CHAPTER-1

INTRODUCTION

1.1 GENERAL

Property according to traditional classification may be either movable or

immovable. Both movable and immovable properties fall under the category of

corporeal property which is capable of being physically touched, sensed and

perceived, it is also called tangible property.

Another property is intangible property which cannot be seen. It relates to

intellectual property, securities and individual reputation etc. Intellectual property is

that property which is created by human intelligence i.e. mental labour, and it

includes property and literary property. The category of industrial property includes

patents, trademarks, industrial designs and layout designs. Literary property includes

copyright and neighboring rights including the performer's rights.

In recent times many new forms of intellectual property have come into

existence. They include plant varieties, plant breeders’ rights, digital copyright and

domain names etc. Many new forms are related to Information Technology (IT),

Chemical Technology (CT) and Bio-technology (BT). However these parts are

attracting the attention of the commercial world. Because of phenomenal

advancement of science and technology new forms of intellectual property also came

into existence, they include business methods, computer programs etc. Mere ideas

cannot be protected under intellectual property. They can be protected only when

they are put in materialistic form (which is tangible).

The answer to the question, "What constitutes the most precious thing in the

world?" Is undoubtedly 'the human mind'. This is because the mind has conceived

innovative ideas and created the mechanisms to apply them. Many things around us

which have occurred merely due to innovation and creativity. If individuals who

conceive the innovative ideas are not rewarded, it would lead to the curtailment of

their creativity. This is where the concept of intellectual property steps in the main

reason having intellectual property right is to reward the persons who put in efforts

into intellectual creations. Another reason is by giving protection to intellectual

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property many such endeavors are encouraged and industries based on such work can

thrive. Further, it also leads to financial returns and prosperity.

This form of intellectual property has got greater recognition only in the 18 th

century. In fact intellectual property acquired greater recognition in international law,

when compared to the municipal laws. In today’s world the international dimension

of intellectual property is of ever increasing importance for three compelling reasons

1) The composition of world trade is changing; currently commerce in

intellectual property has become an even greater component of trade between

the nations. The value of information products has been enhanced greatly by

the new technologies like semi-conductor chip, computer software and

biotechnology.

2) The world commerce has become even more interdependent, establishing a

need for international co-operation. No longer can a simple country impose

its economic will on the rest of the world. Accordingly countries have

recognized this interdependence and have called for a broadening of

international agreements, arrangements involving intellectual property.

3) New reprographic and information storage technologies permit unauthorized

copying if take place faster and more efficiently than ever undermining the

creator's work.

Intellectual property is predominantly recognized in the commercial world to

protect the interest of mercantile community. It is specially created and recognized in

law in spite of its monopolistic nature for a definite period or for an unlimited period

based upon the nature of creation. The flow of knowledge based information can be

constrained by space and national borders. The need for comprehensive international

agreements governing intellectual property could be seen even in the 19th century,

which came into fruitarian with the union of Paris for the Protection of Industrial

Property (1883) and the Berne Convention for the protection of Literary and Artistic

works (1886).

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World Intellectual Property Organization (WIPO) which governs the

intellectual property rights of member states. There are many international

instruments and international institutions help in understanding of the international

regime of intellectual property rights, through trips, GATT; patent co-operation

Treaty, Budapest Treaty, Madrid Agreement, Lisbon Agreement, Trademark Treaty

and regulation and Universal Copyright Conventions etc., WIPO Copyright Treaty.

An invention can be patented and no other person can use that invention for

his own without paying fees to the owner. It is same with authorship in various

forms. The notion that an author should have an exclusive 'copyright' in his creation,

it took a firm shape at the beginning of the eighteenth century.

Copyright is considered as a kind of property, but its precise nature differs

substantially from other forms of property with which more people are familiar.

Indian Copyright Act of 1957 provides copyright protection of original

literary, dramatic, musical and artistic works, cinematograph films and records

during the authors’ life and for 50 years. Subsequent to the authors’ death also.

Briefly, copyright means the right to copy or the right to restrict or control

copying. Starting with books copyright protection has gradually expanded to cover

other domains of intellectual creations like art, sculpture, architecture, choreography,

films, records and broadcasting. Accordingly legislative actions against infringement

and video piracy had come into force to protect the copyright.

A brief historical view will help in understanding why copyright protection

has started, with the invention of printing which made it possible.

Copyright is an exclusive right granted to the author to make copies or

reproduction of his work for a certain period. Law confers monopoly right on the

author for the intellectual effort. Copyright restricts any person except author, to use

the works without the authors will. Copyright restricts the reproduction of the work

in any material form, publication performance in public, broadcasting, transmission

over a diffusion service and the making of an adaptation. Adaptation includes the

conversion of a non-dramatic work into a dramatic work and vice-versa, a translation

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or a version for publication in which the story or action is conveyed wholly or

mainly by pictures.

Copyright is a unique kind of intellectual property the importance of which is

increasing day by day. It does not fall in the category of intellectual property. The

basic areas that are covered under the copyright protection are in the field of printing,

music, communication, entertainment and computer industries. In fact 'copyright'

was the first intellectual property which received legal recognition in the world.

The right which a person acquires in a work which is the result of his

intellectual labour is called his copyright. The primary function of a Copyright law is

to protect the fruits of a man's work, labour, skill or test from annexation by other

people. The law of copyright has to protect a man's copyright irrespective of his

status as a family man or saint.1

Copyright is a unique kind of intellectual property. The right which a person

acquires in a work, which is the result of the intellectual labour, is called his

copyright. The primary function of a copyright law is to protect the fruits of mans

work, labour, skill or test from being taken away by other people.2

However, the copyright protection extends to the original works of the

authors; authors were given copyright to use his work in any manner as he likes to

reproduce, sell or make copies or distribute the copies of the work.

Copyright law can be divided into

i) Copyright law in the strict sense of the work; i.e. the protection of

intellectual creativity; and

ii) The law on neighboring rights.

Section 14 of Indian Copyright Act defines copyright as an "exclusive right

by virtue of and subject to, the provision of this Act" to do and authorize doing of

any number of prescribed acts in relation to literary, artistic and dramatic works and

1 Sulamangalam R. Jayalakshmi Vs. Meta Musicals, 2001 (1) Raj 150.2 Holy Faith International Pvt. Ltd., Vs. Shiv K. Kumar, 2006(3) Raj, 64(A.P)-2006(33) PTC 456.

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to cinematograph films and records. Copyright constitutes property rights in

personam and in rem, violation of which can be redressed under the protection of the

Act. It is also important to stress at the outset that copyright is defined as a statutory

right, owing its existence and stature within the four corners of the Act. Section 16 of

the Act makes it clear that no person is entitled to copyright "or any similar right in

any work otherwise than under in accordance with the provisions of this Act or of

any other law for the time being in force". No customary law is to be pleaded.

The meaning of copyright for each category of work is quite extensive and

that copyright protection extends to all binds of work including those which

represent "originality" at vanishing point. The requirement of 'originality' in Indian

law, as elsewhere, does not refer to ideas but rather to the manner and material forms

of their expression. The objective of copyright, it has been stressed in India, is not to

"create monopoly in ideas"; rather the protection aims of T.R.S. Iyenger, the

Copyright Act 1957 (101 3rd ed.1977) prevention of unlawful reproduction of dealing

with the manner and material form in which ideas are expressed. Consequently,

originality also refers not to novelty or creativity in ideas but only to the manner and

material form of their presentation. The expression of thought, the form, formulation,

order, plan or arrangement of presentation as testifying to the investment by the

author of mental faculties, skills, competence, craftsmanship, knowledge, labour and

capital in the production of any work. In other words the requirement of originality is

an elliptical way of expressing the idea that the work should not be a substantial copy

of another work; or more colorfully it should not amount to piracy of another's skills,

competence, craftsmanship, labour and capital. In a sense, copyright law protects the

author against dishonest and willful misappropriation or theft of the author's efforts.

Obviously, the notion of originality does not even entail a modicum of

novelty or creativity. The extent or amount of originality in expression or material

form may be very small but that small amount is protected by law.3

3 Govindan Vs. Gopalakrishnan, AIR 1955, Mad 391 at 393.

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Copyright is defined in the concise oxford dictionary as "the exclusive right

given by law, for a certain term of years, to an author, composer, etc (or his

assignee) to print, publish and sell copies of his original work". The moral

justification for providing legal protection is based on the principle that a man is

entitled to the fruits of his brain as much as he is entitled to the fruits of his

mechanical labour.

"The congress shall have power....to promote the progress of science and

useful arts, by securing for limited time to authors and inventors the exclusive right

to their respective writings and discoveries". 4

All original literary works are eligible for protection what is protected

however is not the idea but the literary form, whether it is of merit or not. It is

generally held that titles of books, which are mere words, do not have copyright.

Adaptations, condensations or rearrangements of literary works, whose protection

has ceased, are eligible for protection. Dictionaries, gazetteers, directories and such

other compilations of public domain materials are also protected, provided they be

original and not merely copied from an earlier work. In an encyclopedia, in addition

to the copyright held by the contributor of an article, there may be a separate

copyright vesting in the editor in regard to arrangement.

Illustration in books may have a separate copyright, as artistic works. These

may not necessarily be held by the author of the literary work. Publishers of maps

might like to know that it is an offence to show wrong international boundaries and

these are to be verified in advance with the survey of India. In regard to

topographical details, the survey of India would ask for copyright fees in all those

cases where their topographical details are used. Publishers of law books may note

that though any one may reproduce under Sec.52 (l)(g) of the 1957 Act yet head

notes may have copyright and these may not be lifted from other law reports.

In case of joint works where the individual contributions of the participating

authors are not distinguishable, the rights are held jointly.

4 U.S. Constitution Art 1, Sec.8.

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Almost invariably, the back of the title page of any book will contain a

copyright notice. Under the Berne Convention, such a notice is not necessary, unless

the state where the work is first published stipulates such a condition in its domestic

law. Under the universal copyright convention, however a copyright notice has to be

included in a prominent place. The notice is to consist of three parts namely, (1) the

letter 'c' in a circle © (2) the name of the copyright proprietor and (3) the year and

date of publication. The absence of this notice may invalidate copyright in universal

copyright convention countries not belonging to the Berne Union.

1.2 SIGNIFICANCE OF PROBLEM

Copyright is a kind of intellectual property the importance of which has

increased enormously in recent years due to eh rapid technological development in

the field of printing, musical, communication, entertainment and in computer fields.

Now-a-days the law of copyright has gained much importance not only in literary,

dramatic or musical works, but also artists, dress designers, architects, publishers,

multimedia, persons concerned with cinematograph film and recording and

broadcasting authorities and printing, publishing and entertainment industries.

Infringement of copyright can be stopped by an action for infringement. This study

intended to study developments of copyright and importance of copyright in India.

1.3 OBJECTIVES OF THE STUDY

1) An attempt is made in the present study to evaluate, the emerging trends and

different provisions of copyright law in India.

2) The researcher has taken up the study the different aspects of copyright from

their origin and development.

3) Number of questions is involved in this study like, what is the importance of

copyright law? Why and how they were recognized and protected by the

institution of copyright? What are the legislations passed and how are they

implemented? How conventions are helpful in protection of copyright

internationally.

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1.4 METHODOLOGY

The present research work is explanatory and descriptive design of study.

Descriptive design because various legislations and international Conventions on the

protection of copyright are to be discussed elaborately. From the study the main

source of information to be collected from secondary sources like books, articles,

reports, journals and newspapers and internet etc. Researcher also consulted the legal

luminaries and experts in the field of intellectual property law.

1.5 REVIEW OF LITERATURE

The present study which is based on secondary data method, it is based on

published works like books, journals and periodical. These works give information

about the cases, enactments, amendments, etc.

In addition to these books, many websites give much information about the

latest developments and position of copyrights in different countries and its

enactment, and commentaries of different jurists about the copyright law in India.

Dr. G.B. Reddy's Intellectual Property Rights and the law focus on the

copyrights law in India and its relativeness with other intellectual property rights.

W.R.Cornish book on intellectual property gives the information about origin

and development of copyright law.

P.S. Narayanan book on intellectual property gives full length information of

copyrights.

Websites like www.wipo.org, www.iprlawindia.org, www.spicyip.com gives

much information of copyrights in India.

1.6 PLAN OF STUDY

The present study is divided into Six chapters.

The first chapter deals with the introduction significance of problem,

objectives of study, methodology used, and review of literature and plan of study.

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1) The second chapter is origin and development of copyrights law in India an

approach.

2) The third chapter is Copyright - Analysis of the law which deals with

definition of copyright, meaning of copyright, rights of owners of copyright,

and infringement of copyright.

3) The fourth chapter deals with Infringement of Copyrights.

4) The fifth chapter deals with the Legal Protection of Copyright in India and

Judicial Perspective of Copyrights.

5) The sixth chapter deals with the Conclusion and Suggestions for the

implementation of the Act.

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CHAPTER-2

ORIGIN AND DEVELOPMENT OF COPYRIGHT LAW - AN APPROACH

General

There is need to protect the works of writers, poets, composers, play rights,

etc from unauthorized usage of others. Printing made it easy to prepare multiple

copies of a work quickly and cheaply. But it affects the rights of talented people,

hence government made necessary legislations to protect the works of the owners by

giving copyright to them. It is discussed in the following chapters.

2.1 ORIGIN AND DEVELOPMENT OF COPYRIGHTS LAW IN INDIA

It is customary to commence historical accounts of copyright law with

enactment of the 1914 Act which did nothing more than extend all vital respects the

United Kingdom copyright Act to India. The then Indian legislature, under Section

26, had the power to modify the provisions of this Act. We lack knowledge about

systems of copyright protection and indeed of the total legal systems, of about six

hundred odd ex-princely states which never became, legally, a part of British India

and continued their "sovereign" existence till 26 January 1950, when India became a

free republic. But there is some evidence that some such states elected to adopt basic

features of English statutes on copyright, modifying them in some respects to suit

local conditions. An adequate history of copyright law in India must take note of the

systems developed in the Portuguese and French enclaves in India; which persisted

about a decade or so, after attainment of the Indian independence.

First statute on copyright was enacted during the east India Company’s

regime in 1847. Its preamble recites several doubts which exist or which "may exist"

concerning recognition and enforcement of copyright as a part of the common law or

administration of justice on the basis of "justice, equity and good conscience" or as

regards the application of British statutes or territories then administered by the East

India Company. The term of copyright was for the life time of the author plus seven

years post-mortem. But in no case the total term of copyright was to exceed the

period of forty- two years. The government was empowered to license publication of

the book if the owner of copyright upon the death of the author refused to allow its

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publication. Unauthorized printing of copyright work for "sale hire or exportation"

or for selling, publishing or exposing to sale or hire constituted infringement. Suit or

action for infringement was to be instituted in the "highest local court excursing

original civil jurisdiction".

The Act provided specifically that under a contract of service copyright in

"any encyclopedia review, magazine, periodical work or work published in a series

of books or parts" shall vest in the "proprietor, projector, publisher or conduct".

Infringing copies were deemed to be copies of the proprietor of copyrighted work.

Registration of copyright with the home office was mandatory for the enforcement

of rights under the Act; but the proviso to section 14 specifically reserved the

subsistence of copyright in the author and his right to sue for its infringement to the

extent available in law other than the 1847 to 1911. We do not have much

information on how this legislation operated during the period 1847 to 1911.

2.2 INTERNATIONAL CONVENTIONS PROTECTING COPYRIGHT

In the globalization of trade and commerce there is every need for the

protection of copyright internationally, following international conventions are

directly concerned with the international protection of copyright.

a. Berne Convention.

b. Universal Copyright Convention.

c. International Convention for the Protection of Performers.

a) Berne Convention For The Protection Of Literary And Artistic Works

The International Union for the Protection of Literary and Artistic works was

first established in 1886 in Berne, Switzerland. It is popularly known as the Berne

Union or Berne Convention. It entered into force on 5th December, 1887 and has

been revised five times with two additions, and is administered by WIPO. The latest

text is that of the Paris Revision, 1971. As on January 1, 1996, there were 117 states

which become parties to the Berne Convention.

The Berne Convention has 38 articles and an appendix incorporating special

provisions for the developing countries. The substantive provisions of Berne are

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found in the first 20 articles, followed by administrative provisions. This convention

is based on national treatment and compliance with convention minima. The

conventions scope and application is very broad encompassing "literary and artistic

works" which include every production in the literary, scientific and artistic domain,

irrespective of the mode or form of its expression. Therefore works such as

choreography, painting, and architecture, compilations and derivative works, and

even the industrial designs find protection under the Berne Convention.

The Berne Convention (1886), which is the oldest International Convention

governing Copyright, the following in its article 2

The expression "literary and artistic works" shall include every production in

the literary, scientific and artistic domain, whatever may be the made or form of its

expression, such as books, pamphlets and other writings; lectures, addresses,

sermons and other works of the same nature; dramatic or dramatic-musical works;

choreographic works and entertainments in dumb show; musical compositions with

or without words; cinematographic works to which are assimilated works expressed

by a process analogous to cinematography; words of drawing, painting, architecture

sculpture, engraving and lithography; photographic works, to which are assimilated

works expressed by a process analogous to cinematography; works of drawing,

painting architecture, sculpture, engraving and lithography; photographic works, to

which are assimilated works expressed by a process analogous to photography;

works of applied art; illustrations, maps, plans, sketches and three dimensional

works relative to geography, architecture, topography or science. Translations,

adaptations, arrangements of music and other alterations of a literary or artistic

works such as encyclopedias and anthologies which, by reason of the selection and

arrangement of their contents, constitute intellectual creations shall be protected as

such, without prejudice to the copyright in each of the works forming part of such

collections.

The published and unpublished works of authors, who are the nationals of

member countries, are covered under the protective umbrella of the Convention.

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The Convention has established a minimum term of protection of life plus 50

years or an alternative of 50 years from publication for anonymous and

pseudonymous works. It also recognized certain limitations to the exclusive rights

such as fair use privilege and a possible limitation on the right of recording a

musical works. A part from the authors exclusive economic rights, Berne

Convention requires that the author's moral rights be recognized and endure beyond

the life of the author. The developing countries have been given certain special

privileges beginning with the Stockholm revision in 1967. Similar privileges are

found in the appendix to Paris text of 1971. India is a member of the Berne

Convention. These provisions go a long way in preventing the plagiarism and other

firms of violation of copyrights.

b) Universal Copyright Convention

The Universal Copyright Convention was signed and entered into force on

September 6, 1952 and it was revised in 1971 at Paris. Even though the Berne

Convention has been the mainstay of international copyright; certain major states

like the U.S.A., Soviet Union and China did not joint it. Therefore the UCC was

developed as an alternative to Berne Convention to allow these countries to

participate in an international agreement. The UCC is under and administered by the

UNESCO of the UNO. The basis of the UCC is the national treatment and also the

requirement of maintenance of specific minimum legal standards by each contracting

state. The contracting states are under an obligation to provide adequate and

effective protection. The protection given is for published as well as unpublished

works. The convention limits the formalities that can be required of works first

published outside the territory of a member state. For such works the only

formalities allowed are that all the copies of the work must bear the symbol ©

accompanied by the copyright proprietor's name and the year of first publication

placed in such conspicuous manner so as to be noticed easily. The member countries

must grant a minimum copyright term of 25 years from publication, or life of the

author plus 25 years. The foreign authors of other member countries must be granted

exclusive rights for at least seven years.

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One notable feature of the UCC is that it contains a Berne safeguard clause

which prohibits a Berne Convention Country from denouncing Berne Convention

and relying on the UCC in its copyright relations with members of the Berne

Convention. 5The UCC was revised in Paris in 1971, in response to demands made

by the developing countries. Special provisions allow the developing countries to

obtain compulsory licenses under certain conditions to translate copyrighted works

for teaching, scholarship and research purposes. It also allows reproduction of

copyrighted works for use in systematic instructional activities. The UCC protects

the economic rights of the authors effectively. As January 1, 1996; 95 states where

members of UCC. India is a member of the UCC. The provisions of the UCC were

strengthened by the convention and protocols, of Geneva, 1952 and at Paris in 1971.

c) International Convention for the Protection of Performers, Producers of

Phonograms and Broadcasting Organizations

Phonogram means a sound recording. The rights in respect of phonograms and

performances and broadcasting are called neighboring rights. The Rome Convention

which was completed on October 26, 1961 and entered into force on May 18, 1964

basically intends to protect the neighboring rights. The beneficiaries of the convention

are performers, producers of phonograms, and broadcasters. The convention grants

protection to performers if their performance takes place in another contracting state,

if incorporated in a phonogram that is protected by the Convention. If not fixed on a

phonogram, and is carried by a broadcast, the Convention protects such broad-cast

also.

