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Legal Issues in Internet & Software Copyrights
A Presentation by:-
G.R.RaghavenderDirector
Department of Industrial Policy and PromotionMinistry of Commerce and Industry
Government of India
Presentation
• Concept of copyright• Subject matter with special reference
- to literary works- Publisher’s rights
• Copyright issues in internet• Infringement & Remedies• International Treaties• Jurisdiction issues• Latest amendments
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© What is Copyright?
• It is an intangible intellectual property - it is a form ofexpression not ideas, procedures, methods of operationor mathematical concepts as such or titles or short wordcombinations
• Copyright subsists in following ORIGINAL works :
1. Literary works,
2. Dramatic works,
3. Musical works,
4. artistic works
5. cinematograph film
• Related or neighbouring rights
• sound recordings,
• performer rights, and
• broadcasting rights
Copyright Exclusion: Names and titles
Copyright Exclusion
• Copyright does not ordinarily protect titles by themselves
or names, short word combinations, slogans, short
phrases, methods, plots or factual information.
• Article 2(8) of the Berne Convention,(Paris act, 1971):
“The protection of this Convention shall not apply to
news of the day or to miscellaneous facts having the
character of mere items of press information”.
• Article 9(1) of TRIPS Agreement, 1995 / Article 2 of
WCT,1996
“Copyright protection shall extend to expressions and not
to ideas, procedures, methods of operation or
mathematical concepts as such”.
Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. 2003
• Citation: 2003 (27) PTC 305 (Del)(DB)• pertains to infringement of copyright of the appellant in the words ‘Yeh Dil
Maange More’• Court had noted that the plaintiff had registered his slogan ‘Yeh Dil
Maange More’ with the Registrar of Copyrights.• Court held that “It is original combination or words from two different
languages thereby covering the theme of the advertising.• It has acquired distinctiveness and association with the product of the
appellant.”• However, the Hon’ble Court did not say that the slogan itself was
copyrightable but it subsequently held “that the roller coaster commercialof the respondent is nothing but a literal imitation of the copyright work ofthe appellant with some variations here and there. Having said so wewould be failing in our duty by not restraining the respondents fromshowing its roller coaster commercial in the present form.”
• The Court further observed that when a sentence is proved to have beenin common use then it is not copyrightable nor can be protected.
Copyright: Idea-expression dichotomy
• Najma Heptulla V. Orient LongmanLtd.[ AIR 1989 Del 63]
• Plaintiff and legal Heirs of MaulanaAbul Kalam Azad opposed opening ofseals and publishing of 30 pages ofscript.
• ‘India Wins Freedom” – jointauthorship- Azad narrated in urdu –Dr Humayun Kabir wrote in English(preface)
• Agreement between Dr Kabir andOrient Longman ?
• Agreement approved by one of thelegal heirs.
• Court held that plaintiff estoppedafter enjoying royalties for 30 years –last wish of Mr Azad was to publishentire work.
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Copyright: Idea-expression dichotomy - 2
Barbara Taylor Bradford vs. Sahara MediaEntertainment
SAHARA TV serial "Karishma - A Miracle of Destiny".
Copyright infringement in the book, "Woman ofSubstance“, by Barbara Taylor Bradford.
The Petitioner had obtained an ex-parte ad-interiminjunction – Kolkata High Court.
SC held: No copyright in ‘idea’; Infringement couldonly be established if there is similarity of incidents,events, expression of language and situation;Balance of Convenience- no injunction on the scantyground that one of the producers had admitted thatit was based loosely on the book – Rs 100 Crores –only after 15-20 episodes details of similarity can beestablished.
Suppression of facts: Mumbai to Kolkata HC –amendment of plaint – easy injunction. –no merits
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Artistic work v. Design• section 15 (1) –No Copyright in any design which is
registered under the Designs Act, 2000’.
• section 15 (2) -‘Copyright in any design, not registeredunder the Designs Act, 2000, shall cease if it isreproduced more than 50 times by an industrial process.
