any mould, cast,
sketch, plan, model, etc., made by him for the work,
xi. Making of an object in three dimensions of an artistic work in two dimensions subject to certain
condition, and
xii. Reconstruction of a building in accordance with architectural drawings.
xiii. Fair dealing without commercial benefits.
Copyright law does not prevent a person from taking what is useful from an original work and create
a new work with additions and improvements. Under the guise of a copyright the owner of a
copyright cannot ask the court to close all the venues of research and scholarship and all frontiers of
human knowledge.
9. What are the characteristics of Copyright? Explain.
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic

works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights
including, inter alia, rights of reproduction, communication to the public, adaptation and translation
of the work. There could be slight variations in the composition of the rights depending on the work.
THE CHARACTERISTICS OF COPYRIGHT: Following are the characteristic features of copy right:
1.Creation of a statute: Copyright is formation of a particular statute under the present law. This law
is applicable only on work which are as per the provision of this act i.e. Any work cannot qualify for
copyright.
2. Some Form of intellectual property: A copyright is a form of intellectual property because it
protects the product of a human mind.
3.Monopoly right: Copyright is monopolistic in nature. It restricts others from using the rights of a
copyright owner.
4. Negative right: Copyright is a negative right it stops others from copying the work protected under
copyright.
5.Object of copyright: The basic aim of copyright law is to motivate authors, composers and artists to
create original works by giving them exclusive right for a specified period of time.
6. Multiple rights: Copyright is not a single right. It consists of a collection of different rights in the
same work. For example, a literary work copyright includes the right issuing copies of work,
translation of work etc.
7. Neighbouring Rights: Copyright Act explains broadcasters’ and performers’ rights, they are known
as “Neighbouring Rights”. They were created for performing artists, producers of phonogrammes,
and people involved in broadcasting (radio or television).
10. What are the qualifying elements to be in existence in a work for its Copyrightability ? Ans:
ELEMENTS OF COPYRIGHT:
 The Work Should Be Tangible: Copyright registration is granted to an original creator only
for their tangible work. In other words, you cannot obtain copyright registration for ideas, thoughts,
or concepts. Copyrights come into existence after the concept or idea is materialized or fixed into
something that can be read, or heard. However, it can be a draft or a completed work, published or
unpublished work. So, the ideas should be arranged and fix into tangible form to obtain copyright
registration.
 The Work Should Be Original: Only original work can be copyrighted. However, for this, neither
uniqueness nor quality is required. Even if the work is bad, it is still subject to

copyright protection. Similar works independently created are also individually subject to copyright
protection. However, the work should be created by inspiration rather than borrowing from other
sources.
 The Work Should Be Creative: The mere hard work of the creator is not enough to gain copyright
protection. The work should be at least minimally creative. For example, A simple list of cooking
ingredients is probably not subject to copyright. However, a detailed recipe of food that can be made
with the ingredients may be subject to copyright protection.
 Other Miscellaneous Conditions: The original work should not have been published before. For the
work of an author who has passed by, the author should have been a citizen of India, at the time of
death. If the work is published in India, the author has to be a citizen of India during the publication.
11. What do you mean by infringement of Copyright? What are the remedies available for
infringement of Copyright?
What constitutes infringement ? What are the remedies available for infringement ? Explain.
Ans: When a person uses any work of another person without a license granted by the original
owner or the Registrar of Copyrights, then that work is said to be infringed.
When the plaintiff claims that the work is said to be infringed, the burden of proving the
infringement lies upon the plaintiff and the plaintiff can show that:
 The defendant had access to the plaintiff’s work
 The works are substantially similar.
The plaintiff has to establish two elements in the court:
 Ownership of the copyrighted work
 The said work is ‘original’ in nature.
REMEDIES AGAINST INFRINGEMENT: Section 55 lays down the remedies we can seek in case of
infringement. Further, they are basically divided into two categories:
 Civil remedies
 Criminal remedies
 CIVIL REMEDIES: Section 55 of the Copyrights Act of 1950 lays down the following categories of
copyrights infringement
1. Statutory injunction