Under the Convention, performers are protected against the unauthorized

broadcast of their public performances and enjoy the rights to a first fixation of their

performance. Similarly, producers of phonograms enjoy the right to authorize or

prohibit the direct or indirect reproduction of their programs in the form of

phonograms. Any user of such phonograms has a duty to pay a single remuneration

equitable in nature to artists or producers for a public performance of a phonogram.

In so far as the broadcasting rights are concerned, broadcasting organizations

shall enjoy the right to the fixation, reproduction and rebroadcast of their broadcasts,

5 See Article XVII and Appendix declaration relating to article XVII of the Convention.

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subject to any limitations imposed under the domestic law. Generally the protection

is granted for a 20 year term, computed from the end of the year when the fixation

was made for phonogram and performances incorporated therein. If the performance

is not incorporated in a phonogram, the term will be calculated from the end of the

year when the performance took place. For broadcasts, the year when the broadcast

took place will determine the duration of protection.

The eligibility to participate in the Rome Convention is that a state must have

become a member of either the Berne Convention or the Universal Copyright

Convention. As of January 1, 1996, there were 50 states which became members of

the Rome Convention. India was not a member on that date.

2.3 COPYRIGHT RIGHT LAW IN UNITED STATES

The copyright law of the United States governs the legally enforceable rights

of creative and artistic works.

The purpose of copyright law is to promote the progress of science and useful

arts, by securing for limited time to authors and inventors the exclusive right to their

respective writings and discoveries. Copyright law has expanded coverage to include

the idea of stimulating the creation of as many works of art, literature, music and

other works of authorship in order to benefit the public.

The United States recognizes no absolute, natural right in an author to prevent

others from copying or otherwise exploiting his work. The copyright law gives

authors limited property rights in their works, but for the ultimate purpose of

benefiting the public by encouraging the creation and dissemination of more works.

The authors’ interest is secondary to that of the public. Copyright never gives rights

in the idea being expressed or in facts or other elements of the public domain which

an author may incorporate into his work.

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The United States copyright law protects "original works of authorship"

including literary, dramatic, musical, artistic and certain other intellectual works.

This protection is available to both published and unpublished works. Other works

include audiovisual works, derivative works, sound recordings, compilations,

pantomimes and choreographic works, pictorial, graphic and sculptural works,

architectural works etc.

An important limitation on the scope of copyright protection is the idea/

expression, while the copyright law protects the expression of an idea, it does not

protect the idea itself. The distinction between "idea" and "expression" is a

fundamental part of U.S. law.

Exclusive Rights of Owner of Copyright

The owner of copyright has exclusive right to do and to authorize others to do

a. To reproduce the work in copies or phone records.

b. To prepare derivative works based upon the work.

c. To publicly perform the works in the case of literary, musical, dramatic

and choreographic works, pantomimes and motion pictures and other

audiovisual works, and sound recordings by means of digital audio

transmission.

d. To distribute copies or phone records of the work to the public by sale or

other transfer of ownership or by rental, lease or lending.

e. To publicly displays the work in the case of literary, musical, dramatic

and choreographic works, pantomimes and pictorial, graphic or

f. First Owner of Copyright

The author of a work is the initial owner of the copyright. In case of joint

work, the authors of a joint work are co-owners of a single copyright in

the work. Ownership of copyright in a collective work; A collective work

is a collection of independent, or separate copyright works then, the

author is the owner in the absence of any agreement.

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Registration of Copyright

Copyright in United States automatically attaches upon the creation of an

original work of authorship. Registration with the copyright puts the copyright

holder in a better position if litigation arises over the copyright registration is

necessary to obtain statutory damages in case of infringement. To register, the

registrant must complete an application form and send it, along with the filing fee

and copies or phone records of the work to the copyright office.

Duration of Copyright

Works created in or after 1978 are extended copyright protection for a term

defined as 70 years after the death of the author. If the work is for hire then

copyright persists for 120 years after creation or 95 years whichever is shorter after

publication.

Rights of the Owner

The owner can assign the work to any person for further work, it is an

exclusive right and exclusive license require the transfer to be in writing.

Infringement

It requires a protected work, that the dependent copied the protected work,

that the dependants copying of the protected. Only protected works that the infringed

can be claimed remedy for infringement.

Remedies

Civil remedies include injunctions and damages. Injunction may be both

preliminary and permanent. Damages give choice of recovering i) their actual

damages and any additional profits of the defendant; ii) statutory damages equitable

relief can be claimed and both temporary and permanent injunctions are available to

prevent or restrain infringement of a copyright. Where the infringer is government

then injunctions are not available and only monetary damages can be seeked.

Criminal Penalties

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In addition to civil remedies the copyright act provides criminal sanctions for

willful infringement a) a fine of not more than $500,000 or imprisonment for not

more than five years or both for first offense; b) a fine of not more than Si million

and imprisonment for not more than 10 years; or both for repeated offences.

2.4 COPYRIGHT LAW IN U.K

The origins of Copyright Law in most European Countries like in efforts by

government to regulate and control the output of printers. In England the printers

known as stationers formed a collective organization, the stationers company. In the

16th century the stationers company was given the power to require all lawfully

printed books to be entered into its register. Only members of the stationers could

enter books into the register. This meant that the stationer's company achieved a

dominant position over publishing in 17th century England. But the monopoly

granted to the stationers company through the licensing Act 1662, came to an end

when parliament decided to not renew the act after it lapsed.

The long title of the statute as the world's first copyright statute if granted

publishers of a book legal protection of 14 years with the commencement of the

statute. It also granted 21 years of protection for any book already in print. The 14

year copyright term could be renewed for another 14 if the author was still alive after

the first term expired.

Authors Rights

The statute was the first to recognize the legal right of authorship, but it did

not provide a coherent understanding of authorship or author's rights. While the

statute established the author as legal owner, and so providing the basis for the

development of authors copyright. It also provided a 21 year copyright term to books

already in print. At the end of the 21 years granted by the statute the concept of

literary property was still a booksellers rather than author, an understanding emerged

that copyright originated in author's rights to the product of his labour. In the 200

years following the statute of Anne UK copyright law was developed through

legislations.

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Berne convention for the protection of literary and artistic works. UK signed

Berne Convention and passed the international copyright act 1886 for Great Britain

in order to fulfill the obligations to foreign authors that arose upon the UK ratifying

the Berne Convention on September 1887.

An orphan work is a work which is under copyright protection, but it is

difficult or impossible to contact the copyright owner. The original creator may be

unknown, or where the creator is known it is unknown who represented them. In

2008 the libraries and archives copyright alliance stated that it believes that the

majority of copyright works have little commercial value after a few years from

publication because the material was out of print, or sales were negligible or not

significant. It describe the orphan works problem as "unsurprising" since if a

copyright remains valuable the holder has a strong incentive to make him or herself

known, while if the copyright has little value the holder has no real incentive even to

respond to enquires.

In U.K. copyright tribunal should be responsible for granting licenses for the

use of orphan works.

2.5 COPYRIGHT LAW IN INDIA

As the law is not static it has to be changed, according to the changes in the

society. So also copyright law also changed in order to suit the changing needs of the

society. Hence many amendments have been made the copyright act till now from

the date of enactment. Now amendment of copyright bill 2010 is pending. The

amendments made to copyright act in India are discussed below.

The 1914 Act

The 1914 Act was a short statute of fifteen sections which annexed virtually

the whole of the U.K. copyright 1911 as its first schedule. It made a few minor

omissions. The major changes made by the 1914 Act were, in this writer's opinion,

first, it introduced criminal sanctions for copyright infringement (Sections 7 to 12).

Second, it modified the scope of the term of copyright; under section 4 the "sole

right" of the author to "produce, reproduce, perform or publish a translation of the

19

work shall subsist only for a period of ten years from the date of the first publication

of the work.”The author, however, retained her "sole rights" if within the period of

ten years she published or authorized publication of her work a translation in any

language in respect of that language. Vesting violations or property rights with

criminal sanctions can probably be understood as a part of general colonial legal and

political policies which sought to protect, generally, right to property over rights to

personal freedom.6

The modification of term of copyright for translation rights cannot be

explained by any reference to dominant characteristic of colonial policy. The

language of the Act might suggest a laudable policy of promoting wider diffusion of

Indian works in one language into other Indian languages, a consideration which

might have appeared distinctive to India as compared with U.K. There might also

have been the desire to promote the growth of publication industry in numerous

Indian languages. But whatever the intention, the impact was disadvantageous to the

authors and a boon to publishers. This can be seen from the following observations

in a hot of dissent when the continuation of the same provision was urged by the

joint select committee of the Indian parliament in 1956. R.D. Sinha "Dinker" argued

that this provision has "worked to the utter detriment of the authors". Referring to the

two distinguished Bengali authors he observed

Most of the novels by Sarat Chandra Chatterjee were translated in Hindi,

while the author was yet alive. The author's novels, in translation sold thousands of

copies, but the author did not get a pie out of the sake- proceeds... Something like

this happened in the case of Gurudeva (Tagore). Publishers in Hindi and other

languages were making good money out of the translations of his works, but the

poet, revered by the nation, was in his extremely old age touring the country for

money to support the Shanti- Niketan.7

It appears that mostly the Hindi language publishers benefited a great deal

from the modification of the term of copyright regarding the translations. This is not

entirely devoid of political significance as Hindi was emerging as a dominant

6 This observation is borne out also by the general approach to protection of property rights in the great Indian codes in the late nineteenth century.7 The report of the joint select committee, “The Gazette of India Extraordinary, Pt.2, 3.2, P.907 (1956).

20

language in Northern India. But it is idle to conjecture. A sociopolitical history of

colonial copyright law must probe this aspect further.

The early phases of the transplanted copyright law generated decisions like

Macmillan V. Suresh Chander Deb8 and Macmillan V.R.C. Cooper9 which have

become locus classicus of the law of copyright. At the same time it also generated a

ouris dependencia Indian judicial decisions as well as forensic styles have had

perforce to rely on UK recedents. The heavy hand of UK law still lies on Indian

creative works despite the reformulation of the law in 1957. Judicial interpretation is

perhaps most heavily influenced by U.K. precedents in the area of copyright law

than in any other. The slavish imitation of foreign precedents has occasionally led

intrepid Indian justices to remind the bar and the bench that the 1957 act is made by

"a sovereign legislature of this land" and the its interpretation "must be based upon

the object of the legislation and the language used" and that the "historical roots" of

the Indian law in UK law of copyright should have no higher function than that of

providing an "aid to thinking". It is hoped that his approach will prevail in course of

time; and that the umbilical cord with the British judicial law would be served.

The 1957 Act

The 1914 act was continued with minor adaptations and modifications till the

1957 act was brought into force on 2 January 1958. The bill seeking to revise the

entire law was introduced in the Rajya Sabha on 1st October 1955; the bill was

enacted in about eighteen months time on 4 June 1957. The expedition and priority

with which the law revision was accomplished is indeed remarkable, especially when

we recall that the bill was introduced within a few years of attainment of

independence and passed in the seventh year of the republic. Equal priority was

attached to other domains of the intellectual property law; but their reformulation

proved difficult and time consuming. 10

A number of factors impelled this early revision. First it was clear that

continued existence of the 1911 act through the 1914 act was unbecoming to "the 8 I.L.R., 1890, 17 Cal.1951.9 AIR 1924 P.C.75.10 Equally high priority was attached to revision of the patent Act 191; the law was revised only in 1970. Upendra Baxi, “Role of industrial property law in promoting indigenous inventive and creative activity” (WIPO, 1980).

21

changed constitutional status of India". Second, the 1914 act did not accord with the

1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright

Convention. Third, new and advanced method of communications rendered

modernization of the law necessary. Fourth, the need for an "independent self-

contained law" was also felt in the light of the experience of the "working" of the

1911 Act, and more important, of "the growing public consciousness of the rights

and obligations of the authors..."11

The Indian legislators had before them the report of the English Copyright

Committee and legislative proposals based thereon; they had also before them the

models provided, in their optional and obligatory features, by the relevant

International Conventions, the select committee had evidence of twelve

organizations, including the international confederation of societies of authors and

composers (Paris), the performing right society (London), British Copyright Council

and the Columbia Gramophone Company Ltd. The report of the select committee

appears to be among the briefest in the annals of Indian parliament; 12but, in many

senses, it made major innovations which were ultimately enacted. Perhaps the only

significant matter, on which its proposals were not accepted, in view of powerful

dissents referred to earlier, pertained to a ten year term of copyright for translations;

the original proposal in the bill prevailed here over the committee's formulations.

But the committee's views prevailed on other vital matters. For example, the original

proposal of the bill to reduce the term of copyright for life of the author and twenty

five years post-mortem was voted by the committee (despite a note of dissent) on the

ground that India must fall in line with international conventions. The committee

also negatives the bills proposal, on similar grounds, making registration of

copyright a precondition for infringement proceedings.13

The Act, as it emerged, was not in any sense a replication of the English

legislative proposals. In this sense, the 1957 Act was the first truly Indian legislation

'imperial' law. The Act was not sufficiently far-sighted; it, for example, does not

protect the right of the performers adequately. In many respects it is drafted in ways

11 See the statements of objects and reasons to the bill, Supra note (34 A).12 It comprises ten pages of majority report, and six notes of dissent totaling seven pages. 13 Misra Bandhu Karyalaya Vs. Koshal, AIR 1970 M.P. 261 to 267.

22

which make it meaningful only to judges and lawyers and sometimes after well over

two centuries of the subjection to the not even to them. But the fact remains that the

country had its own law of copyright for the first time in contemporary history.

The general scheme and the principal features of the 1957 Act are as follows

Chapter I, III, IV, V deal with copyright and its ownership; Chapter XI with

infringement; Chapter IX with international copyright; Chapter X with registration

of copyright; Chapter XI1-XIV with civil and criminal remedies and Chapter II, VI,

VII and X with powers and functions of the registrar of copyrights and the copyright

board. A short special Chapter VIII deals with the rights of broadcasting authorities.

The Act is divided into fifteen chapters and contains seventy nine sections. In

addition, the government has enacted copyright rules under section 78 of the Act.

The rules deals with matters of procedure primarily in matters like applications of

licenses for translations, performing rights societies’ relinquishment and registration

of copyright and related matters. In addition to the act and the rules, we must note

that the government is empowered to make an order directing that any or all the

provisions of 1957 act may apply to copyright in foreign works and in works of

certain international organization. The orders are to be laid before parliament and

subject to modification by it. The orders have to be published in the government

gazette.

The 1957 act makes certain administrative arrangements for implementation.

It creates, for the first time, two distinct institutions; the copyright office and the

copyright board. The ministry of education and social welfare is the administrative

ministry overseeing the copyright office. A principal function of the office is to

maintain, in all relevant particulars, a register of copyright; to entertain and deal with

applications for compulsory licenses and to inquire into complaints of importation of

infringing copies. The registrar performs judicial functions in relation to these tasks;

and an appeal is provided from his decision to the copyright board.

The Board has a number of essential functions under the Act. All of them

involve determination of claims of reveal rights and liabilities; the joint select

committee on the bill was right to insist that the board should be headed by a

23

chairman who is a "judge of Supreme Court or a high court" or is so qualified to be a

high court judge. The principal functions of the board are to consider and determine.

1. Whether any literary, dramatic, musical or artistic work, or records, are

issued in "sufficient quantities" with in the meaning of section 3[section

6(a)];

2. Whether the term of copyright is shorter in any other country as compared

to the term provided under the Act [section6(b)]'

3. Application for licenses to produce and publish a translation of literary or

dramatic work in any language [section 32];

4. Complaints that certain copyright works are unreasonably withheld from

public [section 31];

5. Objections of tariff of fees, charges and royalties announced by performing

rights societies [section 33-36].

6. Rectification of the register of copyrights [section 50],

The Board is required to circuit in zones in various parts of India; and

individuals may file proceedings in the appropriate zones where they voluntarily

reside or carry on business or work for personal gain. An empirical investigation of

the work load and characteristics of its decision - making process, is over due,

because both institutions have been specifically created with a view to assisting

authors; it is important in any design of revision of the law to ascertain to what extent

this objective has been specifically created with a view to assisting authors; it is

important in any design of revision of the law to ascertain to what extent this

objective has been actually attained in practice.14

AMENDMENTS TO THE ACT

The basic features of the Copyright Act, 1957 conform to the provisions of

the two International Conventions on copyrights, namely (i) Berne Convention

and (ii) The Universal Copyright Convention. India is a member of both the

14 Copyright Law and justice in India (1986), J.I.L.I, 498-504, No.4, Vol.28.

24

Conventions, which were revised at Paris in 1971. It provides certain special

concessions in favour of developing countries to enable them to grant compulsory

licenses for translation and reproduction of foreign works required for educational

purposes in accordance with the prescribed procedure. India played an important

role in the discussions leading to the concession.15

a. 1983 Amendment In August 1983, the parliament of India enacted the

Copyright (Amendment) Act, 1983 with the specific purposes of (a) incorporating

the provisions of compulsory licenses for translations and reproduction.

1. Kala Thairani, copyright The Indian experience, Allied publishers,

1987 pp.41-43 foreign works required for instructional purposes.

Providing adequate protection of author's rights; and

Removing administrative drawbacks and other lacunae experienced in the

administration of the Copyright Act, 1957.

The bill provides, among other things, for the following amendments the Act

to give effect to the above proposals, namely

1. To provide compulsory licensing for the translation of a foreign work after

the expiry of three years from the publication of the work and if the

translation of the work is in a language not in general use in any developed

country, after the expiry of a period of one year from such publication if such

work is required for the purposes of teaching, scholarship or research.

2. To provide for the compulsory licensing of the reproduction of any edition of

a foreign literacy, scientific or artistic works for the purposes of systematic

instructional activities if, after the expiry of certain periods (which will vary

depending on the subject-matter of the works) from the date of the first

publication of that edition, the copies are not available in India for the same or

similar work.

15 Kala Thairani, Copyright The Indian Experience, Allied Publishers, 1987, P.41-43.

25

3. It is proposed to provided that in the case of unpublished works where the

author is either dead or unknown or the owners of the copyright cannot be

traced, any person wishing to publish the material or a translation thereof may

advertise his proposal and thereafter apply to the copyright Board for

permission which, while granting such permission, would fix and appropriate

royally. The royally could be deposited in the public account of India.

4. It is proposed to provide assignments of copyright from authors to publishers

and to empower the Copyright Board to decide disputes arising out of such

assignments which may extend to permitting the author to withdraw from the

assignment.

5. It is proposed to prescribe the term of copyright in works owned by bodies

corporate as fifty years from the beginning of the calendar year next

following the year in which the work is first following the year in which the

work is first published as in the case of government works.

6. Broadcasting authorities are also being permitted to translate foreign works

for broadcasting for the purpose of systematic instructional activities.

7. To provide for copyright in lectures, addresses etc, delivered in public and for

the publication of the entries made in copyright register.

b. 1984 Amendment As the piracy has become a global problem due to the rapid

advances in technology and has assured alarming proportions all over the world, all

the countries started to make efforts to meet the challenge by taking stringent

legislative and enforcement measures. This problem of piracy and necessity for

taking sufficient anti-piracy measures were also voiced by members of parliament at

the time of the consideration of the Bill to bring in the 1982 amendment.

In the contemporary world, mainly there are three types of piracy, namely

(i). piracy of the printed word; (ii) piracy of sound recordings (iii) piracy of

cinematograph films. The object of the pirate in all such cases is to make quick

money and avoid payments of legitimate royalties and taxes. The emergence of new

techniques of recordings, fixation and reproduction of audio programs, combined

26

with the advent of video technology have greatly helped the pirates. The loss to

government in terms of tax evasion also amounts to cores of rupees.

In view of those circumstances, it was proposed to amend the Copyright Act,

1957 to combat effectively the piracy that is prevalent in the country.

The Bill of the proposed 1984 amendment contained the following objects

1. To increase the punishment provided for the infringement of the copyright,

namely, imprisonment of 3 years, with a minimum punishment of imprisonment

of 6 months, and a fine upto Rs. 2 lakhs, with a minimum of Rs. 50,000/-

2. To provide for enhanced punishment in case of second and subsequent

convictions.