• Microfibers Inc. Vs Girdhar & Co & Anr.(MANU/DE/0647/2009) (DB)
• interpretation of the Delhi High Court harmonizes theCopyright and the Designs Act in accordance with thelegislative intent
• Samsonite Corporation Vs Vijay Sales[MANU/DE/0045/1998 : 73(1998)DLT732] .
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Copyright Requirements
• Originality
• Fixation
OriginalitySweat of the brow doctrine• copyright protection based on how much labour and diligence it
took to create a work- not originality
Walter v. Lane (1900 UK case)• copyright of an account of a speech transcribed by a reporter
belonged to the newspaper he worked for because of the effort ittook to reproduce his spoken words.
Skill, judgment and/or labour doctrineLadbroke (Football) Ltd. v. Willim Hill (Football) Ltd., [1964] 1 WLR 273
(HL),• concept of originality was considered on the basis of skill, judgment
and/or labour in the context of compilation.• recognized at various times in the United Kingdom, Canada,
Australia, India and elsewhere.
Originality-2Doctrine of Minimal degree of creativityFeist Publications v. Rural Telephone Service (US case). • copyright protection could only be granted to "works
of authorship" that possess "at least some minimaldegree of creativity".
• mere labor ("sweat of the brow") is not sufficient toestablish a copyright claim.
• some obvious methods of compilation andcomputation, such as the Yellow Pages or blank forms,cannot receive a copyright
• but sufficiently original original elements within thework itself can still be eligible for protection
• Eastern Book Company & Ors vs D.B. Modak &Anr (2007)
Fixation
• Fixed in a material form
• In any medium
• Section 2(h) of the Act- "dramatic work"includes any piece for recitation,choreographic work or entertainment in dumbshow, the scenic arrangement or acting formof which is fixed in writing or otherwise butdoes not include a cinematograph film;
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Literary works
Books Pamphlet Poems Articles
Letters Tables and Computer
Compilations Programmes
Software-Copyright-1• Berne Convention-Article-2: every production in the literary,
scientific and artistic domain-whatever may be mode or formof expression
• TRIPS-Article 10(1): computer programme-Source code &object code as per Berne Article 2
• TRIPS-Article 10(2): copyright protection for original databasesand other compilations of data
• WIPO Copyright Treaty,1996-Article 4 &5
• Copyright Act,1957-sec.2(o): literaray work includes coputerprogramme, tables and compilations including computer databases
• Computer programme-Sec.2(ffc): a set of instructionsexpressed in words, codes, schemes or in any other form,including a machine readable medium, capable of causing acomputer to perform a particular task or achieve a particularresult;
Software-Copyright-2• Computer programme elements : Literal & Non-literal
Literal Elements:
• verbatim copying of original expression
• source and object codes
Non-literal Elements:
• copying is paraphrased;
• program’s “structure, sequence, and organization;
• Products generated by codes interaction with hard ware;
• operating program;
• the various steps a programmer employs prior to actuallywriting the instructions or source code
Software copying - The ‘Altai’ Test• Computer Associates International, Inc. v. Altai, Inc.,
[982 F2d 693, 702 (2d Cir. 1992)]• “abstraction-filtration-comparison test”- to distinguish
copyrightable aspects of a program from the purely utilitarian and thepublic domain.
Abstraction- which aspects of the program constitute its expression and which are
the ideasFiltration- to remove from consideration aspects of the program which are not
legally protectable by copyrightComparison- to consider the elements of the program identified in the first step
and remaining after the second step,- and for each of these compare the defendant's work with the
plaintiff's to determine if the one is a copy of the other.- to look at the importance of the copied portion with respect to the
entire program
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Dramatic works
Fixed in writing
recitation choreographic work dumb show
Scenic arrangement acting
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Musical works
• a work consisting of music• includes any graphical
notation of such work• does not include any
words or any actionintended to be sung,spoken or performed withthe music;
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Artistic works
Painting Sculpture Drawing Diagram Cartoon
Map Chart Plan Engraving
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© What is Copyright?