2. Pecuniary remedies
3. Anton pillar order
4. Mareva injunction
5. Norwich Pharmacal order
(1) Statutory Injunction: Injunctions basically mean that the person is restricted from further using
the copyrighted material. Moreover, the suit for injection (interlocutory) is filed by the owner of the
work requesting the court to restrict the person from using the copyrighted work.
There are three basic requirements for the grant of the injunction:
 Prima facie case
 Moreover, the balance of convenience  Injury or damage caused to the plaintiff
Once the court is satisfied that the case establishes the above three requirements, it will grant the
interlocutory injunction to the plaintiff.
(2) Pecuniary Damages: The plaintiff can also seek monetary or pecuniary benefits from the
defendant. There are three options available:
 Claim the amount the defendant earned by unauthorised use of the work  Compensatory
damages
 Conversion damages- based on the value of the work.
(3) Anton Pillar Order: This order was introduced in the system by virtue of the famous case of Anton
Pillar AG V. Manufacturing Processes. The court gave three elements to this order
 Injunction restricting the defendant from destroying or using the work  Further, a search of the
premises by the plaintiff’s lawyer
 Disclosure of the name of the supplier of the work.
(4) Mareva Injunction: The court if it is of the opinion that the defendant might flee or escape from
the country or state or will try to delay/obstruct the proceeding of the court then, the court will issue
a Mareva injunction order against the defendant.
The court has the power to direct him to place whole or part of the property within the custody of
the court as may be required to sufficient the decree passed by the court.
(5) Norwich Pharmacal Order: This order is usually given when certain kinds of information are to be
disclosed and the defendant forbids himself from disclosing it.
 CRIMINAL REMEDIES: The following criminal remedies are available to the plaintiff- owner of the
copyrighted work:

 Imprisonment for six months which may be extended up to three years

 Fine- not less than ₹50,000 but not exceeding ₹2,00,000
 Confiscation of the goods including the equipment used to create those infringed copies of
the work
 Therefore, delivery of infringed copies of the work to the plaintiff.
These are the remedies by the court after verifying the facts and circumstances of the case.
But, one thing to be noted here is that: In case of infringement of the works relating to architecture,
there are no remedies provided to the owner of the work. Therefore, the owner of the work cannot
ask for:
 The injunction to restrain the construction  Demolition order
 Any other remedies.
In case of groundless threat of legal proceedings- that is where any person who claims to be the
owner of the work issues any circular or advertisement or threatens any other person with legal
proceedings, then the declaratory suit can be initiated against such person and in such suit obtain:
 Injunction against such threats
 Recover such damages if any sustained by such threats.
All you have to do is contact your lawyer and file a suit in the court and then sit back and relax. The
court will provide you with appropriate remedies.
EXCEPTIONS TO THE COPYRIGHT ACT, 1957: The Copyright Act, 1957 does not include the
infringement of copyright in the cases of ‘Fair dealing’. This law is provided under Section 52 of the
Copyright Act, 1957.
Fair dealing is the legal limitation on the exclusive right of the copyright owner which permits
her/him to reproduce or use the copyrighted work in a manner that otherwise would have resulted
in copyright infringement.
12. ‘Copyright exists in expression of idea and not in idea’ explain the statement in the light of
subject matter of copyright.
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. There could be slight variations in the composition of the rights depending on the work.

Copyright is protection in Form and not in Idea: Copyright is a right given to or derived from works
and it is not a right in novelty only of ideas. Copyright essentially protects the works of an author or
creator and prevents others from copying such original work. It does not, however, bar others from
coming to the same result through an independent process.
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.
How does one distinguish between an Idea and an Expression? 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.
An important case in this regard is that of RG Anand v. Deluxe Films. The plaintiff was the author of a
play called Hum Hindustani. In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff
expressing his desire to make a movie based on the play. The plaintiff and the defendant met and
discussed the entire play. The defendant did not commit anything, but the plaintiff later came to
know that the defendant released a movie titled New Delhi. After watching the movie, the plaintiff
was of the opinion that it is based on the story of his play. So, he filed a suit against the defendant for
permanent injunction and damages. Both the District Court and the High Court ruled against the
plaintiff on a finding of the facts. The case finally reached the Supreme Court of India.
The Supreme Court held that the movie cannot be considered to be an infringement of the script of
the play. The reason it gave was that though the idea behind both the stories was the same, the
manner in which both had been expressed were vastly different from each other. Therefore, it cannot
be held to be copyright infringement.

❖ More recently, in the case of Mansoob Haider v. Yashraj Films, the Bombay High Court reiterated
on the fact that ideas are not copyrightable. The residue left behind after filtering out dissimilarities
is the idea which is not copyrightable and similarity of ideas does not lead to copyright infringement.