3. To provide for the declaration of the offence of infringement of copyright as an

economic offence so that the period of limitation provided in the code of

criminal procedure, 1973, for offences will not be applicable to this offences;

4. To specifically make the provisions of the Act, applicable to video-films and

computer programs;

5. To require the producers of records and video films to display certain

information in the record, video films and containers, thereof.

This 1984 Amendment came into force on 08-10-1984 immediately

thereafter; several writ petitions seeking a stay of amending law were filed in a

number of high courts across the country and in the supreme court of India.

On an appeal filed by the aggrieved applicant in film Federation of India Vs

Union of India,16 a Division Bench of the High Court dismissed the appeal and

observed

"A legislative enactment is intended to give effect to some policy and

implement it private litigants or persons who happen to be beneficiaries of such a

policy enacted in the form of legislation can really have no say in a matter which is

16 AIR 1986 Mad.43 at P.65-67.

27

exclusively within the domain of the government activity. It is primarily and wholly

for the government to support its own legislation though in case the court wants

some assistance the court can permit a party to intervene but that is for the limited

purpose, of assistant to the court for deciding the dispute before it "

Where the validity of a statute ............... is challenged a private litigant who

happened to be the beneficiary of the policy envisaged under the Act cannot be

allowed to be joined as a party because what is sought to be done is not to put the law

in motion but to make an attempt to defend a legislation, to which government alone

was necessary party to support its own legislation."

The Court refused to accept as a principle that a beneficiary of a statute is

entitled to be heard in addition to the state or Union government as the case may be

in support of a statutory enactment.

c. 1994 Amendment It was observed that the anti piracy provisions incorporated in

the 1984 amendment had not worked effectively, a working group was set up in

1987 by the government to study the provisions of the Act and to recommend

suitable amendments, taking into consideration the advances made in

communication technology such as video, satellite and other means of simultaneous

communication and to fulfill India's obligations as a signatory to the Berne

convention and the Universal Copyright Convention. In July 992, the copyright Bill

was introduced in the parliament. The purposes of the proposed legislation were

explained as under.

"Effective copyright protection promotes and rewards human creativity and,

in modern society, an indispensable support for intellectual, cultural and economic

activity copyright law promotes the creation of literacy, artistic, dramatic and

musical works, cinematograph films and sound recordings by providing certain

exclusive rights to their authors and creators. The law relating to copyright and

related rights has been under comprehensive review of the government for some

time, taking into account the difficulties expressed by different groups of copyright

owners and others, the experience gained from the administration of the existing law

28

and the situation created by various technological developments that have taken

place".

Salient features of 1994 Amendment

The amending act provided for (i) performers rights protection covering any

visual or artistic presentation made live by one or more performers, (ii) copyright

societies, seeking to promote collective administration of the rights of authors,

composes and other creative artists, (iii) Assignment of copyright by an author or

artistic to protect the interests of both assignor and assignee; and (iv) Computer

programs, cinematograph films and sound recordings; protection. A large number of

the provisions in the amending legislation are self-explanatory and clarificatory in

nature.

d. 1999 Amendment The Copyright Act was again amended in 1999 which

amended definition of 'literacy work', meaning of copyright in respect of a computer

program, increased the term of copyright of performers from 25 to 50 years, inserted

certain Government to apply the provisions relating to Broadcasting organizations

and performs to broadcasting organizations and performers in certain other countries,

and power to restrict rights of foreign broadcasting organizations and performers.

CHAPTER-3

COPYRIGHT - ANALYSIS OF THE LAW

Section 14 of the 1957 Act defines copyright as an "exclusive right by virtue

of and subject to the provisions of this Act" to do and authorize doing of any number

of prescribed acts in relation to literary, artistic, dramatic works and to the

cinematograph films and records".

In general, copyright protection can be secured for all binds of creative works

(literary, artistic, musical and dramatic works and so on). However, the U.S.

29

copyright code, title 17, section 5, lists the following classes of works that can be

copyrighted 17

1)Books, including composite and cyclopedic works, dictionaries, gazettes and

other compilations.

2)Books including composite newspapers.

3)Dramatic or dramatic-musical compositions.

4) Lectures, sermons, addresses (prepared for oral delivery)

5)Musical compositions

6)Maps

7)Works of art; models or designs for works of art

8)Reproduction of a work of art

9) Drawings for plastic works of scientific or technical

10) Character

11) Photographs

12) Prints or pictorial illusions, including prints or labels

13) Used for articles or merchandise

14) Motion picture photoplays

15) Motion pictures other than photoplays

16) Sound recording

17) Sculptures

18) Audio-visual works

17 William Z. Nasri “Crisis in Copyright” Marcel Dekker, Inc., New York.

30

19) Web pages and computer programs.

Almost all works created after 1978, even those with no mention of copyright,

have copyright protection.

3.1 MEANING OF COPYRIGHT

Copyright is defined in the concise oxford dictionary as "the exclusive right

given by law, for a certain term of years, to an author, composer etc. (or his

assignee) to print, publish and sell copies of his original works".

The moral justification for providing legal protection is based as on the

principle that a man is entitled to the fruits of his brain as much as he is entitled to

the fruits of his mechanical labour. The universal declaration of human rights says

"Everyone has the right to the protection of the moral and material interests

resulting from any scientific, literary or artistic production of which he is the

author".

The unabridged Webster's third international dictionary defines a photocopy

as "a negative or positive photographic reproduction of graphic matter (as drawing

or printing)".

The oxford English dictionary defines "copying" as "the action of the verb

copy". It also defines "copy" as "an imitation of anything; a reproduction of an

original and in a sense, copy reflects plenty and abundance (copious quantity)".18

Black's law dictionary defines "copy" as a transcript or a double of an original

writing.19

Copying can be done by hand or by a machine. The first mechanical

duplicator of documents was invented late in the 19 th century by Thomas Alva

Edison. Mr.Dick of A.B. Dick Company of Chicago a former lumberman, who

became bored with copying his price list by hand, obtained the rights to produce and

market Edison's mimeograph.20

18 Oxford English Dictionary, Oxford Clarendon press, 1933, Vol.11, P. 978-979. 19 Black’s Law Dictionary, 6th ed. St. Paul West 1951, P. 405.20 John Brooks, “Profiles “Xerox Xerox Xerox Xerox” The New York 63 46 (April 1, 1967).

31

The Oxford English Dictionary21 provides several definitions for the work

"copy" (to imitate, without reference to an original, and so forth). It also defines

"copy" as "plenty", abundance. The same dictionary makes it clear that during the

middle ages there was an area of deceit associated with the work "copy". From the

late 16th century until Victorian times "copy" and "counterfeit" were almost

synonymous. It was also a favorite Victorian habit to call a person a "pale copy" of

another.

On the other hand, Black's Dictionary defines copy as "a transcript or a

double of an original writing.22" And as it related to the law of copyright, a copy is "a

reproduction or duplication of a thing or that which comes so near to the original as

to give to every person seeing it the idea created by the original."23

The commercial interest of book publishers had called for a "copyright"24 and

much the same applied to artistic works. But in the arts of drama and music,

exploitation occurred as much through performance as through the sale of copies.

Play wrights, composers and their commercial associated sought a "use" right upon

each public performance of the work. In 1833 this distinct performing right was

given in dramatic works 25 and in 1842 extended to musical works. The 1911 Act

gave the producers of sound recordings their own exclusive right to prevent the

reproduction of their recordings (and as the courts later held, also to prevent public

performances of them).26 Copyright protection gradually expanded to cover other

domains of intellectual creation like sculpture, architecture, choreography and

broadcasting.

Section 14 of the 1957 Act defines copyright as an "exclusive right, by virtue

of and subject to, the provisions of this Act "To do and authorize doing of any

number of prescribed acts in relation to literary, artistic and dramatic works and to

cinematograph films and records. Despite this clear formulation, judges and jurists

often speak of copyright as a kind of "negative right", which is both in accurate and

21 Oxford English Dictionary, Oxford Clarendon press, 1933, Vol.11, P. 978-979.22 Black’s Law Dictionary, 4th ed. St. Paul, Minn; West 1951, P. 405.23 Mc Connor V. Kaufman, 49, F. Supp, (S.D. New York, 1943), P. 738-744.24 Back V. Longman(1777), COW, P. 623.25 Copyright The development and exercise of the performing right (1980), Chap.3-5.26 CA 1911, S. 19(1); Gramphone Co. V. Cawardine (1934), Ch.450.

32

misleading. It bears reiteration that the set of rights subsumed under the rubric

"copyright" is primarily defined in affirmative and positive sense; copyright

constitutes property rights in personam and in rem, violation of which can be

redressed under the provisions of the Act. It is also important to stress at the outset

that copyright is defined as a statutory right, owing its existence and stature within

the four corners of the Act.

The rights of authors of literary, artistic, dramatic and musical works, cinema

films and records are in some respects similar; The meaning of copyright, for each

category of work, is quite extensive especially when we note that the definitions of

most genres of work is inclusive rather than exhaustive and that copyright protection

extends to all kinds of work including those which represent "originality at vanishing

point".27 Even so the Act be section 15 specifically excludes designs which is

capable of being registered under the Indian patents and designs act 1911.28 This

exclusion is understandable. What is not so readily understandable is the fact that by

necessary implication it is legally permissible to register or claim a copyright in a

trademark, which is also capable of registration as a trademark, receiving thus dual

protection. Since the registration of copyright is relatively simple and expeditious

process as compared with trademarks, the office of the registrar of copyright is

inundated with registration application for copyright in marks as "literary" or

"artistic" works.

Besides-concurrent registration of both trademark and copyright in relation to

the same matter often causes understandable, but avoidable, judicial confusion

where, for example, standards apt for judging passing-off action for marks tend to

rub off to the determination of copyright infringement in the same proceedings.29

Time is certainly ripe for Indian Parliament to provide for exclusion of trademarks

from the scope of Sec.15 of the Act.

Definition of Copyright

27 Govindan V. Gopalakrishnan, AIR 1955 Mad. 391 to 393.28 Copyright in a design capable of being registered under the patents and designs act shall cease as soon as the article to which the design is applied has been reproduced by an industrial process (Sec.15(2)).29 Khemraj V. Garg 7 Co., AIR 1975 Delhi 135.

33

Section 14 of the Act gives a comprehensive definition of term "copyright".

Sec.14 "Copyright" means the exclusive right subject to the provisions of this

Act, to do or authorize the doing of any of the following acts in respect of a work

or any substantial part there of namely -

a) In the case of a literary, dramatic or musical work, not being a

computer program,

i) to reproduce the work in any material form including the storing of

it in any medium by electronic means;

ii) to issue copies of the work to the public not being copies already in

circulation.

iii) to perform the work in public, or communicate it to the public;

iv) to make any cinematograph film or sound recording in respect of

the work;

v) to make any translation of the work

vi) to make any adaptation of the work

vii) to do, in relation to a translation or adaptation of the work, any of the

acts specified in relation to the work in sub clauses (i) to (vi);

b) in the case of a computer program

i) to do any of the acts specified in clause (a),

ii) to sell or give on commercial rental or offer for sale or for commercial

rental any copy of the computer program.

Provided that such commercial rental does not apply in respect of computer

programs where the program itself is not the essential object of the rental;

c) in the case of an artistic work,

34

i) to produce the work in any material form including depiction in three

dimensions of a two dimensional work or in two dimensions of a three

dimensional work;

ii) to sell or give on hire, or offer for sale or hire, any copy of the computer

program, regardless of whether such copy has been sold or given on hire

on earlier occasions";

iii) to communicate the work to the public;

iv) to is copies of the work to the public not being copies already in

circulation;

v) to include the work in any cinematograph film;

vi) to make any adaptation of the work;

vii)to do in relation to an adaptation of the works - any of the acts specified in

relation of the work in sub-clauses (i) to (iv);

d) in the case of a cinematograph film

i) to make a copy of the film, including a photograph of any image forming

part thereof;

ii) to sell or give on hire, or offer for sale or hire, any copy of the film,

regardless of whether such copy has been sold or given on hire on earlier

occasions.

iii) to communicate the film to the public;

e) in the case of a sound recording

i) to make any other sound recording embodying it;

ii) to sell or give on hire, or offer for sale or hire, any copy of the sound

recording regardless of whether such coy has been sold or given on hire on

earlier occasions.

iii) to communicate the sound recording to the public;

35

Analysis of Statutory Meaning

The definition and meaning of copyright given under section 14 can be

analysed as follows

i) It means an exclusive right.

ii) It authorizes doing of different acts in different categories of works.

iii) It means, in the case of literary, dramatic or musical work not being a

computer program The exclusive right -

• to reproduce the work in any material form including its storing.

• to issue copies of work to the public, if they are already not in

circulation.

• to perform the work in public; or communicate it to the public.

• to make cinematograph film or sound-recording in respect of the

work;

• to make any translation of the work

• to make any adaptation of the work; and

• to do, in relation to a translation or an adaptation of the work, any of

the acts mention here in above.

3.2 SUBJECT MATTER OF COPYRIGHT

36

37

Copyright in Literary, Dramatic, Musical and Artistic works

Copyright subsists, under section 13, in three classes of works (a) original

literary, dramatic, musical and artistic works; (b) cinematograph film; and (c) sound

recording. The requirement of 'originality' mentioned in the section does not refer to

ideas but to the manner and material forms of their expression. The word original

does not mean that the work must be the expression of original or invented thoughts,

but not copied from other work.30 Any thing written by an author by his own skill,

labour and judgment, may have a copyright unless it is directly copied or evasively

initiated from another's work.31 Rajasthan High Court had held that the 'original

work' does not mean that the work must be the expression of original or invested

thought. The requirement of 'originality' in Indian law, as elsewhere does not refer to

ideas but rather to the manner and material forms of their expression.32

The objective of copyright, in India is stressed, not to 'create monopoly in

ideas', rather, the protection aims at prevention of unlawful reproduction of dealing

with the manner and material form in which ideas are expressed.33

Originality for the purpose of copyright law relates to the expression of

thought but such expression need not be novel. What is protected is expression of

thought the form, formulation, order, plan or arrangement of presentation as

testifying to the investment by the author of mental faculties, skills, competence,

craftsmanship, knowledge, labour and capital in the production of any work. In other

works, the requirement of originality is an elliptical way of expressing the idea that

the work should not be a substantial copy of another work; or more colorfully (but

less precisely) it should not amount piracy (or to vary the usual metaphor a little,

hijacking) of another's skill, competence, craftsmanship, labour and capital. In a

sense, copyright law protects the author against dishonest and willful

misappropriation or theft of the author's efforts.

Obviously, then the notion of 'originality' does not even entail a modicum of

novelty or creativity. The extent or amount of 'originality' in expression or material

30 Macmillan Company Ltd. Vs. K&J Co-Op, AIR 1924 PC 75 at P.8331 Ibid at P.81.32 N.T. Raghunathan V. AIR 1971, Bom 48; R.G. Ananda Vs. Delux Films, AIR 1978 SC 1613 at 162733 Ibid.

38

form may be very small but that small amount is protected by law.34 The law of

copyright it has been well said protects originality even at "its vanishing point".35

Literary Works

Literary work has been defined under section 2(o) of the act, as including the

computer programs, tables and compilations including computer data bases. The

judiciary interpreted the literary works as which is expressed in print or writing

irrespective of the question whether the quality or style is high. In the case of

University of London press Vs. University Tutorial press36 and also in an Indian

case of Agarwal Publishing House Vs. Board of High School and Intermediate

Education.37 The courts have held that even examination papers would fit in the

definition of literary work, taking into account the expression of the idea in that

work.

To determine whether a literary work is capable of protection, the test is that

of originality. Some illustrations of original literary works.

i. Dissertations.

ii. Writings, sermons and sayings of religious preachers.38 News paper

telegrams, rules of games, rules of foot ball compilation and tallies for

bridge parties.39

iii. Dictionary involving considerable amount of labour, skill and

judgment.40

iv. Examination question papers

v. Head notes of law reports and other case reports.

vi. The analysis and presentation of facts in historical books etc.

34 Govindan V. Gopalakrishnan, AIR 1955 Mad 391 at 39335 Ibid.36 University of London Press Vs. University Tutorial Press, 1916 2ch.601.37 AIR 1967 All 191.38 Mavens Crafts S. Herbert (1980) RPC 193.39 Under Sec.2(h) of the Act. Sec.2(ffc) of the Act for definition.40 Satsang Vs. Kiran Chandra Mukhopathyay, 1990 Raj. S. Mohan lal Gupta Vs. Board of Education (1978)1 PLR 83.

39

Dramatic Works

The "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.

The definition of 'dramatic work' a motion picture cannot be regarded as a

piece of recitation or a choreographic work or entertainment in dumb show.

The Bombay High Court has recently held that in Fortune films V. Dev

Anand,41 in view of the specific exclusion of the cinema films ran the definition of a

dramatic work, that an actor in a cinema film may not claim any copyright in his

acting. Moreover such acting, the court held, does not fall within the categories

"pieces of recitation", "choreographic work" or "scenic arrangement in a dumb

show..."

Performance of a film actor would not qualify as a dramatic work, it was held

by Supreme Court's decision in Indian Performing Rights Society (IPRS) vs. Eastern

India Motion Picture (EIMP)42

Musical Work

Copyright protection in musical work, means a work consisting of music and

includes any graphical notation of such work. Delhi High Court held that Musical

work is not merely a combination of melody and harmony or either of them, it must

be printed, reduced to writing or otherwise graphically produced or reproduced.43

Copyright in Computer Program

In case of computer programs, copyright extends to

i) Doing any of the acts like reproduction, storage and translation etc, which

can be done in respect of the literary, dramatic or musical works; and

ii) Selling or giving on hire, or offering for sale.

Artistic Works

41 AIR 1979 Bom.17.42 AIR 1977 SC 1443.43 Gramaphone Co. Vs. Super Cassette Industries, 1996 PTC 252(Del)

40

Any colour, scheme or get up or layout or arrangement of any alphabets or

features is undoubtedly an artistic work. The distinctive features including the style

of the letters or alphabets are also capable of protection under copyright.44 When

once copyright is claimed under designs act then it cannot be claimed protection

under copyright for artistic work.

Artistic works cover a wide range of works i.e. painting, sculpture, drawing,

an engraving or a photograph. The drawings and brochures prepared by a scientist or

any other technical expert, all these works come under artistic works to claim

protection they must be original of hire any computer program whether in circulation

or not. Indian copyright act legislation is advanced in protecting the computer

programs from piracy and it is possible through the Amendment in 1994.

Computer program means a set of instructions, expressed in words, codes,

schemes or in any other form including a machine readable medium, capable of

causing a computer to perform a particular task or to achieve a particular result. It

was defined under see 2(ffc) of copyright Act, Delhi High Court held in a recent case

that list of clients and addresses designed by an advocate or law firm amounts to a

computer data base, and it is protected under literary work under section 2(o) of copy

right Act, 1957.45 Amendment of 1994 included the works of the film artist is

protected under the head "performer's right".

Copyright in Cinematograph Film

A cinematograph film includes sound track of a film and the sounds embodied

in a sound track which is associated with the film.46 Video tapes come within the

44 Glaxo India Ltd. Vs. Akay Pharma Pvt. Ltd., 2002(2) Ray 275. Microfibres Inc. vs. Giridhar and Co., 2006(1) Raj 301(Del).45 Dilject Titus Vs. Alfred A. Adebare, 2006(3) Raj 112 (Del).46 Indian Performing Rights Society Vs. Eastern Indian motion picture Association AIR 1977 SC 1443 at P.1450, See also Fortune Films International Vs. Dev. Anand, AIR 1979 Bom.17.

41

expression cinematograph film in view of the extended definition in the Act.47 Video

films are deemed to be works analogous to cinematograph.48 Video and T.V. are

cinematograph and both are instruments of representation of movie pictures or series

of pictures and that are capable of use for the reception of signs, signals, images and

sounds. Copyright protection extends to making a copy of the film, taking a

photograph of any image forming part of the film. Selling, giving in hire or offering

for sale or hire any copy of the film, irrespective of its earlier sale or hire, and

communicating the film to the public.

Copyright in Sound Recordings

Sound recording means a recording of sound from which such sounds may be

produced regardless of medium on which such recording is made or the method by

which the sounds are produced.49

Singers, music composers and manufacturers and producers of audio and

video cassettes normally become the victims of piracy in case of sound recordings.