• Artistic works:
• Cinematographic works
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Authors rights - 1
© a bundle of exclusive economic rights - both monopolistic andnegative in nature – as only author has rights.
Economic rights
• Reproduction
• Publish
• Performance
• Communication to public
• Adaptation
• Translation
• rental
• Assignments
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Authors rights - 2
©Moral Rights- authors special rights (sec 57)• Moral rights exist independently of economic rights of author• even after assignment• even after the end of term of protection
1. Right to Paternity – claim of authorship of work2. Right to Integrity – to restrain or claim damages in respect of
any distortion, mutilation, modification or other act
No remedy, if –1. Any adaptation of computer programme2. Failure to display a work or satisfaction to the author
Bundle of Rights: Moral rights• Amarnath Sehgal v. Union of India
[(2005)30 PTC 253]
• 1957- artist was asked by Govt. toundertake to do bronze muralsculpture in foyer/ground floor-Vigyan Bhawan.
• 1962- Completed [40ft x 140ft]
• 1979 – renovation of building- muralpulled down-consigned to storeroom– damages for Rs 50.00 lakhs-infringement of moral rights.
• UOI contended it was the owner.
• Amendment in 1994 – no exceptionfor display of work.
• Court held moral rights of artistviolated –paid damages and work bereturned to the artist.
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Broadcasting rights
Broadcasting rights (sec 37)
• Tele serial
• Event show
• Sports
• News
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Protection of broadcasting organizations:
Copyright Act, 1957
Section 37 - Broadcast reproduction right.-
(1) special right known as "broadcast reproduction right"
(2) Term- 25 years
(3) The following acts prohibited without the licence -
(a) re-broadcasts the broadcast; or
(b) communication to by the public on payment of anycharges; or
(c) makes any sound recording or visual recording of thebroadcast; or
(d) makes any reproduction of such acts or
(e) sells or rental to the public or offers for such sale or rental,
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Protection of broadcasting organizations:
Copyright Act, 1957
Section 39. Acts not infringing broadcast reproduction right or
performer’s right. –
No broadcast reproduction right shall be deemed to be infringed by-
(a) the private use or bona fide teaching or research; or
(b) reporting of current events or
(c) which do not constitute infringement of copyright under section 52.
Section 39A.Other provisions applying to broadcast reproduction
right and performer’s right.-
Sections 18, 19, 19A, 30, 33 to 36, 53, 55, 58, 63, 64, 65, 65A, 65B, and
66 shall apply with any necessary adaptations and modifications
Section 52 (1) (z) ephemeral recordings – for archival purpose
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Performer rights
Actor Singer Musician
Dancer Acrobat Juggler Snake Charmer
Conjurer; a person delivering a lecture or any other person who makes a performance;
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Performer‟s right
• Fortune films v, Devanand – no separate rights foractors/performers
• Section 38 - Performer‟s right
• Term- 50yr
• right to reproduction of sound or visual recording
• right to prohibit communication to the public, including broadcast
• Selling or giving Commercial rental
• shall have no right if given consent to include in cinematograph film
• But entitled for royalties for other commercial uses
30
Sound Recording
• "sound recording"
• means a recording of sounds from which such sounds may be produced
• regardless of the medium on which such recording is made or • the method by which the sounds are produced;
31
Sound Recording
• Section 13 (1) (c) copyright subsists in "sound recording"
• Section 13(3) (b) Copyright shall not subsist in any soundrecording made in respect of a literary, dramatic or musicalwork, if in making the sound recording, copyright in such workhas been infringed.
• Section 13(4) The copyright in a cinematograph film or a soundrecording shall not affect the separate copyright in any work inrespect of which or a substantial part of which, the film, or asthe case may be, the sound recording is made.
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Sound Recording
Section 14 - Meaning of copyright.exclusive right subject to the provisions of this Act, to do orauthorise the doing of any of the following acts in respect of awork or any substantial part thereof, namely:-
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it;
(ii) to sell or give on rental, or offer for sale or rental, any copy of the sound recording regardless of whether such copy has been sold or given on rental on earlier occasions;
(iii) to communicate the sound recording to the public.