There are also sound recordings of musical, literary and dramatic works available in

the form of "pre-recorded" phonograms, which are produced by the recording

industry. Any "record" such as a tape, vinyl disc, compact disc, compact cassette, or

other devices embodying sounds which are capable of being reproduced there from

are protected copyright works.

3.3 OWNERSHIP OF COPYRIGHT

The author of a work shall be the first owner of the copyright, ownership of

copyright exists in literary, dramatic or artistic works, photographs, address or

speech delivered in public, government work and work made or first published by or

under the direction or control of any public undertaking.

Ownership Of Copyright

Author has been defined under sec. 2(d) of the Act, as

i) In relation to a literary or dramatic works, the author of the work.

47 Entertaining Enterprises, Mad. Vs. State of Tamil Nadu, AIR 1984 Mad 278.48 Indian Performing Rights Society Ltd. AIR 1977 SC 1443.49 Under Sec.2(xx) of the Copyright Act, 1957 as submitted by the Copyright Act, 1994 Sec.2, w.e.f. 10.05.1995.

42

ii) In relation to a musical work, the composer.

iii) In relation to an artistic work other than a photograph, the artist.

iv) In relation to a photograph, the person taking the photograph.

v) In relation to a cinematograph film or sound recording, the producer; and

vi) In relation to any literary, dramatic, musical or artistic work which is

computer generated, the person who causes the work to be created. In all

these works author is entitled to the firs owner of the work.

When the work is to be created. In all these works author is entitled to the

first owner of the work.

When the work is created by joint authors then both authors are entitled to

the ownership if there is intellectual contribution by two or more persons.

When the work is produced by the member of an undivided joint Hindu

family, though he is a member of joint family copyright is vested only to that

member who had produced it.

Ownership in Government works, the government will be the first

owner, unless there is an agreement to the contrary.50

Ownership of Copyright and rights of the owner

Column Genre Rights

A a. Literary works 1. Right to / reproduce the work in any

material form S.14 (a)(i); (b)(i).

2. Right to publish the work S.14 (a)(ii); (b)

(ii).

50 Under Sec.17(d) of the Act.

43

3. Right to make any adaptation of the work

S.14 (a)(vii); b(iv).

4. Right to translate the work.

5. Right to convert into music / record.

b. Artistic works i. Right to perform in public

ii. Right to broadcast the work

iii. Right to adapt or copy the work.

iv. Right to make a cinematograph film.

v. Right to create sound track / recordings.

c. Dramatic works i. Right to reproduce the work

ii. Right to publish the work in the material

form.

iii. Right to make a cine film.

iv. Right to adapt the work.

d. Musical works i. Right to broadcast the work.

ii. Right to perform the work in public

iii. Right to make sound track or recording

iv. Right to copy the work.

e. Computer Programs i. Right to use in literary work, drama artistic

work, music, engineering design. Sports /

games and others.

f. Cinematograph film i. Right to make a copy of the film. [S14(c) (i)]

ii. Right to cause the film, in so far as it consists

of sounds to be heard in public (S.14(c)(ii).

iii. Right to cause the film, in so far as it consists

of visual images, to be seen in public.

iv. Right to communicate the film by radio

diffusion S.14(c)(iv).

v. Right to make any record "embodying the

recording in any part of the sound track

associated with the film by utilizing such

sound track" S.14(c)(iii).

44

b. Sound recording i. Right to make any other record embodying

the same recording S.14(d)(i)

ii. Right to "cause the recording embodied in

the record to the heard in public". S.14(d)(ii).

iii. Right to "communicate the recording

embodied in the record by radio diffusion"

S.14(d)(iii).

h. In respect of all

works

i. Right to total or partial assignment (S.18);

testamentary disposition (S.20) and right to

relinquishment (S.21).

ii. Right "paternity" (that is, "right to claim

authorship of the work" despite assignment,

total or partial)

iii. Right to "integrity" in works (that is, right to

object to distortions, mutilations of work,

which prejudice authors’ honour or

reputation) (S.57).

iv. Right to make sound track or recording

3.4 REGISTRATION OF COPYRIGHT

In general, copyright registration is a legal formality intended to make a public

record of the basic facts of a particular copyright. However, registration is not a

condition of copyright protection. Even though registration is no a requirement for

protection, the copyright law provides several inducements or advantages to

encourage copyright owners to make registration. Among these advantages are the

following

Registration establishes a public record of the copyright claim.

Before an infringement suit may be filed in Court, registration is necessary for

works of U.S. origin.

45

If made before or within 5 years of publication, registration will establish

prima facie evidence in Court of the validity of the copyright and of the facts

stated in the certificate.

If registration is made within 3 months after publication of the work or prior to

an infringement of the work, statutory damages and attorney’s fees will be

available to the copyright owner in Court actions. Otherwise, only an award

of actual damages and profits is available to the copyright owner.

Registration allows the owner of the copyright to record the registration with

the U.S. Customs Service for protection against the importation of infringing

copies.

Registration may be made at any time within the life of the copyright. Unlike

the law before 1978, when a work has been registered in unpublished form, it is not

necessary to make another registration when the work becomes published, although

the copyright owner may register the published edition, if desired.

Registration Procedures

Original Registration

To register a work, send the following three elements in the same envelope or

package to

Library of Congress

Copyright Office

101 Independence Avenue

SE Washington, DC 20559-6000

1. A properly completed application form.

2. A nonrefundable filing fee”’ for each application.

3. A no returnable deposit of the work being registered. The deposit requirements

vary in particular situations. The general requirements follow. Also note the

information under “Special Deposit Requirements”

46

If the work was first published in the United States on or after

January 1, 1978, two complete copies or phonorecords of the best edition,

If the work was first published in the United States before January

1, 1978, two complete copies or phonorecords of the work as first published.

If the work was first published outside the United States; one

complete copy or phonorecord of the work as first published.

If sending multiple works, all applications, deposits, and fees

should be sent in the same package. If possible, applications should be

attached to the appropriate deposit. Whenever possible, number each package

(e.g. 1 of 3, 2 of 4) to facilitate processing.

Renewal Registration

To register a renewal, send

1. A properly completed application Form RE and, if necessary Form RE

Addendum, and

2. A nonrefundable filing fee for each application. (See Note above). Each

Addendum form must be accompanied by a deposit representing the work

being reviewed. See Circular is, Renewal of Copyright.

Complete the application form using black ink pen or type. You may

photocopy blank application forms. However, photocopied forms submitted to the

Copyright Office must be clear, legible, on a good grade of 8V * 11” white paper

suitable for automatic feeding through a Photocopier. The forms should be printed,

preferably in black ink, head-to-head so that when you turn the sheet over, the top of

page 2 is directly behind the top of page 1. Forms not meeting these requirements

may be returned resulting in delayed registration.

Pre-registration

Preregistration is a service intended for works that have had a history of

prerelease infringement. To be eligible for preregistration, a work must be

unpublished and must be in the process of being prepared for commercial distribution.

47

It must also fall within a class of works determined by Register of Copyrights to have

had a history of infringement prior to authorize commercial distribution.

Preregistration is not a substitute for registration. The preregistration application is

only available online.

Special Deposit Requirements

A special deposit requirement exists for many types of works. The following

are prominent examples of exceptions to the general deposit requirements

If the work is a motion picture, the deposit requirement is one complete copy

of the unpublished or published motion picture and a separate written

description of its contents, such as continuity, press book, or synopsis.

If the work is a literary, dramatic, or musical work published only in a

phonorecord, the deposit requirement is one completed phonorecord.

If the work is an unpublished or published computer program, the deposit

requirement is one visually perceptible copy in source code of the fist 25 and

last 25 pages of the program.

For a program of fewer than 50 pages, the deposit is a copy of the entire

program. For more information on computer program registration, including

deposits for revised programs and provisions for trade secrets, request Circular

6L Copyright Registration for Computer Program.

If the work is in the CD-ROM format, the deposit requirement is one complete

copy of the material, that is, the CD-ROM, the operating software, and any

manuals (2) accompanying it. If registration is sought for the computer

program on the CD-ROM, the deposit should also include a printout of the

first 25 and last 25 pages of source code for the program.

In the case of works reproduced in three-dimensional copies, identifying

material such as photographs or drawings is ordinarily required. Other examples of

special deposit requirements (but by no means an exhaustive list) include many works

of the visual arts such as greeting cards, toys, fabrics, and oversized materials (request

48

Circular 40a, Deposit Requirements for Registration of Claims to Copyright in Visual

Arts Material); automated databases (request Circular 65, Copyright Registration for

Automated Databases); and contributions to collective works. For information about

deposit requirements for group registration of serials, request Circular 62, Copyright

Registration for Serials.

If you are unsure of the deposit requirement for your work, write or call the

Copyright Office and describe the work you wish to register.

Unpublished Collections

Under the following conditions, a work may be registered in unpublished form

as a “collection/with one application form and one fee

The elements of the collection are assembled in an orderly form;

The combined elements bear a single title identifying the collection as a

whole;

The copyright claimant in all the elements and in the collection as a whole is

the same; and

All the elements are by the same author, or if they are by different authors, at

least one of the authors has contributed copyrightable authorship to each

element.

An unpublished collection is not indexed under the individual titles of the

contents but under the title of the collection.

Effective Date of Registration

A copyright registration is effective on the date the Copyright Office receives

all the required elements in acceptable form, regardless of how long it then takes the

process the application and mails the certificate of registration. The time the

Copyright Office requires to process an application varies, depending on the amount

of material the Office is receiving. If you apply for copyright registration, you will not

49

receive an acknowledgement that your application has been received (the Office

receives more than 600,000 applications annually), but you can expect

A letter or a telephone call from a Copyright Office staff member if further

information is needed or

A certificate of registration indicating that the work has been registered, or if

the application cannot be accepted, a letter explaining why it has been

rejected.

Requests to have certificates available for pickup in the Public Information

Office or to have certificate sent by Federal Express or another mail service cannot be

honored.

If you want to know the date that the Copyright Office receives your material,

send it by registered of certified mail and request a return receipt.

Corrections and Amplifications of Existing Registrations

To correct an error in a copyright registration or to amplify the information

given in a registration, file with the Copyright Office a supplementary registration

Form CA together with the filing. The information in a supplementary registration

augments but does not supersede that contained in the earlier registration. Note also

that a supplementary registration is not a substitute for an original registration, for a

renewal registration, or for recording a transfer of ownership. For further information

about supplementary registration, request Circular 8, Supplementary Copyright

Registration.

Who may file an Application Form?

The following persons are legally entitled to submit an application form

The author. This is the person who actually created the work or, if the work

was made for hire, the employer or other person for whom the work was

prepared.

50

The copyright claimant. The copyright claimant is defined in Copyright

Office regulations as either the author of the work or a person or organization

that has obtained ownership of all the rights under the copyright initially

belonging to the author. This category includes a person or organization who

has obtained by contract the right to claim legal title to the copyright in an

application for copyright registration.

The owner of exclusive right(s). Under the law, any of the exclusive rights

that make up a copyright and any subdivision of them can be transferred and

owned separately, even though the transfer may be limited in time or place of

effect. The term “copyright owners” with respect to anyone of the exclusive

rights contained in a copyright refers to the owner of that particular right. Any

owner of an exclusive right may apply for registration of a claim in the work.

The duly authorized agent of such author, other copyright claimant, or

owner of exclusive right (s). Any person authorized to act on behalf of the

author, other copyright claimant, or owner of exclusive rights may apply for

registration.

There is no requirement that applications be prepared or filed by an attorney.

APPLICATION FORMS

For Original Registration

Form PA for published and unpublished works of the performing arts

(musical and dramatic works, pantomimes and

choreographic works, motion pictures and other audiovisual

works)

Form SE for serials, works issued or intended to be issued in

successive parts bearing numerical or chronological

designations and intended to be continued indefinitely

(periodicals, news papers, magazines, newsletters, annuals,

journals, etc)

51

Form SR For published and unpublished sound recordings

Form TX For published and unpublished non dramatic literary works

Form VA For published and unpublished works of the visual arts

(pictorials, graphic, and sculptural works, including

architectural works)

Form G/DN A specialized form to register a complete month’s issues of

a daily newspaper when certain conditions are met

Short Form/ SE and

Form SE/GROUP

Specialized SE forms for use when certain requirements are

met

Short Forms TX, PA

and VA

Short version of applications for original registration. For

further information about using the short forms, request

publication SL-7.

Form GATT Specialized form to register a claim in a work in which U.S.

copyright was restored under the 1994 Uruguay Round

Agreements Act (URAA). For further information, request

Circular 38b

For Renewal Registration

Form RE For claims to renew copyright in works copyrighted

under the law in effect through December 31, 1977

(1909) Copyright Act) and registered during the initial

28-year copyright term.

Form RE Accompanies Form RE for claims to renew copyright in

works copyrighted.

Addendum Under the 1909 Copyright Act but never registered

during their initial 28- year copyright term

For Corrections and Amplifications

52

Form CA for supplementary registration to correct or amplify

information given in the Copyright Office record of an

earlier registration.

For Group of Contributions to Periodicals

Form GR/CP an adjunct application to be used for registration of a

group of contributions to periodicals in addition to an

application Form TX, PA, or VA.

How to Obtain Application Forms?

See “For Further Information”

You must have Adobe-Acrobat Reader @ installed on your computer to view

and print the forms accessed on the Internet. Adobe Acrobat Reader may be

downloaded free from Adobe Systems Incorporated through links from the same

website from which the forms are available. Print forms head to head (top of page 2

is directly behind the top of page 1) on a single piece of good quality, 8V2 x 11”

white paper. To achieve the best quality copies of the application forms, use a laser

printer.

Fill-In Forms Available

Most Copyright Office forms are available on the Copyright Office website in

fill in version. Go to www.copyright.gov/forms and follow the instructions. The fill-

in forms allow you to enter information while the form is displayed on the screen by

an Adobe Acrobat Reader product. You may then print the completed form and mail

it to the Copyright Office. Fill-in forms provide a clean, sharp printout for your

records and for filing with the Copyright Office.

Certifications and Documents Section

These fees may be charged in person in the office or by phone addition

certificates; copies of documents and deposits; searching, locating and retrieving

deposits; certifications; and expedited processing.

53

Public Information Office

These fees may only be charged in person in the office, not by phone standard

registration request forms; special handling requests for all standard registration

requests; request for services provided by the Certifications and Documents Section

when the request is accompanied by a request for special handling; search requests for

which a fee estimate has been provided; additional fee for each claim using the same

deposit; full term retention fees; appeal fees; Secure Test processing fee; short fee

payments when accompanied by a Remittance Due Notice; in process retrieval fees;

and online service providers fees.

Reference and Bibliography Section

Requests for searches on a regular or expedited basis can be charged to a

credit card by phone.

Records Maintenance Unit

Computer time on COINS, printing from the Optical Disk, and photocopying

can be charged in person in the office.

Fiscal Control Section

Deposit Accounts maintained by the Fiscal Control Section may be

replenished by credit card. See Circular 5, How to Open and Maintain a Deposit

Account in the Copyright Office. NIE recordations and claims filed on Form GATT

may be paid by credit card if the cart number is included in a separate letter that

accompanies the form.

Search of Copyright Office Records

The records of the Copyright Office are open for inspection and searching by

the public. Moreover, on request and payment of a fee,* the Copyright Office will

search its records for you. For information on searching the Office records

concerning the copyright status or ownership of a work, request Circular 22-1 How to

Investigate the Copyright Status of a Work, and Circular 23, The Copyright Card

Catalog and the Online Files of the Copyright Office. Copyright Office records in

54

machine-readable form cataloged from January 1, 1978 to the present, including

registration and renewal information and recorded documents, are now available for

searching from the Copyright Office.

The Copyright Office is not permitted to give legal advice. If information or

guidance is needed on matters such as disputes over the ownership of a copyright,

suits against possible infringers, the procedure for getting a work published, or the

method of obtaining royalty payments, it may be necessary to consult an attorney.

3.5 RIGHTS OF OWNER OF COPYRIGHT

The owners of the copyright enjoy many rights in respect of the artistic,

dramatic and literary works and other subject matters of copyright. The owner of

the copyright has a right to Assignment, Right to relinquish his copyright, right to

grant licenses, Broadcast reproduction right, performers rights, special rights of

authors and right to enter names in register of copyright and other incidental rights.

Moral rights, Resale share right in original copies, Right to sue for infringement.

Right of Assignment

The owner of the copyright in an existing work or the prospective owner of

the copyright in a future work has the right to assign copyright to any person. The

copyright may be assigned either wholly or partially and either generally or subject

to limitations and either for the whole term of the copyright or any part of the term. 51

There is an absolute freedom given to the owner of the copyright to enter into a

contract of assignment. However in the case of assignment of copyright in any future

work, the assignment will take effect only when the work comes into existence.

The person who assigns the copyright is called assignor and the person to

whom it is assigned is called assignee. After assignment the assignee becomes

entitled to any right comprised in the copyright and will be treated as the owner of

the copyright, in case of assignment of future works, the "assignee" includes the

legal representatives, if the assignee dies before the work comes into existence. In

case of joint ownership, rights are owned by different persons, assignment may be

done by one person.52

51 Under Sec.18 of the Act.52 Susaiah Vs. Munaswamy, AIR 1996 Mad. 175 (1976).

55

Right of an author to relinquish copyright

The author of a work has a right to relinquish all or any of the rights in the

copyright in the work, by giving notice to the registrar of copyrights. The effect of

such notice is that from the date of notice, all his rights cease to exist. However such

relinquishment of all or any rights comprised in the copyright in a work, does not

affect any rights subsisting in favour of any person on the date of notice. In other

words, a copyright owner can relinquish only those rights which he can, on his own

without affecting the rights of other persons like assignees.53

Rights to grant licenses

The owner of the copyright in any existing work may grant his interest in the

right by license in writing signed by him. Even a prospective owner of the copyright

in any future work may also grant license in respect of such work. Provided that

license will take effect only when the work comes into existence. If the licensee of a

future work dies before the work comes into existence, his legal representatives, in

the absence of any contrary agreement will be entitled to the benefit of such

license.54

A joint owner of a copyright can grant license or interest only with the

consent of the other joint owner, if the consent was not given by one of the joint

owners the he can sue the licensee for infringement of his right.55

The copyright Act, 1957 also provides compulsory licensing in works

withheld from the public. Under section 31 of the Act, if the owner of copyright

(a) has refused to republish work or has refused to allow the performance in

public of the work, and by reason of such refusal the work is withheld from the

public.

(b) The owner of the copyright has refused to allow communication to the

public by broadcast, of such work or the work recorded in such sound recordings. On

terms which the complainant considers reasonable.

53 Sec.21 of the Act.54 Under Sec.30 of the Act.55 Na. Sahitya Prabhas Vs. Anand Kumar, AIR 1981 All 2000.

56

Copyright Board, after giving reasonable opportunity to the owner of being

heard and after holding such inquiry as it deems fit, may, if it is satisfied that the

grounds of such refusal are not reasonable, compulsory license may be granted. This

provision is invoked in the larger interest of the society. Similarly there is a

provision for granting compulsory licensing in unpublished Indian works.56

Collective Right to control administration of owner's rights by copyright society

Copyright society will control the rights of owners whose rights administers.

The owner's approval would be necessary with regard to collection and distribution

of fear and, utilization of amounts collected. Further the owners would be entitled to

regular, full and detailed information concerning all the activities of copyright

societies in relation to administration of their rights.57

Broadcast Reproduction Right

Every broadcasting organization has a special right under the act, known as

"broadcast reproduction right" in respect of its broadcasts, which subsists until 25

years from the beginning of the calendar year next, following the year in which the

broadcast is made. If any person does any of the acts below, without the license of

the owner, it would amount to infringement of broadcast reproduction right.58

a) re-broadcasting of the broadcast; or

b) causing the broadcast to be heard or seen by the public on payment of

any changes; or

c) making any sound recording or visual recording of the broadcast; or

d) making any reproduction of such sound recording or visual recording,

where the same was done without any license; or

e) selling or hiring to the public, or offering to do it, any sound recording or

visual recording.56 See Sec. 31-32 of the Act.57 Under Sec.35 of the Act.58 Under Sec.37 of the Act.