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Copyright Societies
• GOI introduced registration of Copyright societies through 1994 Amendment to the Act
• Collective Management of economic rights in the field of copyright: -Where individual administration is not feasible or possible due to mass usage of works
• Whose interest is served?
i. Right-owners - better control of rights in case of mass use of works
ii. Users – single instead of multiple contracts, time saving and other difficulties
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Need for Collective Management Society – (2) Origin
• A fully developed Collective Management in France 1847:
• Two composers Paul Henrion and Victor Parizot and a writer,Ernest Bourget filed lawsuit against “Ambassadeurs” a Café-concertin Avenue des Champs-Elise's in Paris – they had to pay for theirseats & meals, where their works performed by orchestra.
• Societe des auteurs, compositeurs et editeurs de mustique(SACEM)-First Collective Management Society
• CISAC (International Confederation of Societies of Authors andComposers) – 18 societies- June 1926
Copyright: Music rights
Music rights
Performing rights(authors & music
composers)
Sound recording
(Music Company)
Performer’s right
(Singers)
Mechanical
reproduction right
Synchronization right
Graphic right
(sheet music)
Right to communicate to
the public
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Copyright Societies
Section 33(3)- Copyright Societies to be set up for collection anddistribution of royalties by issuing licences
• i. For Performers(Singers): Indian Singers Rights Association(ISRA)
• ii. For musical works: The Indian Performing Right Society Limited(IPRS) – Authors and Composers
• iii. For sound recording: Phonographic Performance Limited (PPL) –Music companies
• iv. For reprographic (photo copying) works: Indian Reprographic Rights Organization (IRRO)-authors and publishers
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Copyright Societies
• A group or an association of persons to issue or grant licences[Sec.33 (1) & (3)], but individual shall continue to do so,
• Society may accept exclusive authorisation of authors andrights-owner, but has right to withdraw without prejudice tothe rights of Society under any contract[Sec-34(1)];
• Agreement with a foreign Society for administering rights[Sec-34(2)];
• To issue licence, collect fee, distribute it after deductions forits expenses [sec-34(3)];
• Society under collective control of authors and rights-owners• obtain approval of collection & distribution of fees;• utilisation of amount for any other purpose and provide inf.
on all activities of administration[sec-35];• Submission of annual returns and Registrar can call for any
report or records [sec-36]
PERFORMING RIGHTS IN INDIA
Indian Performing Rights Society (IPRS)
• Section 17 (b) – First owner Producer – in absence of an
agreement to the contrary in works
• IPRS v. Eastern Motion Picture Producers Association (1977-SC)
• 1993 agreement between IPRS & Record companies – 50:50
sharing between author/composers and music publishers
• 1995 –IPRS registered copyright society
• 2008 – changed Memorandum of Articles and Business Association
• Music companies become governing council members- “owner
members”
• Authors and composers ordinary members- have to sign an
undertaking that they do not own any rights – royalties
• Music companies who are not members do not share performing
royalties
Bundle of rights: Performing Rights• Indian Performing Rights Society Ltd.
V. Eastern India Motion PicturesAssociation [AIR 1977 SC 1443]
• IPRS (lyricist/Music Composers) claimto collect royalties was opposed bydefendants.
• First owner of the copyright- Sec 17(b) &(c) – in absence of an agreementto the contrary producer is the firstowner.
• Sec. 2 (d) (v) – producer is author –cinematograph film
• SC- Jaswant Singh,J. - decision forproducers.
• Obiter dicta: Krishna Iyyar, J_ Authorsare left in cold- penumbral area oflaw- need for legislative exploration toprotect authors.
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Copyright Societies: Litigation
Music Royalties Issue : Private FM versus Copyright Societies (PPL/IPRS) – Opposing uniform royalty rates for metro and non-metros and against the current rate.