57

Performer's Rights

Where any performer appears or engages in any performance, he will be

entitled to a special right known as the 'performer's right' in relation to such

performance, which subsists for 50 years from the beginning of the calendar ear

next, following the year in which the performance is made. Similarly the performer's

right will not be deemed to be infringed if its use is made for private use, bonafide

teaching or research, or for reporting of Current events etc.,59 If the performance is

recorded and thereafter exploited without the permission of the performer than the

performer's right is infringed.60

Right to enter names in the register of copyright and other incidental rights

The author or publisher of, or the owner, or any other interested person in the

copyright was a right to make an application for entering the particular of the work

in the register of copyrights.61 It is important to note that a person has an inherent

copyright in an original composition or compilation without the requirement of

registration.62

It is because the provisions contained in sections 44 and 45 of the Act are

enabling provisions and they do not affect the common law right to see for

infringement of the copyright.63 Now it is well established that registration of

copyright is not necessary and it is not a condition precedent for maintaining a suit

for damages for infringement of copyright.64

Special Rights of Authors

Even after the assignment of the said copyright either wholly or partly, the

author of a work will have a special right a) to claim authorship of the work; b) to

restrain or claim damages in respect of any distortion, mutilation, modification done

to his work before the expiration of his copyright, if such above mentioned acts

would be prejudicial to his honour or reputation.65 The author's special rights are also

59 Sec.39 of the Act.60 Neha Bhasin Vs. Anand Raj Anand; 2006(1) Raj 607 (Del).61 Under Sec.45 of the Act.62 Satsang Vs. Kiran Chandra Mukhopadhyay, AIR 1972 Cal.53363 R. Madhuvan Vs. S.K. Nayar, AIR 1988 Ker.39.64 AIR 1972 Cal 533, AIR 1981 All 200 and Manojah Cine Productions Vs. Sundarasan AIR 1976, Mad.22.65 Under Sec.57 of the Act.

58

called moral rights or droid moral. These are parallel to an independent of the

author's economic rights.

The Berne Convention in Article 6 directs the member states to protect the

moral rights of authors. Which are (i) the paternity right i.e. the right to claim

authorship of work and (ii) the integrity rights i.e.; the right to protect the honour and

reputation.

Right to sue for infringement

Where copyright in any work has been infringed, the owners of the

copyright will be entitled to all such remedies by way of

i) Injunction

ii) Damages

iii) Accounts.66

CHAPTER – 4

INFRINGEMENT OF COPYRIGHT

Under section 51 of the Copyright Act, 1957 infringement of copyright has

been explained.

4.1 WHAT IS INFRINGEMENT?

Copyright in any work is deemed to be infringed in the following cases -

[Definition of infringement].

i. When any person without a license from th4e owner of the copyright, or the

Registrar of copyright or in contravention of the terms and conditions of a

66 Under Sec.55 of the Act.

59

license so granted or of any condition imposed by a competent authority under

the act;

a. does anything, the exclusive right to do which is conferred upon the

owner of the copyright; or

b. permits for profit, any place to be used for the communication of the

work to the public where such communication constitutes an

infringement of the copyright in the work, unless he was not aware

and had no reasonable ground for behaving that such communication

to the public would be an infringement of copyright; or

ii. When any person

a. makes for sale or hire, or sells or lets for hire, or by way of trade,

displays or offers for sale or hire; or

b. distributes either for the purpose of trade or to such an extent as to

prejudicially affect the owner of the copyright; or

c. by way of trade, exhibits in public, or

d. imports into India any infringing copy of the work.

4.2 WHAT CONSTITUTES INFRINGEMENT OF COPYRIGHT

In order to constitute infringement of copyright two elements are essential

1. There must be sufficient objective similarity between the infringing work

and the copyright work.

2. Work must be the source from which the infringing work is derived, but it

need not be the direct source.

4.3 COMMON FORMS OF INFRINGEMENT

60

Infringement of copyright in a work occurs when one or more of the

following acts take place -

i. Reproduction of the work in a material form;

ii. Publication of the work to the public

iii. Communication of the work to the public

iv. Performance of the work in public

v. Making of adaptations and translations of the work and doing any of the above

acts in relation to a substantive part of the work.

4.4 INFRINGING COPY

Section 2(m) of the Copyright Act defines infringing copy. This section

further explains that, the reproduction of a literary, dramatic, musical or artistic work

in the form of a cinematograph film will be deemed to be an "infringing copy".

i. In relation to a literary, dramatic, musical or artistic, a reproduction of 1, except

in the form of a cinematograph film;

ii. In relation to a cinematograph film, making a copy of the film on any medium by

any means;

iii. In relation to a sound recording, making any other recording embodying

iv. In relation to a program in which a broadcast reproduction right subsists under

section 37, the sound recording or a cinematographic film of such program or

performance.

If such copy, or sound recording, or reproduction as the case may be, is made

or imported in contravention if the provisions of the Act. The copyright legislation in

India follows the principle "what is worth copying is worth protecting".67 For some

products with a view to deceive the purchasers and exploit and encash their good

will in order to pass off their products as that of the plaintiffs. In such a case the

plaintiffs are entitled to the grant of injunction prayed for.68

67 Panacea Biotec Ltd. Vs. ELprags Pharma, 2002(2) Raj.160.68 Anil Gupta Vs. Kunal Das Gupta 2002(2) Raj.347.

61

The main object for giving protection is to prevent the adoption of the colour

scheme, get up lay out or other features either wholly or partly in such a manner that

may create an impression or confusion or deception in the minds of the purchasing

public as to source and origin of the products.69

4.5 PRINCIPLES FOR DECIDING INFRINGEMENT OF COPYRIGHT

The Supreme Court (Anand V Delux films AIR, 1978; SC.1613) after

considering a number of English Indian and American authorities had laid down the

following principles in determing the copyright infringement.

a. There can be no copyright in an idea, subject-matter, themes, plots or

historical or legendary facts and violation of the copyright in such cases is

confined to the form, manner and arrangement and expression of the idea by

the author of the copyright work.

b. Where the same idea is being developed in a different manner, it is manifest

that the source being common, similarities are bound to occur. In such a

case the courts should determine whether or not the similarities are on

fundamental or substantial aspects of the made of expression adopted in the

copyright work. If the defendants work is nothing but a literal imitation of

the copyright work with some variations here and there it would amount to

violation of the copyright, in other words, in order to be actionable the copy

must be a substantial and material one which at once leads to the conclusion

that the defendant is guilty of an act of piracy.

c. One of the surest and safest tests to determine whether or not there has been

a violation of copyright is to see if the reader, spectator or the viewer after

having read or seen both the works is clearly of the opinion and gets an

unmistakable impression that the subsequent work appears to be a copy of

the original.

d. Where the theme is the same but is presented and treated differently so that

the subsequent work becomes a completely new work, no question of

violation of copyright arises.69 Glaxo India Ltd Vs. Akay Pharma Put Ltd., 2002(2) Raj 275.

62

e. Where however apart from the similarities appearing in the two works

there are also material and broad dissimilarities which negative the intention

to copy the original and the co-incidences appearing in the two works are

clearly incidental no infringement of the copyright comes into existence.

f. As a violation of copyright amounts to an act of piracy it must be proved by

clear and cogent evidence after applying the various tests laid down.

g. Where, however, the question is of the violation of the copyright of stage

played by a film producer or a director the task of the plaintiff becomes

more difficult to prove piracy. It is manifest that unlike a stage play a film

has a much broader perspective, wider field and a bigger background where

the defendants ca by introducing a variety of incidents give a colour and

complexion different from the manner in which the copyrighted work had

expressed the idea. Even so, if the viewer after seeing the film gets a totality

of impression that the film is by and large a copy of the original play,

violation of the copyright may be said to be proved.

To establish infringement it must be shown that the alleged infringing work

closely resembles the original work and that use has been made directly or indirectly

of the original work.

The question of infringement may be resolved by comparing the two works as a

whole and determining whether there is not merely an identity or a similarity or

resemblance in some of the leading features or in certain of the details, but whether,

keeping in view the idea and general effect created by the original, there is such a

degree of identity or similarity as would lead one to say that the alleged infringement

is a copy or reproduction of the original. Additions, omissions and modifications do

not avoid infringement of copyright. Reproduction for the purpose of copyright

includes colourable imitation.

It is not an essential ingredient of infringement that the infringer had an

intention to infringe. But some form of copying is required, direct, indirect or even

subconscious. Subconscious copying generally occurs in music and perhaps poetry.

63

Plagiarism is not considered infringement of copyright, thus if a film producer makes

use of ideas, themes and incidents copied from other films he cannot be sued for

infringement.

4.6 IMPORTATION OF INFRINGING COPIES

Importation, of infringing copies into India is an act of infringement. But

importing two copies of the work for the private and domestic use of the importer is

allowed. If imported into India, there may be a chance of violation of copyright

therein. If the owner of a copyright in any work feels that infringing copies of his

work are being imported or likely to be imported into India he may request the

registrar of copyright for an order not to import such copies of the work should not be

imported into India. He may also authorize any person to enter any ship, dock or

premises where any such copies may be found and examine them in collaboration

with the customs authorities. If such copies are confiscated, they are to be delivered to

the owner of the copyright.

The word "import" in sections 51 and 53 of the Copyright Act means

"bringing into India from outside India". It is not limited to importation for commerce

only but also includes importation for transit across the country.70

In a notable judgment in penguin books Ltd, England Vs India Book

distributors and others the Delhi high court dealt with the validity of issuing copies of

titles of foreign books imported into India, by Indian distributors.

The court held that even though the Indian distributors are not guilty of piracy

or primary infringement, by importing the foreign books, when they issue copies of

these titles for public distribution, they would be guilty of secondary infringement. In

case of conflict between international law and municipal law, the municipal law

prevails. Software piracy in India 68, 69, 70.

4.7 WHAT IS NOT INFRINGEMENT OF COPYRIGHT?

70 Under Sec.53 of the Act.

64

A close imitation of an existing recording using alternate performs is not a copyright

infringement. In case of musical record, it is only such record which embodies sound

recording which amounts to infringement, but if another signal is created such.

Software piracy

In India, the copyright of computer software is protected under the Indian

Copyright Act of 1957. Copyright protection for software with an individual author

lasts for the duration of the author's life and continues for 60 years after the authors’

death. Government agencies such as the ministry of information Technology and the

Ministry of Human Resource Development have played an active role in aiding the

Indian law enforcement authorities in protecting software copyright holders.

Software piracy in India

According to Nascom, Software piracy involves the use, reproduction or

distribution without having received the expressed permission of the software author.

Software piracy comes in four common forms.

• The first is end user piracy, and it occurs when users of software install the

software on more machines than they are entitled to under their license

agreements.

• The second is hard disk loading, and it occurs when computer dealers install

illegal copies of software onto computers prior to their sale.

• The third is software counterfeiting, and it involves the illegal reproduction,

and subsequent sale of software in a form that nearly identical to the original

product.

• The fourth is internet piracy, and it occurs when individuals place

unauthorized copies of software on the internet for download.

Protection of software

An original software work does not have to be published in order to receive

copyright protection. As soon as the piece of software is committed to a tangible

medium, it automatically receives protection under Indian copyright law. However,

65

authors of software have the option of registering their original work with the

copyright office. Registration of software with the copyright office is not a

requirement for receiving copyright protection, but it can be helpful in an

infringement suit where proof of original authorship may be required.

Remedies

Indian Courts can take a variety of measures designed to grant relief to

copyright holders whose rights have been infringed. One of these measures is

ordering that all infringing copies - including master copies - be impounded and

destroyed Another way that courts grant relief to copyright holders is through

monetary compensation, which can consist of monetary damages, statutory damages,

courts costs and attorney fees.

Punishment

Under Indian copyright act, a software pirate can be tried under both civil and

criminal law. The minimum jail term for software copyright infringement is seven

days; and the maximum jail term is three years. Statutory fines range from a

minimum of 50,000 to a maximum of 200,000 rupees in case of version recording, it

is not an infringement. The use of the word "records embodying the record" or the

"record embodying the same record" clearly mean that it is only when the same

signal has been kept, would there be a violation.

Similarly frame or image which forms part of a film is not included in the

Term 'photograph'. Thus using a theme/image similar to the popular T.V. Serial

'Kyanki Saas Bhi Khabi Balu Thi' produced by a telecast on star T.V. by the

manufacturers of 'Tide' detergent powder for advertisement of a T.V. commercial

with the title 'Kyun Ki Balu Bhi Kabhi Saas Banegi' was held not to be an

infringement of copyright of star T.V.71

4.8 STATUTORY EXCEPTIONS

The protection of copyright given to an owner or licensee is not absolute. It

is subject to certain exceptions and restrictions. Section 52 of the Act gives a lengthy

list of acts under the heading "certain acts not to, be infringement of copyright",

71 In Star India Put Ltd. Vs. Leo Burnett India Put Ltd, 2003(2) Raj 518.

66

which can be called as statutory exceptions to copyright infringement. For the

purpose of easy understanding they have been discussed briefly as follows

1. Fair dealing Under section 52 of the copyright Act, 1957, a fair dealing with

a literary, dramatic, musical or artistic work but not being a computer

program for the following purposes, does not amount to infringement of

copyright.

- Private use, including research; and

- Criticism or review, whether of that work of any other work. The court

has determined that a substantial part of a literary, artistic, dramatic or

musical work has been taken that any question of fair dealing arises. Once

the question arises, the degree of substantiality is to say, the quantity and

value of the matter taken, is an important factor in considering whether or

not, there has been a "fair dealing". Further, in considering whether

dealing with a particular work was fair, it would have to be considered,

whether any competition was likely to exist between the two works. A fair

criticism of the ideas and evens described in the books or documents

would constitute "fair dealing" publication confidential information

leaked by third party cannot constitute fair dealing for the purpose of

criticism or review.72

For example in USA, copy right law has its 'fair use' provisions. In UK, 'fair

dealing' is allowed in relation to a copyright work. It must be noted at once that has

nothing to do with 'dealing' in a trade sense. It can be roughly equated to 'use'. Thus,

fair dealing covers research or private study, criticism, review and reporting current

events. The fair dealing provisions allow the copying or other use of the work which

would otherwise be an infringement and in many circumstances the amount of the

original work used is very relevant. It may be fair dealing to include 5 percent of

another work for the purpose of criticism or review. It is not fair dealing to

incorporate the whole of the other work. Because the proportion of work taken can be

relevant to whether the second author can successfully plead the fair dealing

72 Civil Chandran Vs. Ammim Amma 1996 PTC 670(Ker) Beloff Vs Pressdram (1973) All. E.R.24.

67

provisions, if the part taken is not substantial, then there is no infringement of

copyright and no need to rely on the permitted acts as illusory.73

2. Making of copies / adaptation of computer programs for specific

purposes The making of copies or adaptation of a computer program by

the lawful possessor of a copy of such program from such copy for the

purposes of utilizing the computer program for the agreed purpose, or for

the purpose of making back-up copies purely as a temporary protection

against loss, destruction or damage, in order to utilize the program for

agreed purpose, would not amount to infringement of copyright in such

computer program.74 Similarly the doing of any act necessary for obtaining

information essential for operating inter- operatability of an independently

created computer of an independently created computer program, with

other programs, if such information is not readily available, would not

amount to infringement.

3. Reporting of current events A fair dealing with a literary, dramatic, musical

or artistic work for the purpose of reporting current events, in newspaper,

magazine, or similar periodical, or by broadcast or in a cinematograph film or

by means of photography would not constitutes infringement.

4. Reproduction in connection with judicial proceedings The reproduction of

a literary, dramatic, musical or artistic work for the purpose of judicial

proceedings or for the purpose of a report of judicial proceedings would not

come within the purview of infringement.

5. Reproduction for legislative purposes The reproduction of a literary,

dramatic, musical or artistic work in any work prepared by the secretariat of

Legislatures, exclusively for the purpose of use of members, does not amount

to infringement.

6. Reproduction to make certified copies In accordance with any law and

their supply is not infringement.

73 David Bainbridge, Intellectual Property 5th Ed.2002 P.166.74 This provision was inserted by the copyright (Amendment) Act, 1994.

68

7. Reading / Recitation of extracts from the literary works in public.

8. Publication for use of educational institutions

9. Reproduction by teacher or pupil in the course of instruction to the students.

10. Performance in the course of activities in educational institutions of a literary,

dramatic or musical work by the staff and the students of the institution or of

a cinematograph film or a record is not infringement of copyright in such

works.

11. Making and using of sound recordings under certain circumstance and in

enclosed rooms, or clubs not run for profit do not amount to infringement.

12. Performance of literary works etc by an amateur club or society for the

benefit of paying audience or for the benefit of a religious institution is not

infringed.

13. Reproduction of an article or current economic, political, social or religious

topics in newspaper and magazines etc.,

14. Publication of a public lecture delivered in public in a magazine, newspaper

or other periodical is not a copyright violation.

15. Making a maximum of 3 copies of books including pamphlets, sheet of

music, map, chart or plan for use of a public library, museum or other

institution, for the purpose of research or private study.

16. Reproduction or publication of any matter published in official Gazette or

reports of government commission or other bodies appointed by government.

17. Reproduction of any judgment, or order of a court, tribunal or other judicial

authority, not prohibited from publication. In terms of section 522(1) (0) of

the Act reproduction of a judgment of the court is an exception to the

infringement of the copyright.75

75 Eastern Books Company Vs. Navin J. Desai, 2001(1) Raj 20%.

69

18. Production or publication of translation of Acts of legislature or Rules.

19. Making or publishing of a painting, drawing, engraving or photograph of a

work of architecture or its display.

20. Making or publishing of a painting, drawings or photograph or engravings

of sculpture or other artistic works permanently situated in a public place.

21. Inclusion in a cinematographic film of any artistic work permanently

situated in a public place.

Eg documentaries on well known statutes, painting etc.

All these acts do not constitute infringement of copyright; these exceptions

to infringements listed in section 52(1) apply also to the doing of any act in

relation to the translation of a literary, dramatic, or musical work or the adaptation

of such work as they apply in relation to the work itself.

4.9 SPECIAL PROVISIONS RELATING TO SOUND RECORDINGS AND

VIDEO-FILMS

The 1984 Amendment to the Copyright Act, inserted a new

provision in the form of Section 52-A, in relation to the sound recordings

and video films.76 This provision deals with the particulars to be included

in sound recordings and video films. The object behind making such

provision appears to be the fragile nature of the copyright in video films

and audio-cassettes.

As a result of this provision, no person should publish a sound recording in

respect of any work unless the following particulars are given.

a. The name and address of the person making the sound recording.

b. The name and address of the owner of the copyright in such work; and

76 The Copyright (Amendment) Act, 1984, Sec.4, W.e.f. 9.10.1984.

70

c. The year of its first publication;

Similarly, no person can publish validly a video film in respect of any work

unless the following particulars are displayed in the video film, when exhibited and

on the video-cassette or other container there o f , viz

a. If such work is cinema, certified for exhibition under the provisions of the

cinematograph Act, 1952, a certificate granted by the Board of film

certification.

b. The name and address of the producer of the video film and the details of the

necessary license and consent; and

c. The name and address of the owner of the copyright in such work

These particulars included in sound recordings and video films help the

prevention of video-piracy and piracy and audio-cassettes.

4.10 DETERMINATION OF QUESTION OF COPYRIGHT INFRINGEMENT

If there in no reservation to claim copyright in a work, no copyright can be

claimed on the basis of mere fact that there is some printed matter but, has no claim

of copyright, therefore for the better protection of copyright, the owner should claim

reservation of copyright by a mark (c) or the expression 'copyright reserved' or

'copyright'.77

Infringement of copyright is a question of fact and it is a matter which can be

established by evidence adduced before the trial courts. Therefore, unless there is

evidence on the aspect of infringement of the copyright of the complainant, it would

not be possible to decide whether there is infringement of copyright.78

4.11 LAY OBSERVER TEST

Generally Courts of India follow the 'Lay observer test' to determine

infringement of copyright'. According to this test, "whether or not there has been

77 Lamba Brother Pvt. Ltd. Vs. Lamba Brothers, AIR 1993 Del.347.78 Garapati Prasad Rao Vs Parnandi Saroja, AIR 1992 AP 230 at P.233.

71

violation of copyright is to see if the reader, spectator or the viewer after having read

or seen both the works should be clearly of the opinion and get an unmistakable

impression that the subsequent work appears to be a copy of the first if to the "lay

observer" it would not appear to be reproduction, there is no infringement of

copyright in the works. Earlier this view was upheld by the Kerela Hightcourt in R.

Madhavan Vs S.K. Nayar,79 which held that dissimilar novels do not involve

infringement of copyright.

The Delhi high court laid down that the infringement of copyright has to be

tested on the visual appearance of the drawing and the object in question. The

purpose of functional utility, efficacy of different parts and components of the object

or the material of which they be made are relevant for the purpose of copyright.80

Enlargement of Law books from student edition to lawyers edition does not

amount to infringement of copyright.81 Similarly play, drama or movie produced

based on the true life incidents reported in newspapers, but in a quite different

manner does not lead to the infringement of copyright.82 Publishing notes from the

syllabus prescribed by University is not infringement of copyright.83 Making of

replica of original picture84? Colourable imitation of work85 and unauthorized

broadcasting to general public" amount to infringement of copyright.

79 AIR 1988 Ker.39.80 John Richard Bardy Vs. Chemical process equipment Pvt. Ltd., AIR 1987 Del.272 at P.382. 81 Bharat Law House Vs. Wadhwa and Co. Pvt. Ltd., AIR 1988 Del.68.82 Indian Express Newspapers Pvt. Ltd. Vs. Dr. Jaymohan Mundhra, AIR 1985 Bom.229 popularly known as Kamala Case.83 Ramesh Chowdhury Vs. Ali Mohd. Nowsheri, AIR 1965 J&K 101.84 C. Cunnaih & Co. Cs. Balraj & Co. AIR 1961 Mad.111.85 Fateh Singh Mahta Vs. O.P. Singhal AIR 1990 Raj 8.

72

CHAPTER - 5

LEGAL PROTECTION OF COPYRIGHT IN INDIA AND JUDICIAL

PERSPECTIVE

Copyright protection is available for all unpublished works, regardless of the

nationality or domicile of the author, however published works are eligible for

copyright protection in the United States if anyone of the following conditions is met;

On the date of first publication, one or more of the authors is a national or

domiciliary of the United States, or is a national. Domiciliary, or sovereign

authority of a treaty party, or is a stateless person wherever that person may be

domiciled; or

A treaty party is a country or intergovernmental organization other than the

United States that is a party to an international agreement.

The work is first published in the United States or in a foreign nation that, on

the date of first publication, is a treaty party. For purposes of this condition, a

work that is published in the United States or a treaty party within 30 days

after publication in a foreign nation that is not a treaty party shall be

73

considered to be first published in the United States or such treaty party, as the

case may be; or

The work is a sound recording that was first fixed in a treaty party; or

The work is a pictorial, graphic, or sculptural work that is incorporated in a

building or other structure, or an architectural work that is embodied in a

building and the building or structure is located in the United States or a treaty

party; or

The work is first published by the United Nations or any of its specialized

agencies, or by the Organization of American States; or

The work is a foreign work that was in the public domain in the United States

prior to 1996 and its copyright was restored under the Uruguay Round

Agreement Act (URAA). Request Circular 38b, Highlights of Copyright

Amendments contained in the (URAA-GATT), for further information.

The work comes within the scope of a Presidential proclamation.

5.1 PROTECTION OF COPY RIGHT

Copyright protects “original works of authorship” that are fixed in a tangible

form of expression. The fixation need not be directly perceptible so long as it may be

communicated with the aid of a machine or device. Copyrightable works include the

following categories

1. literary works;

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works’

6. motion pictures and other audiovisual works

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7. sound recording

8. architectural works

These categories should be viewed broadly. For example, computer programs

and most “compilations” may be registered as “literary works”, maps and

architectural plans may be registered as “pictorial, graphic, and sculptural works”.

5.2 SOME WORKS ARE NOT PROTECTED BY COPYRIGHT

Several categories of material are generally not eligible for federal copyright

protection. These include among others

Works that have not been fixed in a tangible form of expression (for example,

choreographic works that have not been notated or recorded, or

improvisational speeches or performances that have not been written or

recorded)

Titles, names, short phrases, and slogans; familiar symbols or designs; mere

variations of typographic ornamentation, lettering, or coloring; mere listings of

ingredients or contents

Ideas, procedures, methods, systems, processes, concepts, principles,

discoveries, or devices, as distinguished from a description, explanation. Or

illustration

Works consisting entirely of information that is common property and

containing no original authorship (for example standard calendars, height and

weight charts, tape measures and rulers, and lists or tables taken from public

documents or other common sources).

5.3 SECURES OF COPYRIGHT

Copyright Secured Automatically upon Creation

The way in which copyright protection is secured is frequently misunderstood.

No publication or registration or other action in the Copyright Office is required to

secure copyright. There are, however, certain definite advantages to registration. See

“Copyright Registration”.

75

Copyright is secured automatically when the work is created, and a work is

“created” when it is fixed in a copy or phonorecord for the first time. “Copies” are

material objects from which a work can be read or visually perceived either directly or

with the aid of a machine or device, such as books, manuscripts, sheet music, film,

videotape, or microfilm. “Phonorecords” are material objects embodying fixations of

sounds (excluding, by statutory definition, motion picture sound tracks), such as

cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in

sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is

prepared over a period of time, the part of the work that is fixed on a particular date

constitutes the created work as of that date.

5.4 COPYRIGHT PROTECTION ENDURES

Works Originally Created on or after January1, 1978

A work that was created (fixed in tangible form for the first time) on or after

January 1, 1978, is automatically protected from the moment of its creation and is

ordinarily given a term enduring for the author’s life plus and additional 70 years after

the author’s death. In the case of “a joint work prepared by two or more authors who

did not work for hire”. The term lasts for 70 years after the last surviving author’s

death. For works made for hire, and for anonymous and pseudonymous works (unless

the author’s identity is revealed in Copyright Office records), the duration of

copyright will be 95 years from publication or 120 years from creating, whichever is

shorter.

Works Originally Created before January 1, 1978, but not published or

Registered by that date

These works have been automatically brought under the statute and are now

given federal copyright protection. The duration of copyright in these works is

generally computed in the same way as for works created on or after January 1, 1978;

the life-plus-70 or 95/120 years terms apply to them as well. The law provides that in

no case would the term of copyright for works in this category expire before

December 31, 2002, and for works published on or before December, 31, 2002, the

term of copyright will not expire before December 31, 2047.

Works Originally Created and Published or Registered before January 1, 1978

76

Under the law in effect before 1978, copyright was secured either on the date a

work was published with a copyright notice or on the date of registration if the work

was registered in unpublished form. In either case, the copyright endured for a first

term of 28 years from the date it was secured. During the last (28 th) year of the first

term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the

renewal term from 28 to 47 years for copyrights that were subsisting on January 1,

1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act

(URAA), making these works eligible for a total term of protection of 75 years.

Public Law 105, 298, enacted on October 27, 1998, further extended the renewal

terms of copyrights still subsisting on that date by an additional 20 years, providing

for a renewal term of 67 years and a total term of protection of 95 years. Public Law

102-307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for

automatic renewal of the term of copyrights secured between January 1, 1964, and

December 31, 1977. Although the renewal term is automatically provided, the

Copyright Office does not issue a renewal certificate for these works unless a renewal

application and fee are received and registered in the Copyright Office. Public Law

102-307 makes renewal registration optional. Thus, filing for renewal registration is

no longer required to extent the original 28-year copyright term to the full 95 years.

However, some benefits accrue to renewal registrations that were made during the 28 th

year. For more detailed information on renewal of copyright and the copyright term,

request Circular 15, Renewal of Copyright; Circular 15a, Duration of Copyright; and

Circular 15t, and Circular, Extension of Copyright Terms. Any or all of the copyright

owner’s exclusive rights or any subdivision of those rights may be transferred, but the

transfer of exclusive rights is not valid unless that transfer is in writing and signed.

5.5 COPYRIGHT PROTECTION FOR PERFORMANCE RIGHTS

Introduction

Copyright is a form of intellectual property protection granted under the law to

the creators of the original works of authorship. It is an exclusive right given by law

for a certain term of years to an author, composer, etc., (or his assignee) to print,

publish and sell copies of his original work. In India the first Copyright Act was

passed in 1914. It was a replica of English Copyright Act of 1911 suitably modified

to make it applicable to the then British India. The Act, presently in force was

77

legislated in the year 1957 and is known as Copyright Act, 1957 as amended by

Copyright (Amendment) Act, 1999.

The Indian Copyright Act for a very long time did not recognize the rights of

performers like musicians, singers, actors, acrobats, etc. It was only recently when the

technological changes threatened the livelihood of performers that the law intervened

to protect performers. In the year 1994, the Copyright Act was amended. The

amendment introduced the recognition of the rights of the performer. These rights are

called performers rights. Section 38 of the Copyright Act confers rights to performers

like actors, dancers, jugglers, acrobats etc. Under Section 2 (qq) of the Act,

“Performer” includes an acrobat, musician, singer, actor, juggler, snake charmer, a

person delivering lecture, or any other person who makes a performance.

“Performance” in relation to performers’ right means any visual or acoustic

presentation made by one or more performers. For example, student performing in a

school play is a performer within the meaning of Section 2 (qq) and his rights are well

within the scope of protection accorded by Section 38.

Rights of a performer under the copyright protection Act

The performer has the exclusive right to do the following under the Copyright

Protection Act

1. Right to make Sound Recording or Visual Recording of the Performance

A performer has the right to make sound recording or visual recording of his

performance under Section 1 (xx) of the Copyright Protection Act. He also has the

right to authorize the recording of a live performance, and the exclusive right to make

sound recording from which such sounds may be produced regardless of the medium

on which such recording is made or method by which the sounds are reproduced.

Copyright will subsist in a sound recording only if it is lawfully made. If the

recording includes any material which is an infringement of any literary, dramatic or

musical work, copyright will not subsist in the sound recording. Musical works and

sound recordings embodying the music are considered separate subject-matter for

copyright. The copyright in the recording of music is separate from the copyright in

the music. Copyright in the music vests in the composer and the copyright in the

music recorded vests in the producer of the sound recording. Where the song has not

78

been written down and the composer who is also the performer records the song two

copyrights come into existence simultaneously, one for the music and one for the

sound recording.

2. Right to Produce a Sound Recording or Visual Recording of the Performance;

A performer has a right to produce sound recording or visual recording of his

performance. He has the right to make copies of the recording, the right to issue

copies of the recordings to the public, the right to rent or lend copies. However, the

recording must display following particulars.

(a) A copy of the certificate granted by the Board of Film Certification.

(b) The name and address of the person who has made the video film and a

declaration that he has obtained the necessary license or consent of the

owner of the copyright in the work for making the video film, and

(c) (C) The name and address of the owner of the copyright in such work.

Failure to comply with the above is a punishable offence. This is done with

a view to check and detect piracy.

3. Right to Broadcast the Performance

Performers also have the right to prevent their live performances being

broadcast.

‘Broadcast’ means communication to the public, (i) by any means of wireless

diffusion, whether in any one or more of the forms of signs, sounds, and visual image,

(ii) or by wire, and includes a rebroadcast. In case of program broadcast, which

includes literary, dramatic or musical works or records in which independent

copyright may subsist, broadcasting organization should obtain the consent or license

of the copyright owners in the work in question. To communicate the Work to the

Public otherwise than by Broadcast. Any other means to communicate the work to the

public other than the broadcast.

Infringement of performers’ rights;

79

The Copyright Protection Act strengthens the rights of the performers by

making certain provisions. Under this if any person without the consent of the

performer, does any of the following acts, he will be deemed to have infringed

performers’ rights. These acts include

(a) Sound recording or visual recording of the performance; or

(b) Reproduction of the sound recording or visual recording of reproduction for

the purpose different from those for which performer gave his consent,

(c) Broadcasts the performance, and

(d) Communicate the performance to the public otherwise than by broadcast.

However, the above Acts are said to be infringed by a person only when these

Acts are committed during the continuance of the performers’ rights.

When a performer has consented to the incorporation of his performance in a

cinematograph film the performer losses the right to complain of infringement of that

performance which means he assigned his entire rights and that performance to the

producer of the cinematograph film.

Acts not constituting infringement of a performers rights

The following acts do not constitute infringement of a performer’s right

(a) Making of any sound recording of or visual recording for private use of

the person making such recording or society for the purpose of

bonafide teaching or research.

(b) Fair dealing of experts of a performance in reporting of current events

or for bonafide review, teaching or research or

(c) Other act with any necessary adaptations and modifications which do

not constitute infringement of copyright under Section 52. These acts

are reproduction for the use of judicial proceedings – Section 52 (1)

(c), reproduction for the use of members of legislature – Section 52 (1)

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(d), and the use in a certified copy in accordance with any law in force

– Section 52 (1) (e).

(d) Use of sound recording or visual recording of the performance in the

course of the activities of an educational institution if the audience are

limited to the students, and parents and guardians of the students and

person directly connected with the activities of the institution – Section

52 (1) (ii).

The aforesaid can be done only with the sound recording or visual recording

of the performance. Accordingly the making of a sound recording or visual recording

for the aforesaid purposes cannot also be an infringement.

Where copyright or performer’s right subsists in respect of any work or

performance that has been broadcast, a license to reproduce such broadcast will

require the consent of the owner of rights or performer, as the case may be, or both of

them.

Remedies against infringement of performers rights

The following remedies may be availed in a suit against infringement of

performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act.

(i) Civil remedies Under civil remedies, the owner of the copyright, or his

assignee or his exclusive licensee or a legatee may obtain (a) injunction or

(b) claim damages.

(ii) Criminal remedies in addition to civil remedy the Copyright Act enables

the owner of the copyright to take criminal proceedings against the

infringer. The offence of infringement of copyright is punishable with

imprisonment which may extent from a minimum period of six months to

a maximum period of three years or with a fine of the order of Rs.50,000/-

to Rs.2.00 lakhs.

(iii) Anton Pilar Order In appropriate cases the court may on an application by

the plaintiff pass an exporters order requiring the defendant to permit the

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plaintiff accompanied by solicitor or attorney to enter his premises and

take inspection of relevant documents and articles and take copies thereof

or remove them for safe custody. The necessity of such an order arises

where there is a grave danger of relevant documents and Infringing articles

are being removed or destroyed so that ends of justice will not be defeated.

5.6 INTERNATIONAL COPYRIGHT PROTECTION

There is no such thing as an “International Copyright” that will automatically

protect an author’s writings throughout the entire world. Protection against

unauthorized use in a particular country depends, basically, on the national laws of

that country. However, most countries do offer protection to foreign works under

certain conditions, and these conditions have been greatly simplified by international

copyright treaties and conventions. For further information and a list of countries

that maintain copyright relations with the United States, request Circular 38a,

International Copyright Relations of the United States.

The above said discussion reveals that copyright is a form of intellectual

property protection granted under the law to the creators of the original works of

authorship. Copyright law confers exclusive right to performers like actors,

musicians, jugglers, snake charmers, etc. to do certain acts. These rights conferred on

the performers are a positive step in encouraging their creativity.

5.7 REMEDIES AGAINST INFRINGEMENT OF COPYRIGHT

General

When an author's copyright has been infringed, he can have recourse to all

remedies which would be available to him under the general law relating to the

infringement of a right. Copyright has been placed on par with an individuals other

rights. E.g. The right to property, the right to enforce a contract, the right to restrain

a person from doing anything to his determent, the right to damages based on tort or

breach of contract etc. So, the author may bring a suit for injunction and ask the

court to stop the printing, sale circulation etc., of his work.

82

As the famous saying goes "Ubi jus, ibi remedium" which means, where there

is a right, there is remedy. No man is at liberty to take away the result of another

man's labour or his property.86

86 Macmilan and Co., Vs K&J Cooper Ldt., AIR 1924 PC 75 at P.83.

83

Nature and kinds of Remedies

Therefore violation of copyright has different remedies. The Copyright Act,

1957 provides for three types of remedies for violation of copyright, namely.

1. Civil Remedies.

2. Criminal remedies

3. Administrative remedies.

Civil remedies include injunction, damages or account of profits, delivery up

of infringing copies and damages for conversion. In case of innocent infringement

some of these remedies are not available.

Criminal remedies impose punishment to the infringer. Administrative

remedies provides for the establishment of offices and institution like the Registrar of

copyrights. Copyright Board and copyright societies etc, they also have certain

powers to give certain remedies for violation of copyright.

A part from the remedies against infringement of copyright the copyright act

provides for the protection of certain special rights. An author of copyright work can

restrain or claim damages in respect of

a. any distortion or mutilation of the work, or

b. any other action in relation to the work which would be prejudicial to his

honour or reputation.

The author can also exercise even after the assignment of the copyright. They

can be enforced by an action for breach of contract or confidence, a suit for

defamation or passing off as the case may be.

In respect of architectural works, where the construction of a building or

other structure which would infringe the copyright in some other work has been

commenced the owner of the construction of such building or structure or to order

demolition. He can also claim damages for conversion. In appropriate cases

declaratory order may be obtained as to whether what the defendant is ding or

proposes to do is an infringement of the copyright in a work.

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Jurisdiction of courts

A suit or other civil proceedings relating to infringement of copyright should

be instituted in the District court having jurisdiction. A district court within the local

limits of whose jurisdiction the person (s) instituting the suit or other proceedings,

voluntarily resides or carries on the business or personally work for gain, at the time

of the institution of the suit and other proceedings. The question of jurisdiction of

court is a mixed question of fact and law. It cannot be decided at the time of interim

injunction stage.87 The period of limitation for filing the suit is three years from the

date of infringement.

Parties to the suit for infringement

Normally the owner of the copyright is the plaintiff. An exclusive licensee can

also file a suit in which case the owner of the copyright must be made a co-plaintiff

or defendant. Where the several rights conferred by a copyright in any work are

owned by different persons, the owner of any such right, to the extent of that right,

may enforce that right by civil or criminal proceedings. The following persons can

sue for infringement of copyright.

1. the owner of the copyright or a co-owner.

2. the assignee of the copyright

3. the legatee in case of testamentary disposition of the copyright.

4. an exclusive licensee if the owner of the copyright is made a joint plaintiff or

dependant.

5. in the case of anonymous or pseudonymous work the publisher of the work

6. a non-exclusive licensee provided he joins the owner of the copyright.

We have seen that the owner of copyright in a work has the exclusive right

to do a number of acts in respect of the work. These acts are enumerated in section

14 of the Copyright Act 1957. He can print, circulate and sell copies of the work if it

87 John Rchard Bardy Vs Chemical Process Pvt. Ltd. AIR 1987 Del.272-377. See also Tate Oil Mills Co. Ltd Vs. Reward Soap Works, AIR 1983 Del.286. Everest Picture Circuit, Salem Vs. S. Karuppannan, AIR 1982 Mad.244.

85

is a book, an article, a musical composition, a play or a picture, if the work is a play,

he can arrange a public performance of it, and if the work be a cinematograph films,

he can exhibit it in public or have it screened by his employees or agents. He can

abridge, modify or translate the work into any language and publish the translation,

he can make a sound recording of it, and communicate it by radio diffusion, and so

an. He can also assign his rights wholly or in part to someone else; or grant a license

in respect of it, specifying the acts which the licensee is permitted to do.

But if anyone other than the owner of the copyright, his assignee or his

licensee does, without authority, any of these acts, he contravenes the fights of the

owner, the assignee or the licensee as the case may happen to be. He is then said to

infringe copyright in the work and the infringement renders him liable under civil as

well as criminal law. Infringement may be direct or indirect. However, in certain

special circumstances which constitute exceptions to the general law, infringement,

or the doing of an act which would ordinarily amount to infringement, is permitted

by law. These exceptions are set out in section 52 of the Act.

Direct infringement

Section 52 lays down the general rule with regard to infringement. It states

that when anyone, without a license, granted by the owner of the copyright or by the

Registrar of copyrights does any of the acts which only the owner of the copyright is

entitled to do, he infringes copyright. Also if a licensee does anything beyond the

terms of his licensee who is permitted to publish only the original work publishes a

translation of it into another language or exploits its film rights he will be infringing

the owner's copyright. It is also an infringement of copyright in a play, a musical

piece or a cinematograph film if any one allows it to be publicly performed in any

place for profit. So, the owner or tenant of an auditorium who lets out the premises

for such unauthorized performance or exhibition and makes a profit by the sale of

tickets to those who come to watch the performance, will be infringing copyright, if

however, he did not know that the performance was unauthorized and amounted to

infringement of some one's copyright and he had no reasonable grounds for

believing that to be the case, he will not be liable. The plea of ignorance will be a

good defense to a civil suit for damages or a criminal charge for such infringement.