Copyright Board:Decision 19.11.2002 Rs 1200/- (Rs 660/- after discount)
Appeal: Bombay and Delhi High Court
Supreme Court decision 16.5.2008 – remanded the case back to Copyright Board to re-examine the matter after taking evidence
Copyright Board: decision 25.8.2010 – 2% advertisement revenues on pro-rata basis
Artist’s Resale Right: The Copyright Act,1957
Section 53A. Resale share right in original copies.
• Introduced in 1994 Amendment
(1)Any resale for a price exceeding Rs 10,000/-, of the originalcopy of a painting, sculpture or drawing, or of the originalmanuscript of a literary or dramatic work or musical work,
• the author or his legal heirs , of such work if he was the firstowner of rights under section 17
• notwithstanding any assignment of copyright in such work,
• Inalienable right to receive royalties.
• The right shall cease to exist on the expiration of the term ofcopyright in the work.
(2) The Copyright Board may fix the share
• the decision of the Copyright Board in this behalf shall be final
• It may fix different shares for different classes of work :
• the share shall not exceed 10% of the resale price.
(3) Any dispute shall be referred to the Copyright Board whosedecision shall be final.
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Term of Copyright Protection
Life plus 60 years: Literary works,Dramatic works,musical works,artistic works, including Photographs
60 yearscinematograph films,sound recordings,posthumous works,Government works,Works of Public Sector &International organizations
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Authors rights
• Authorship and ownership
• Author the first owner of copyright– In case of works created during employment the employer
is the first owner
– In case of government work the government is the first owner
• Contract of service
• Contract for service/commissioning
OWNERSHIP OF COPYRIGHT
• Diljeet Titus, Advocate v. Alfred A.Adebare [ (2006)32 PTC 609]
• Two suits were filed by two partiesagainst each other.
• Plaintiff claimed defendant wasworking under him for remuneration inthe form of fee while he remained incontrol of professional business andorganization.
• It was alleged that defendant misuseddata of plaintiff.
• Defendant claimed they worked underpartnership.
• Defendant claimed ownership of dataas he created it while in employment.
• Court held: Prima facie it was plaintiffwho was owner of such copyrightmaterial.
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Assignemnt and Licence
• Assignment - assignee is treated as owner of the copyright.
• rights can be transferred in writing and signed.
• an existing work or a future work ;
• assign to any person - wholly/partially ;
• generally or subject to limitations;
• whole term of the copyright or any part thereof;
• Assignment lapses if does not exercise the rights within 1 year,
• If period is not stated its deemed to be for 5 years; and
• If territory is not mentioned it extends to whole of India.
• No assigment in future medium or technolgy
• License -must be in writing and signed.
• - the ownership is retained by the Licensor
- licensee to follow terms and conditions of licence
- after expiry of license term no power to use the work.
• Voluntary licence (sec.30).
• Compulsory licence (sec.31, 31A , 31B & 32) and
• Statutory licence [sec.31C- Version recordings
sec 31D - broadcasting
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Remedies for Copyright owners
• Civil, criminal and administrative remedies• Civil remedies .(sec 53)• _District Court
– Injunction, damages, account of profit, – Anton Piller order
• Criminal remedies .(sec 63)• – Metropolitan or Judicial Magistrate
– Imprisonment (6months/ 1 year to 3 years) – fine(Rs 50,000/Rs 1 lakh to Rs 2 lakhs)– Circumvention of Technological Protection Measures
(sec65A) - 2 years imprisonment – Circumvention of Rights Management Information
(65B)- 2 years imprisonment & fine• Administrative remedies
– Copyright Board in case of disputes (sec 19A , 50 &72)• Boarder measures – importation of infringed copies
– Confiscation of goods by customs authorities(sec 53)
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Remedies for Copyright owners-2• Presumption of authorship:
• the person whose name so appears or appeared in literary,dramatic, musical or artistic work, sound recording and film shall, inany proceeding in respect of copyright in such work, be presumed tobe the author or the publisher of the work, unless the contrary isproved.
• Remedies in the case of groundless threat to legal proceedings:
• the owner of copyright in any work, threatens any other person withany legal proceedings or liability in respect of an allegedinfringement of copyright,
• by circulars, advertisements or otherwise,
• any person aggrieved thereby may institute a declaratory suit thatthe alleged infringement to which the threats related was not in factan infringement of any legal rights of the person making such threatsand may in any such suit –
i. obtain an injunction against the continuance of such threats;
ii. recover such damages, if any, as he has sustained by reason ofsuch threats.
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What is Copyright infringement?
Copyright is infringed when any one does the following acts without a licence from the owner/registrar of copyrights or in contravention of conditions of licence “:
– Making infringing copies for sale or hire or selling or letting them for hire;
– Permitting any place for the performance of works in public where such performance constitutes infringement of copyright;
– 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 ;
– Public exhibition of infringing copies by way of trade; and
– Importation of infringing copies into India.
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©opyright infringement- Examples
© Books (Text books/fiction- piracy or photocopying)
© Music (MP3 downloads-CD burning-ripping FM/Satellite radio broadcasting-bootlegging or unofficial live recordings)© Movies ( CD/DVD piracy-Camcording)
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Copyright & Internet
Electronic Market Place -1
• Definition: Virtual, online environment i.e., website, thatallows individuals or firms to conduct business electronically.
• Electronic marketplace is in the Advertising, Marketing, &Sales, Banking, Commerce & Finance, E-Commerce, andInternet & World Wide Web (WWW) subjects.
• Electronic market Place consists of so-called catalog sales
• computer screen replaces traditional paper catalogs
• broader selection, constantly updated choices and prices
• On-line transaction, brokerages and World-wide orders
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Copyright & Internet
Electronic Market Place-2• Electronic market Place is associated with several business models:• e-commerce -goods are sold directly to consumers (B2C) or businesses (B2B),• publishing — the sale of advertising,• lead-based websites — an organization generates value by acquiring sales leads
from its website, and• affiliate marketing — a business rewards one or more affiliates for each visitor or
customer brought about by the affiliate's marketing efforts.• Business-to-Business [B2B portal] that can support fully integrated electronic
commerce transactions. B2B portal hosts web stores for the member companiesand will also certify them depending on their supply position, credit worthiness,business strengths and business practices. -Eg. Scientific publisher to Uni. Library
• Business-to-Consumer [B2C portal] business entity and end consumer – eg:Amazon.com; Bazee.com; eBay
• Consumer –to-Consumer [C2C]: Per–to-Peer (P2P) file sharing• Consumer –to – Business [C3B] : User Generated Content (UGC)• E-Governance• socio-economic indicators such as the GDP per capita, telephone density and the
digital divide
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Copyright & Internet
Electronic Market Place-3ACCESS TO ON-LINE CONTENT
• On-line Contract: provided online is subject to a "mouse-clickcontract" and/or terms and conditions limiting what the user canlegally do with the material
• Single user limit; Read-only or allow to print a single copy
• Redistribution or reuse of the material in any way is generallyprohibited
• While in the world of text publishing (newspapers, journals andmagazines) this is by and large done on an honor basis (based onlaw and contract),
• Apply Encrypted devices / Technological Protection Measures(TPMs) / digital locks / water marking/ finger printing/ContentScrambling Systems (CSS)/ Rights Management of Information(RMI)
Infringement of Copyright -1
• R.G.Anand v. M/s Deluxe Films [AIR 1978 SC1613]
• 1953 -‘Hum Hindustani’ a play written byR.G.Anand
• 1954 - enacted in Wavell theatre in Delhi –very popular.
• 1955 - Mohan Sehgal – Bollywood filmproducer – interested in making film- nocommitment.
• May 1955 – film ‘New Delhi’ was announced–replied to author as a different story.
• 1956 – film released- author found that itwas an infringement.
• SC –1978: Court held: No infringement; idea-expression divide (provincialism /parochialism); substantial &material copying;layman observer test; same theme treateddifferently; similarities/ material & broaddissimilarities.
53
Infringement of Copyright -2
• Fateh Singh Mehta v. O.P.Singhal [AIR 1990Raj.8]
• O.P.Singal – ME (Mech.) Jodhpur Uni.–dissertation “An Experimental Investigation ofSwirling Flow in Cylindrical Chambers”.