86

Indirect infringement

The section also specifics certain acts which amount to indirect infringement

of copyright, these are to make for sale or hire, to let out for hire, to display for

purposes of trade, to offer for sale or hire infringing copies of a work, to distribute

such an extent as to cause loss or injury to the owner of the copyright; or to import

infringing copies of a work, except for the private or domestic use for the importer.

A book seller who displays or sells unauthorized copies of a book, or the owner of a

private lending library who lends such copies to his patrons for a fee, a person who

exhibits a film which is an unauthorized reproduction of a novel or play, will all be

infringing copyright in the work.

Injunction

Injunction is an order by the court directing a person to do or abstain from

doing something. The dictionary meaning is a "Judicial process by which one who is

threatening to invade or has invaded the legal or equitable rights of another, is

restrained from commencing or continuing such act or is commanded to restore

matter to the position in which they stood, previous to his action."

The remedy of injunction which may be temporary or permanent is a matter

within the discretion of the court. It will be granted when monetary compensation

will not be adequate or when irreparable harm will result to the aggrieved person

(plaintiff) if the injunction is refused.

The discretion, of course, must be exercised in a judicial manner and must be

based on well established judicial principles and not arbitrarily. The court must first

be satisfied that the plaintiff does own the copyright in the work which has been

alleged to have been copied or he is the exclusive licensee in respect of it. It must

further be shown that he has been prompt and deli gent in seeking the remedy or

injunction. A long and unreasonable delay will be a good ground for refusing the

injunction prayed for as the delay may be interpreted as acquiescence. If, however it

is shown to the court that the respondent intends to publish and circulate for sale a

large number of copies of a work in which the copyright is owned by the plaintiff or

a film which infringes the plaintiffs copyright is about to be exhibited, the court will

grant an injunction. But if the court feels that the loss which will be occasioned by

87

the publication, circulation or performance of a work will be small or if the plaintiff

can be adequately compensated by ordering the defendant to keep and submit

accounts of all money and he will receive by exploiting the work, and then paying to

the plaintiff what is legally due to him, the court will refuse to issue an injunction. A

permanent injunction will be granted only after the rights of the parties have been

adjudicated upon and finally settled by the court. A temporary injunction is granted,

during the pendency of suit to guard against avoidable loss to the plaintiff while the

suit drags out its long course. A plaintiff suing for damages, may at the same time,

ask the court for the issue of a temporary injunction. Such injunction will be granted

in appropriate cases.

The broad principle which the courts follow is the balance of convenience,

will the refusal of the injunction cause irreparable loss to the plaintiff or and the

other hand, will the injunction cause more loss to the defendant than gain to the

plaintiff.

The making an application for a temporary or interlocutory injunction, the

plaintiff must state that he is the owner of the copyright or the exclusive licenses in

respect of the work in question, that his right has been infringed and that he will

suffer irreparable loss if the continuance of the infringement is not stopped by means

of a temporary injunction.

It is not surprising that in the matter of injunction, as in all discretionary

matters, a completely just and objective decision is not always achieved. The

aggrieved party has, however, a right of appeal to a superior court, against the order

granting or refusing to grant an injunction.

In support of his application, the plaintiff can argue that the issue of a

temporary injunction does not prejudge the issues involved in the case and it is not

necessary for him to show that he must ultimately succeed in establishing his claim.

All he is asking for the maintenance of the status quo, upon a prime facie showing

that his right has been infringed and the infringement will continue unless stopped. If

the court is disinclined to rant the injunction, the plaintiff should press for an order

directing the defendant to keep accounts of sale of infringing copies and of money

88

received by him and further give an undertaking that he will compensate the plaintiff

for the loss he will suffer by his acts of infringement, provided the plaintiff

ultimately succeeds in obtaining a decree in his favour.

Damages

A suit for damages for the infringement of copyright is ordinarily based on

the law of tort, though there may be instances in which the author- publisher contract

specifies the quantum of damages to be paid in case of breach of any of the terms of

the agreement. But this will be a rare occurrence.

Rendition of Accounts

In a suit for accounts; the plaintiff asks the court to order the defendant to

render accounts of all money received by him, expenses incurred and profits made

by the infringement of the plaintiff's copyright. A suit for accounts is a remedy

distinct from a suit for damages.

Author's Special Rights

This right can be enforced by the author's legal representatives also. If the

plaintiff feels that the act of the defendant is prejudicial to his honour or reputation.

It is obvious that damage to the reputation of an author is something apart from the

infringement of his copyright, the author may sold his copyright or assigned it

wholly or partially but the public will continue to associate him with the work and if

in printing or publishing it anyone mutilates it or alters it in such a way as to cast a

reflection on the authors reputation as a writer or on his honour and integrity, he

retains the right to vindicate himself.

Recovery of infringing Copies

One more remedy available to the owner of a copyright, in case of

infringement; He can bring a suit to recover all infringing copies of the work and all

plates used or intended to be used for the production of the infringing copies and he

may recover damages from the person who has used the infringing of plates.

Declaratory Suit

89

Section 60 of the Act provides that when anyone wrong fully claiming to be

the owner of the copyright in a work threatens to take legal proceedings regarding

infringement of copyright against another on the ground that other has infringed the

copyright, the person so threatened may bring a declaratory suit. This means a suit in

which he asks the court to declare that the alleged infringement is not in fact

infringement at all, and that he has a perfect right to do what he is doing. In this suit

he may also ask the court to issue an injunction to the false claimant that he cease

uttering such threats and in addition pay damages.

Criminal Proceedings

Chapter XIII, in sections 63 to 70 deals with the offences in relation to

violation of copyright. Criminal courts have been empowered to entertain and

dispose of certain types of breaches of copyright and punish the wrong doer.

Punishment for infringement imposed to the wrong door is minimum 6 months of

imprisonment and maximum 3 years. Fine can also be imposed not less than

Rs.50,000/- and upto Rs.2 lakhs.

The nature of offence and punishment prescribed can be understood by the table

below

S. No. Nature of Offence Provision

of the Act

Punishment Criminal Court

having jurisdiction

90

to try the offence

1. Knowingly infringing or

abetting the infringement

of the copyright in a work,

or any other work

conferred by this Act

(except in case of resale

share right in original

copier-under section 53A)

Sec. 63 Minimum- 6

months

imprisonment

Maximurn-3 years

imprisonment +

fine not less than

Rs.50,000/- upto

Rs.2 lakhs

Not inferior to the

metropolitan

magistrate or a

judicial magistrate of

first class

2. For second and subsequent

conviction

Sec.63-A Imprisonment

Minimum - f year

Maximum - 3 years

Fine

Minimum- Rs.llakh

Maximum-Rs.2

lakhs

Not inferior to the

metropolitan

magistrate or a

judicial magistrate of

first class

3. Knowingly using of

infringing copies of

computer programme

Sec.63-B Imprisonment

Minimum - 7 years

Maximum - 3 years

Fine

Minimum-

Rs.50,000

Maximum-Rs.2

lakhs

Not inferior to the

metropolitan

magistrate or a

judicial magistrate of

first class

4. Making false entries in

register of copyrights etc,

for producing or tendering

false entries

Sec.64 Imprisonment upto

1 year, or fine or

both

Not inferior to the

metropolitan

magistrate or a

judicial magistrate of

91

first class

5. Making false statements

for deceiving or

influencing any authority/

officer

Sec.68 Imprisonment upto

1 year, or fine or

both

Not inferior to the

metropolitan

magistrate or a

judicial magistrate of

first class

6. Publishign a sound

recording or a video film in

violation of sec,

52A(video& audio piracy)

Sec. 68-A Imprisonment

upto 3 years and

fine

7. Possession of plates/ other

material used for making

infringing copies

Sec.65 Imprisonment

upto 2 years and

fine

Offences by Companies

Where a company i.e. a body corporate and including a firm or other

association of persons, commits an offences under the copyright act, every person

responsible to such company etc. for the conduct of the business of the company, at

the time of commission of offence, will be liable for prosecution and punishment.88

The individuals who may become liable are directors of companies, managers,

secretaries and others.

Incidental powers of the Courts and Police

While acting on a complaint against any alleged infringement of copyright, the

police investigating, acting under the direction of the competent court have the

following powers

88 Under Sec.69 of the Act.

92

i) to seize the infringing copies and other material.89

ii) to order restoration of such copies/ material to the interested persons90 and

iv) to order disposal of infringing copies or plates used therefore.91

Offences by Companies etc

Where a company i.e. a body corporate and including a firm or other

association of persons, commits an offence under the Copyright Act, every person

responsible to such company etc. for the conduct of the business of the company, at

the time of commission of offence, will be liable for prosecution and punishment.92

The individuals who may become liable are directors of companies, managers,

secretaries and others.

Administrative Remedies

Other remedy that is available is administrative remedy with other civil and

criminal remedies.

It is known that copyright act provides for the establishment of offices and

institutions like the registrar of copyright, copyright board and copyright societies etc,

they also have certain powers to give certain remedies for the violation of copyright.93

5.8 JUDICIAL PERSPECTIVE

The intellectual property law has been given official recognition by the

international community with the establishment of WIPO, a specialized agency of the

United Nations.

In general the owner may use his property as he wishes and that no body else

can lawfully use his property without his authorization. If any person interferes his

right to enjoyment then the person can move to court of law for relief. The courts

make a study of the case and interpret the provisions and give decisions in according

with law.

89 Under Sec.6490 Under Sec.6491 Under Sec.6692 Under Sec.69 of the Act.93 See the discussion on “Institutions under the Act” in the Proceedings pages.

93

Courts gave different decisions in different cases according to the merits of the

cases; judiciary is protecting the interest of owner of the copyright.

Judiciary always protects individual rights of people and it in turn protects the

society. Judiciary follows the principles of natural justice.

As the law is not static it has to be changed according to the changes in the

society in order to suit the changing needs of society. Judiciary takes into

consideration of the changes into society and makes rules and decide the cases

accordingly.

Judiciary maintains the balance between society and individuals. Courts

always give importance to the individual interests and protect the individual’s rights.

Courts protects the individual rights of the persons in case of violation of his

rights he can seek the help of courts to protect his rights and court some time awards

damages to the infringer and some times it imposes punishment also.

SOME CASE LAWS DECIDED BY SUPREME COURT AND HIGH COURTS

Gramophone Company of India Ltd.

Vs.

Birendra Bahadur Pandey & others 1984 AIR 667 SC

In this case the Supreme Court held that copies made out of India of a work

which if made in India would infringe copyright shall not be imported.

Narration of Brief facts of the Case

The copies of records and cassettes were dispatched from Singapore to Nepal

and to Calcutta port. The appellant company suspected that those cassettes are

unauthorized reproductions of its records and cassettes, the import of which into India

was prohibited. The appellant company moved the registrar of copyrights for action

94

under section 53 of copyright act, 1957, who enables the registrar after making such

enquiries as he deemed fit, to order that copies made out of India of a work which if

made in India would infringe copyright, shall not be imported.

Pleadings of the Respondents

The respondents counsel argued that the records were brought into the country

not for commerce, but for onward submission to another country, they can, in law be

no important, it was said that the object of the copyright act was to precious

authorized reproduction of the work or the unauthorized explosion of the reproduction

of a work in India, and the object would not be frustrated if infringing copies of a

work were allowed transit across the country. If the goods are brought in only to go

out, there is no import; it is difficult to agree with this submission thought it did find

favour with the section 53. We have already mentioned the imported attached by the

international opinion as manifested as manifested by the various international

conventions and treaties, to the protection of copyright. In interpreting the word

import in the copyright act, we must take note that while positive requirement of the

copyright conventions is to protect copyright, negatively also. If this much is borne in

mind, if becomes bear that the word import in Sec.53 of the copyright act cannot bear

the narrow interpretation sought to be placed upon it to limit it to import for

commerce. It is be interpreted in a sense which will fit the copyright act into the

setting of international conventions.

Judgment

In this case the court stood on the side of the petitioners and held that a close

intimation of an existing recording using alternate performance is not a copyright

infringement. The court clearly differentiated whether there was importation of copies

or not and in case of musical record, it is only such record which embodies sound

recording which amounts to infringement, but if another signal is created such as in

the case of version recording, it is not an infringement. Thus the use of the word

"records embodying the record" or the "record embodying the same record" clearly

means that it is only when the same signal has been kept, would there be a violation.

A. Susiah V. S. Muniswamy AIR 1966 Mad 175

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The court held that assignment of any work, to be valid, should be in writing

signed by the assignor or his authorized agent. Also that in case of infringement of

copyright in respect of literary work of two joint authors, one of them who are

aggrieved can maintain criminal action for the offence.

Lamba Brothers Pvt. Ltd V. Lamba Brothers AIR 1993 Del 347

Plaintiff and defendants were carrying on business together at one time using

trade mark ELBEE for the machinery manufactured by them. There was dissolution

of partnership on 1-4-1985. That the two brothers carried on independent business.

Infringement suit was based on a catalogue, which actually was only a

coloured brochure having descriptive words, tables and photographs. There was no

reservation claim of copyright in the brochure in any recognized method, i.e., by mark

(C) or expression “Copyright Reserved” or “copyright Lamba Brothers Pvt. Ltd.”

The Court observed that there must be compliance with the requirements of

the Statute and claim to copyright made upon the copyright table material before any

action in copyright can be sustained and perfected by statutory remedies.

The suit was dismissed.

Ratna Sagar (P) Ltd., V. Trisea Publications 1996 PTC (16) 597

The plaintiff was a publisher of educational books for children and claimed

registered copyright in its book LIVING SCIENCE volumes 3, 4, 5 which were first

published in 1986. The defendant No.1 was publisher of the UNIQUE SCIENCE.

The plaintiff claimed that defendants’ publications were copied from its book and

amounted to infringement of its copyright. The defendants contended that the

plaintiff had not shown any proof of ownership, they also pleaded that the books dealt

with general aspects of science which fall within the domain of public knowledge,

hence there was nothing original in the books so that a copyright could subsist.

The Court was of the view that a comparison of the two works clearly

indicated that the defendants had copied the work of the plaintiff. On the facts of the

case, the Court held that the defendants were guilty of infringing the copyright of the

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plaintiff in the books. The balance of convenience was also in favour of the plaintiff.

Permanent injunction was granted in this case.

Gramophone Co. of India Ltd.

Vs.

Mars Recording Pvt. Ltd. AIR 2001 SC 2885

In this case the Supreme Court held that a close intimation of an existing

recording using alternate performers is not a copyright infringement.

The brief facts of the case

The plaintiff during the course of their business were willing of sound

recording into audio cassettes of three titles viz, 'kallusakka are kolliro', 'madhuve

madhuve' and chinnada hadugalu. The copyrights of the songs containing in three

sound recording cassettes vest with the defendant is but the respondent has paid in

prescribed manner to the owner of copyright as royalties of Rs.1,500/- and waited for

their assent, but the petitioner did not give any information, so he waited for 15 days

and then the person producing the cassette after the expiry of 15 days is not said to

have infringed copyright.

Pleadings of Appellant

The leading senior advocate appearing for the appellant submitted that this

case gives rise to decision on an important aspect of entertaining a suit under section

41 of the specific relief act in addition to copyright; he took us through the entire

copyright act explaining the scope thereof.

Pleadings of Respondent

The contended that the question of law involved in the present case is whether

an entity which seeks to make version recording or cover versions of an earlier sound

recording requires the consent of the owner of the copyright, the answer to this he

submitted, would turn on an interpretation of sections 2(m) (iii) and 52(i)(j) of the act.

Version recordings are fresh recordings made using a new set of musicians. The

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counsel established a clear distinction between voluntary license and non-voluntary

licenses. While section 30 of the act refers to voluntary licenses in which case the

consent of the party is concerned. As opposed to this, there are two types non-

voluntary licenses, compulsory licenses dealt under section 31 and 31 A of the act and

statutory licenses such as dealt with in section 51(1) (j) of the act. The ingredients

satisfied to attract the section 52 (l)(j).

Judgment

The Supreme Court held that the act of the defendant is not at all an

infringement and petitioners cannot claim damages for infringement.

In Vicco Laboratories

Vs.

Art Commercial Advertising Pvt. Ltd. & Others AIR 2001 SC 2753

The narration of brief facts are the petitioners were carrying business as

manufacturers of ayurvedic pharmaceuticals products which were sold under brand

name 'Vicco' and have acquired substantial reputation. The defendants were agent

appointed by the plaintiff to produce the serial for plaintiff to promote his products,

but the defendants produced another serial on the same name hence the plaintiff due

for damages.

Pleadings of plaintiff

The plaintiff has employed the said respondents as advertising agent in respect

of the products manufactured by the petitioners for number of yen I'M. The

petitioners were the sponsors for the serial "HUMLOG" and also made an agreement

with Doordharsan for advertising their products through the agency of respondents,

and petitioners agreed to pay the entire cost for the said productions.

The respondents produced the serial entitled "yeh jo hai zindagi" in the

expenses of petitioners, and it gained much popularity in public and became exclusive

and popular serial. The petitioners claimed that the exclusive right to use the title

therefore belonged to them and the 2nd part was produced and telecasted without the

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name and sponsorship of petitioners. And petitioners vest all T.V. and video rights of

the sponsored program in Hindi "Yeh jo hai zindagi" and vest with them.

Respondents Pleadings

Respondents contested that petitioners were not the owners of the copyright in

the said serial within the meaning of section 17 of the Copyright Act 1957 and

copyright in respect of the said serial belongs and vest with the Copyright Act 1957

and they contended that it was all along agreed between the petitioners and

respondents that the copyright in the said serial would rest exclusively in the

respondents and not in the petitioners. Thus respondents name was shown in the title

of the said serial as the producer thereof right from the beginning of the said serial but

the petitioners did not protest against the same.

Respondents claim that the petitioners have received 50% of the royalty from

distributing servicing Pvt. Ltd. The advertisements issued by the petitioners

themselves in various news papers to give wide publicity to the said serial would

indicate that the serial mentioned those respondents are the owners of the copyright in

respect of said serial and the petitioners claim in that behalf in devoid of any

substance.

Judgment

In the present case the Supreme Court held that the petitioners were not able to

establish that respondents were the agents of petitioners. In the course of their

employment, valuable consideration paid by the petitioners to them, when these facts

had not been proved and established hence the petitioner cannot claim copyright and

it did not attract section 17 of the Copyright Act.

Exphar SA V. Eupharma Laboratories Ltd. 2004 (3) SCC 688

The Appellant of No.2 carried on business within the jurisdiction of the Delhi

High Court. Appellant No.2 was certainly “a person instituting the suit”. The

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Division Bench went beyond the express words of the statute and negatives the

jurisdiction of the court because it found that Appellant No.2 had not claimed

ownership of the Copyright of the trademark, infringement of which was claimed in

the suit. Appellant No.2 may not be entitled to the relief claimed in the suit but that

was no reason for holding that it was not a person who had instituted the suit within

the meaning of section 62(2) of the Act.

The appellant’s plaint said that the “cease-and-desist” notice was sent to

Appellant No.2 at its office in New Delhi8 and in that notice it was alleged that

Appellant No.2 had infringed the copyright of Respo9ndent No.2 to the trademark

Maloxine.

It was held that the jurisdiction under the Copyright Act is wider than that of a

court as prescribed under CPC.

Diljeet Titus, Advocate V. Alfred A. Adebare (2006)32 PTC 609

There were two counter-suits filed by the two of parties aggrieved by the

conduct of each other. In a nut6shel their controversy was revolving around the

nature of relationship with which the parties got together to carry on their nature of

relationship with which the parties got together to carry on their profession as

advocates. The plaintiff claimed that the defendants were only working for him and

were paid remuneration in the form of fee while he remained in control of the

professional business of the organization. On the other hand the defendants in the

said suit claim to have worked more in the nature of the partnership with Mr. Diljeet

Titus.

From the circumstances of the case it was held that there was allegation of

misuse of data by the defendant. The ownership over the copyright material created

by defendants while in the employment of plaintiff was claimed. It was held that the

prima facie it was the plaintiff who was the owner of such copyright material. The

interim injunction was granted.

Microfibres Inc. V. Girdhar & Co. 2006 (32) PTC (Del)

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The suit alleged the violation of copyright in artistic work applied to

upholstery fabrics. The defendant allegedly copied the designs and artistic work of

the plaintiff and was passing off as his own work. The work of plaintiff had been

registered in copyright office at USA. It was held that the industrial commercial use

of design is not covered by the provisions of the Act but is governed by the Designs

Act, 2000. As the plaintiff failed to have the design registered under the said Act, the

plaintiff was not entitled to any relief.