• Fateh Singh Mehta- Supervisor- copied it inhis Phd – ‘An Aerodynamic Study of SwirlingJets”- a report by Panel confirmed copying.
• Mr. Mehta claimed that dissertation is of hisown.
• Court held- no assignment or relinquishmentor acknowledgements – injunction by lowercourt is valid.
54
Infringement of Copyright - 3
• Cambridge University Press v. M/s Kasturi Lal & Sons[2006(32) 487 Del]
• ‘Advanced Grammar in Use’-by Martin Hewings – –prescribed by Guru Nanak Dev Uni. Amritsar – Textbook BA/B,Sc/B.Com - Price $29/- Iow priced editionRs 95/-.
• Defendant – Guide book– solved exercises – 3 vol. Rs170/- each.
• Sec. 52 (1) (h) – fair dealing in teaching, and writingexamination.
• Court held – exception can not be applied because itwas not part of answers written during theexamination.
• Appeal: SC held: Derived work- no infringement –Guide is a different work - labour involved - price isalso different.
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Limitations and Exceptions -1
BERNE “TRHEE -STEP TEST”: Article 9 (2):-
“It shall be the matter for legislation in the countries of the
Union to permit the reproduction of such works in certain
special cases, provided that such reproduction does not
conflict with a normal exploitation of the work and does
not unreasonably prejudice the legitimate interests of the
author”.
• Indian Copyright Act – Section 52 follows this concept.
• This concept is also adopted in TRIPS-Article 13; WCT-
Article 10 ;WPPT-Article 16 & EU Directives 5 (2) (c)
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Limitations and Exceptions -2• Section 52 (1) of the Copyright Act, 1957 – “Certain acts not to be
infringement of copyright”.
• Fair dealing with a literary, dramatic, musical or artistic work not being acomputer programme for the purposes of :
• private and personal use, research and study, teaching, examination, includinguse of works in library;
• criticism or review, reporting current events and current affairs-
in a newspaper, magazine, broadcasting, films, photographs;
• judicial proceedings , legislature, official gazette
• Visually impaired persons and other physically disabled persons [52(1)(zb)]
• Educational Purposes: Section 52 (1) (i) : the reproduction of a literary,dramatic, musical or artistic work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions; Section 52 (1) (o) : the making of not more thanthree copies of a book (including a pamphlet, sheet of music, map, chart orplan) by or under the direction of the person in charge of a public library for theuse of the library if such book is not available for sale in India
• Sec 52(1) (n) digitization of non-profit libraries
• Section 52 (2) Translation and adaptation of the above
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Limitations and Exceptions -3• Educational Purposes:
• Section 52 (1) (i) : the reproduction of a literary, dramatic,musical or artistic work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;
• Research or private study -Section 52 (1) (p)
• -Section 52 (1) (o) : the making of not more than three copies ofa book (including a pamphlet, sheet of music, map, chart orplan) by or under the direction of the person in charge of apublic library for the use of the library if such book is notavailable for sale in India
• Berne Convention: Article 10 (2) – „It shall be a matter forlegislation in the countries of the Union, and for specialagreements existing or to be concluded between them, to permitthe utilization, to the extent justified by the purpose,
• No quantitative limitations are contained If copying isunreasonable
Fair Dealing• Gramophone Co. of India Ltd v. Super Cassette
Industries [1995 PTR 64]
• Plaintiff produced audio records for M/sRajshree Productions Pvt. Ltd.- ‘Hum AapkeHain Kaun’.
• Defendant- marketed product with similartitle, design & colour scheme, layout, get up,etc.
• Sec 52 (1) (j) – ‘Version recording’ - Coverversions: no misleading – no alterations –notice – after 2 calendar years of firstpublication – authorized agent can inspectrecords & accounts - royalties as per rate fixedby Copyright Board.
• Court held: defendant not to use misleadinginlay covers – not to use same title – may useother title but it should mention that it is a‘Version Recording’ sung by different artists. 60
Fair Dealing -2
J.K.Rowling & Others v. Salt Lake Durga PujaCommittee, Kolkata
The controversy regarding a Durga puja pandalrecreating Harry Porters Hogwarts Castle .
JK Rowling and party sought Rs 20 lakhs.
while the puja committee is ready to pull itdown rather than pay.
Delhi High Court: Held – sec.52 (1) za, religiousceremony -“the committee could continue withpandal till puja and to file an undertaking statingthat they would not use any character from thebook without permission in future any (further)use of these characters will be subject to theprior permission of the author of Harry Potterseries, J K Rowling,”
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Principle of Exhaustion
Exhaustion means
i. marked goods put for sale by owner or by his consent;
ii. Once sold, IP owner or title holder cannot prevent resale of same marked good
iii. rights are ‘exhausted’ after ‘first sale’
iv. Exclusive rights over marked goods cannotbe exercised twice in respect of the samegoods.
Types of Exhaustion principle
• Domestic/National exhaustion
• Regional/Community exhaustion-EU
• International Exhaustion
• No exhaustion at all?
• Parallel goods/ Parallel imports/Grey market goods/First sale doctrine –USA
• India: Section 14(distribution right); section18/19 –mode of assignment(doctrine ofdivisibility) & section 53-importation ofinfringing copies
Copyright Parallel imports cases
• Penguin Books Limited vs. India Book Distributors:
[AIR 1985 Del 29].
• - importation of copyright books (goods) without the consentof the owner of the copyright though they may have beenmade with the consent of the owner of copyright in the placewhere they were made (i. e parallel imports) is an
infringement of copyright.• Warner Brothers Entertainment Inc and Others Vs Santosh
V.G[MIPR 2009 (2) 175]
• Eurokids International Pvt. Ltd. vs. India Book Distributors &Egmont Books Ltd [2005 (6) Bom CR 198]
• John Wiley & Sons v. Prabhat Chander Kumar Jain & Ors. CS(OS) No.1960/2008-Del.
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Copyright Policy : International Conventions
• Berne Convention for the Protection of Literary and Artistic works 1886.
• Universal Copyright Convention 1952.
• Rome Convention-1961.
• Geneva Phonogram Convention-1971.
• Brussels Satellite Convention-1974
• Agreement on Trade Related Aspects of Intellectual Property Rights
• (TRIPS) 1995
• WIPO Copyright Treaty, 1996
• WIPO Performances and Phonograms Treaty, 1996
• Beijing Treaty on Audiovisual Performances, 2012
• Marrakesh Treaty on Access to Published Works by Visually Impaired Persons andother Print Disabled, 2013
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Copyright (Amendment) Act, 2012Amendments inter-alia seek to:
i. Added new definitions -“Rights Management Information” [section 2 (xa)] and “VisualRecording” [section 2 (xxx)].
ii. Amended existing definitions - “Cinematograph films” [section 2 (f)], “Communication tothe Public” [section 2 (ff)] and “Performer” [section 2 (qq)]
iii. independent rights to authors of literary and musical works in cinematograph films-sec,17, 18 and 19
iv. storing of copyright material by electronic means and liability of internet serviceproviders- sec52 (1) (c)
v. enhance the term of copyright for photographers (sec 22)vi. statutory licensing for version recording of all sound recordings -sec31Cvii. statutory licensing for broadcasting of literary and musical works and sound recordings
(sec31D).viii. Access of physically challenged persons to copyright material in all accessible formats
(sec52(1) zb)ix. compulsory licensing for physically challenged for publication of copyright works in for
profit physically challenged (sec31B);x. Strengthening administration of copyright societies by giving equal membership rights to
the authors and the owners (sec 33,and 35);xi. introduction of tariff scheme by copyright societies (sec33A);xii. Performers rights and right to receive royalty for commercial exploitation of such works
(sec38A (2)).xiii. Protect ion from circumvention of Technological Protection Measures (sec65A)xiv. Protect ion from circumvention of Rights Management Information (sec65B)