Neha Bhasin V. Anand Raj Anand 2006 (32) PTC 779

The suit was filed by plaintiff alleging that she had sung different songs in the

film/album of defendant but one of the defendants showed herself as the singer in

publicity material in spite of the fact that it was the voice of the plaintiff over the

defendant were mixed with the voice of the plaintiff. The original CD though claimed

to be withdrawn from the market was still in circulation and the songs sung by the

plaintiff was being credited to the defendants. It was held that the plaintiff was

entitled to interim injunction. The direction was given to the defendants in regard to

the manner and sale, if they chose to sell the songs after deleting the voice of plaintiff.

Syndicate of Press of University of Cambridge V. Kasturi Lal 2006(32) PTC

The plaintiff No.1 which traded in the name of Cambridge University Press

filed a suit. The plaintiff No.1 and the plaintiff No.2 (its Associate in India) had

published the low price edition of the book in question. The plaintiff No.1 averred

that it was a reputed publisher with an international standing and held all rights in

respect of publication. The interim injunction was confirmed and it was held that the

printing and publishing of a guide and reproduction of essentially required matter

from prescribed book is not infringement.

Dabur India Ltd

Vs.

101

K.R. Industries Manu/SC 2244/2008. AIR 2008 SC 3123

In this case the court held that defendants had infringed the copyright of

plaintiff and an order of permanent injunction was passed.

The narration of brief facts

Appellant is a manufacturer of a product known as 'Dabur Red Tooth Powder'

or Dabut lal Dant Manjan in the year 1993, it had allegedly adopted a unique colour

combination and arrangement of features which was subsequently changed

respondent claims that the said manufacturer of a tooth powder known as 'Sujatha'. It

is said to have infringed the copyright of the appellant. A suit was filed by the

appellant against the respondent.

Pleadings of the Plaintiff

Plaintiff adapted a new certain while retaining the conical shape and white

cap for their product which is described as follows. On one column has the word RED

tooth powder within a year blurb, immediately below the blurb is a oval shaped

picture of a family with a yellow background. The column immediately next to it

contains the same features in the devnagari script. The third column sets out the

details including composition weight, mrp, and manufacturers name etc.

The top half of the third column contains an oval shaped device containing a

diagrammatic representation of the herbs that constitute the ingredients of plaintiff's

product. It was alleged that the said carton constituted an artistic work within the

meaning of section 25-C of the Copyright Act 1957. The respondent is said to have

been using an identical colour scheme layout, arrangement of features and get up as

that the plaintiff's the essential one column has the words Red Tooth Powder within a

yellow blurb. A column which contains the representation of a family in an oval shape

picture.

The details of the product are set out in another column. A relief claimed by

the plaintiff is

a) An order of permanent injunction restraining the defendant, their partners,

proprietors and promoters as the case may be their servants and agents,

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representatives dealers and all others acting for and on their behalf from

reproducing any of the artistic features of the plaintiff's Dabur Red Tooth

Powder container packaging/pouch, including its colour sand combination, get

up layout or arrangement of features, printing, publishing, using or otherwise

reproducing any of the artistic features thereof in any material from amounting

to an infringement of copyright.

b) An order of permanent injunction restraining the dependents, their partners,

proprietors and promoters as the case may be their servants and agents,

representatives, dealers and all others acting for and on their behalf from

manufacturing, selling, offering for sale or otherwise directly or indirectly

dealing in tooth powder packed in the impugned packaging of any other

packaging as may be a slavish limitation and a substantial reproduction of the

Dabur Red Tooth Powder container from committing any other acts as is

likely to be cause confusion and deception amounting to passing off.

Judgment

In this case, the Delhi high court could not have invoked its jurisdiction

interms of 1957 act. The primary ground that the plaintiff was not a resident of Delhi.

It has not been able to establish that it carries on any business sat Delhi for our

purpose the question as to whether the defendant had been selling its procedure in

Delhi or other is irrelevant. It is possible that the goods manufactured by the plaintiff

are available in the market of Delhi or they are sold in Delhi but that it would not

mean that the plaintiff carries on any business in Delhi. The court finally held that

plaintiff may seek a remedy which can otherwise granted by the court.

M/s Entertainment Network Ltd.

Vs.

M/s Super Cassette Ltd. AIR 1445 SC 2008

In the above case the court awarded the costs to the defendants.

103

Brief facts of the case

The first respondent is one of the leading music companies engaged in the

production and acquisition of rights in sound recordings. It has copyright over a series

of cassettes and CD's commonly known as T-series. It has copyrights in

cinematograph films and sound recordings. The appellant entertainment network

broadcasts under the brand name 'Radio Mirchi". It is a leading FM radio broadcaster

disputes and differences arose between Bennett Coleman & Co. Ltd., the holding

company of the first respondent and phonographic performance Ltd. As regards the

playing of the songs of which copyright belongs to the respondent in their FM radio

network. Appellant is a company which holds license for running FM radio stations

all over India.

Pleadings of Petitioner

Super cassettes through it lawyer by a notice dated 21.1.2002 in views of the

said infringement of his copyright called upon ENIL; to give an undertaking that it

shall not broadcast the sound records of Super Cassettes through its radio station

without a valid license and payment of royalty super cassettes again by immediately

desist from broadcasting sound recordings of Super Cassettes clients through its radio

station.

Super cassettes clients had given an undertaking that if shall not broadcast the

sound recordings of super cassettes clients through its radio station without a valid

license and payment of royalty pay a sum of Rs.50,00,000-00 (fifty lakhs only) as

liquidated damages for illegal broadcast and acts of infringements committed by it, to

super cassettes with in 15 days of receipt hereof under intimation to super cassettes

failing with super cassettes have positive instruction of its clients to initiate such legal

action both civil and criminal against the directors who are responsible for the said

infringement, with out any further notice and in that case you shall be further liable

for all cost and consequences there off.

The contention is that the music is for general benefit of society at large.

Judgment

104

In this case the court held that "use of an injunction by PPL to obtain money to

obtain money to which they are not entitled would be an abuse, but there is no

evidence of that where unauthorized use of PPL's copyright is taking place. We do not

refuse to license that copyright without an appropriate payment for past use

agreement.

Nor do we consider it an abuse for PPL to require compliance with an

injunction either by the person refraining from using the repertoire or by payment for

such use that has taken place and will take place. Apart from the fact that we are not

dealing with a case where an order of injunction is required to be issued; as indicated

herein before the board was as to whether there was an abuse in the sense that

unreasonable amount was being claimed by way of royalty.

As it was a case of abuse, the board has the jurisdiction to entertain any

application for grant of compulsory license. How far and to what extent appellant was

infringed the right of the respondent is a matter which may be taken into consideration

by the board. A suit was filed as negotiations with the respondents in the suit as soon

as it came to know that super cassettes is not a member of PPL it gave an undertaking,

each case must be considered on its own facts. However we do not approve the

manner in which the board has dealt with the matter be considered as a fresh on merit.

The party shall pay costs.

Babbar Wreckers Private ltd.

Vs.

Ashok Leyland Ltd. & Others AIR 2011 PTC 164

In this case the court gave an order in favour of the plaintiff and ordered for

payment of damages to plaintiff.

Brief facts of the case

The Babbar Wrechers claims to be engaged in manufacturing and designing

wreckers (known as LRVs) for more than 40 years and to having supplied them to

various government departments. The equipments are reliable and easy to operate and

are mounted on suitable commercial vehicles. Babbar Wrechers claims to have earned

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substantial reputation and goodwill for the performance of its Wrecker equipment and

also claims to have spent considerable money in designing and development them

having regard to their functionality. The plaintiff claims that the drawings of his

copyright are artistic works.

Pleadings of Plaintiff

Babbar wreckers complains that there was an agreement took place when

Ashok Leyland was placed with order of supply of 286 LRV the contract for

fabrication and supply of all the wrecker assemblies was placed perfect. It is stated

that this was breach of agreement as Babbar Wrechers had put in tremendous labour

and effort in securing its drawings approved and was entitled to at least half of the

order but was content to maintain cordial relations by executing the orders for

wrecher assemblies only in respect of SOLRVS. It is submitted that if the past

precedent and practice were to be taken into account, Babbar Wreckers was entitled to

manufacture at least 50% of the total orders placed upon Ashok Leyland, the letter

kept on evading and giving vague assurances. Ultimately, a legal notice dated

7.4.2009 was issued to the first three defendants, terminating the license to use the

drawings and specifications. The plaintiff's engineering drawings, specifications and

technical know-how the Babbar wreckers allowed it to use the drawings as a gesture

of good will, but at the same time cannot be construed as various contracts between

them 2000-2005 where such work orders were procured by Ashok Leyland for supply

of the entire LRV; the fabrication and supply of 1121 vehicles was given by the

central government in five lots. Ashok Leyland procured the orders for supply of the

vehicles with the wrecker assemblies invariably was given a proportionately lower

quantity.

The plaintiff argues that the pleadings and documents on record prove beyond

doubt, that it is the copyright owner of the drawings conforming to the specifications

of 2001 and 2005. Used by the Ashok Leyland and perfect for assembling the wrecker

units. It is submitted the authority and right to exclusively reproduce the drawings in

material, three dimensional forms, vests in the plaintiff, which both Ashok Leyland

and perfect have infringed.

Judgment

106

The court held that the plaintiff has been unable to establish prima facie to its

being a copyright owner. At the same time the court is conscious that it has been

beneficiary in previous contracts and that 3-7% royalty was being paid to it. Ashok

Leyland is directed to furnish an undertaking to pay damages in the event of plaintiff

success. Ashok Leyland is also directed to furnish a bank guarantee for the sum of

Rs.3,00,000/- in favour of the registrar of this court to satisfy any money decree,

within four weeks from date.

N. Ranga Rao & Sons

Vs.

Koya's Perfumery works 2011 PTC 140 madras

In this case the court directed the respondents to render the true profits for

passing off action and for costs of the suit.

Brief facts of the case

The plaintiff was the manufacturing company of artistic work "WOODS" and

the respondent was using the same trademark which is offending trademark

"HEAVEN WOOD" or any other mark which is identical and similar to the registered

trade mark "WOODS". The appellant prayed for permanent injunction restraining the

respondent herein from in any manner a infringing the plaintiff's copyrighted artistic

work "WOODS", which is identical and similar to the registered trademark,

permanent injunction restraining the respondent herein from in any manner passing of

its agarbathi products bearing the offending trademarks and the plaintiff asked action

for passing off committed by the respondent and costs of the suit and permanent

injunction restraining the respondent from using the similar copyrighted work

"HEAVEN WOOD".

Pleadings of plaintiff/applicant/appellant

It is argued on behalf of the plaintiff. Plaintiff is the leading manufacturers of

the agarpathies and their names are very well established in the public. The plaintiff

had only conceived and adopted the "WOODS" in respect of agarpathies and applied

for registration of the same on 24,1.1985 and subsequently obtained registration of

trademark "WOODS" in respect of agarpathies and dhoop (incense sticks) under the

107

trademarks act, 1958 and it is periodically renewed. The petitioner also designed the

agarpathi cartoon bearing trademark "WOODS" in an artistic manner with a peculiar

colour scheme and getup during the year 1996 and also registered the same under the

Copyright Act, 1958.

It further contended that appellant had spent considerable amount and efforts

in promoting the sale and due to the quality of their products they had done business

to the tune of several crores of rupees since its inception under the trademark and the

artistic work "WOODS".

The appellant became aware during the end of 2009 that the respondent has

started the manufacture and selling agarbathies under the identical carbon bearing the

offending artistic work of WOOD and it amounts to malafide act. Therefore the said

plaintiff prayed for interim injunction restraining the respondent herein from doing

the same and action for passing off action.

Judgment

The court held that the subject matter in this case that the respondent changed

the size of the font and brought alteration in compliance of the order. This court has

also compared the carton of the agarpathies manufactured by the appellant and the

respondent and found that the carton of the respondent contains entirely different

colour-scheme; font and the words appearing on the font are also of different context

and conveys different meaning and it cannot create any confusion with regard to the

product for any purchaser. The court dismissed the suit and no order for costs because

there is no infringement of the copyrighted work.

Castrol Limited

Vs.

Union of India & Another 2011 PTC 280.

In the above case the court held that artistic works in respect of castrol logo

have been abandoned, without being heard and held that the act of DROC (Deputy

Registrar of Copyrights) has set aside.

108

The narration of brief facts

In the case the petitioner has filed an application for his two artistic works in

respect of Castrol logo under copyright act 1957. The petitioner was doing the

business of manufacturing processing and marketing high grade lubricating oil

products in the United Kingdom and other countries. The afore mention applications

were filed by it on 2nd August 2004 in accordance with the requirements of section

45 CA. But the DROC impunged the application.

Pleadings of petitioner

The counsel for the petitioner stated that all the documents were submitted i.e.

NOC in original as well as duly stamped, to the DROC for registration of logo castrol

for his artistic in respect of which two applications were submitted in original and sent

to Registrar of Copyright (ROC). After a few months a letter was received by the

counsel from the DROC asking the petitioners to furnish the documents of NOC in

original authors has no objection in registering the copyright in the name of the

applicant and POA has not been submitted on stamp paper and please submit them

duly signed by the applicant.

The petitioners has sent a letter submitting documents of NOC in original as

well as duly stamped POA, but it is stated that petitioner again received a letter from

DROC reiterating discrepancies. The petitioner requested for time and again filed the

said documents. By the letter dated 17th August 2009, but petitioner sought further

extension of time till 18lh September 2009 for submitting the documents. However,

the impugned order was passed.

Judgment

By observing the petitioner arguments and relevant cases cited by the

petitioners, the court held that the petitioners can file a petition on the ground that the

impugned order of DROC is appealable before the copyright board under section 72

(1)CA.

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The above submissions have been considered, the impugned order has

obviously been passed without affording the petitioner an opportunity of being heard.

From the narration of facts in the petition it appears that the petitioner the DROC

ought to have given the petitioner an opportunity of being heard before deciding to

simply close the application as "recorded". And the decision of the DROC on the two

application again submitted by petitions will be communicated to him with in 4 week.

If the petitioner is still aggrieved by the decision then the petitioner can seek

appropriate remedies in accordance with law.

In a case decided in 2011 regarding SAP Akfingesell schaft & another

Vs.

Sadia Pasha Proprietor,M/s Neologik India.

Software piracy, the SC awarded damages for the violation of rights of

plaintiff. The brief facts are the plaintiff company is incorporated in Germany, and it

is doing business in India, and sales of SAP solutions, implementation post-

implementation support, training and certification of its customers and partners in

India. Plaintiff claims to be global leader in developing application software products

for real time business developing process and also claim to be world's largest overall

independent supplier. It is alleged that in early 70's plaintiff developed RF system, an

automatic accounting and transaction - processing program that featured standard

software and real time computing and later came to be referred as R/1. Plaintiff's

software has been used by the defendant without any license and claimed to seek

delivery up of the infringing material besides seeking rendition of accounts.

Pleadings of Plaintiff

1) Plaintiff states that the software program developed and marketed by them are

'computer programs' with in the meaning of section 2(f) of the Indian Copyright Act,

1957 and also included in the definition of a 'literary work' as per section 2(o) of the

copyright act. It is also alleged that both India and Germany are signatories of the

110

Berne Convention, Universal copyright convention and WTO agreement and

therefore rights of the plaintiff companies are protected in India under Copyright Act.

2) It was found by the plaintiffs that on its website www.neologikindia.com the

defendant was making offer for providing various training programs in relation to

plaintiff's software products and had also been regularly advertising the training

programs offered by it with respect to the software programs of the plaintiff,

especially on SAP 4/3 and ABAP/4.

3) It also alleges that due to high levels of customization the software products

they have purpose specific versions of their software license agreements which are

licensed for particular stream of use and cannot be used in any manner or for any

other purpose. Besides End User License Agreements (ELUAS), the plaintiff also

claim to have specific license agreements to govern comprehensive and continuing

education training programs, required for effective and meaningful use of its products.

4) Plaintiff company developed and introduced SAP in the year 1979 and

SAP/R/3 in the year 1992 plaintiff company stated that their products are

manufactured to meet the specific needs of each customer aid are not available off the

shelf or through e- stores etc.

5) It further stated that the plaintiff's company needs specially trained software

professionals to load, execute, access, employ utilize, store and display integrated end

to end solutions. It further stated that it never even grant a single valid license in

favour of defendant and police in the raid on 19th October 2004, recovered two

servers having pirated version of plaintiff's computer program SAP1 R/3 version 4.7

IDES. And again within 3 months the defendant again resumed his illegal activities of

imparting unauthorized training in plaintiff's software products.

Judgment

By the reasons given above, it is clear that the defendant infringed the

copyright of the plaintiff by using the pirated software R/3 and by imparting training

using the aforesaid software. During the course of arguments the counsel for the

plaintiff has prayed to grant permanent injunction and punitive damages. Punitive

111

damages were granted for unscrupulous persons who actuated by dishonest intention.

Defendant is restrained from using any pirated/unlicensed software of Plaintiff

Company including R/3 and is further restrained from imparting training in the

aforesaid programs of plaintiff without requisite license, basing on the case punitive

damages amounting to Rs. l Lac to the plaintiff against the defendant. And the

plaintiff have valued the suit at Rs.6 Lac for the purpose of damages and have also

paid the requisite court fee on it, therefore, the relief of damages were granted to the

plaintiff.

The S.C took a stand in favour of the plaintiff and held that the defendant has

infringed the rights of plaintiff.

In Saregama India Ltd Vs Balaji Telefilms Ltd. & Ors

was heard before Justice I.P. Mukerji at the Calcutta High Court on 18 April,

2012.

The recent histrionic abilities of the Bollywood actress Vidya Balan in the

widely-acclaimed movie ‘Dirty Picture’. On April 22, 2012, the movie is due to have

its satellite launch, following which it will be aired in television channels across the

country. It is at this stage that a recent petition has been filed seeking an injunction

from broadcasting the film itself or at any rate the song therein titled "Ooh La La Ooh

La La".

The petitioner alleged that the said song, which has attained considerable

popularity till date since the music of the film had been released on television on 21st

October, 2011 (and the film itself was released in theatres on 2nd December, 2011),

contains the lyric and tune "Ooh La La Ooh La La", which stands in violation of the

petitioner’s copyright in the song "Ui Amma Ui Amma", from an old Hindi film

‘Mawali’, having Mr. Bappi Lahiri as its music composer.

During the hearing of this matter, both the songs were played on a laptop for

the judge’s benefit and he found quite a strong similarity between the tunes. However,

the defendant argued that such a small part of the old song spanning a few seconds

has virtually no content in lyric or music and hence there is no copyright of any

112

person in it. Therefore, the allegedly offending part of the song "Ooh La La Ooh La

La" cannot be deemed to be a copy of that part of the old song.

The petitioner relied on a deed of assignment of copyright to strengthen his

case. However, the defendant contested the validity of the said deed, arguing that

there was no specific duration of the assignment mentioned in the deed [As per

Section 19(5) of the Copyright Act, 1957, if the period of assignment is not stated it

shall be deemed to be five years from the Deed of Assignment]. The petitioner

countered the argument by saying that S. 19(5) was introduced in the 1957 Act at a

much later point of time after the assignment. The Court found that the deed appeared

prima facie to be an unconditional and absolute assignment and before the amendment

and hence rejected the defendant’s challenge regarding the deed’s validity.

An important issue was why the petitioner delayed so long before bringing this

infringement suit, which, according to the defendant, resulted in loss of plaintiff’s

right to get an ad interim order of injunction. To support this claim, the petitioner

relied on the twin cases of Mr. Ajay Monga vs. Red Chillies Entertainment Pvt. Ltd.

[Bombay High Court, 6th August, 2008] and Nariman Pictures and Ors. Vs. Baba

Arts Ltd. And Ors. [Bombay High Court, 22nd December, 2011]. The Court in the

present matter held that there existed substantial similarity between the two tunes and

their overall impact, despite the difference in words. It was also held that the

petitioner, in the light of Ram Sampath vs. Rajesh Roshan & Ors [2009(40) PTC

78(Bom.)] made a prima facie case of infringement, by arguing that even a small part

of the song is capable of copyright protection. However, the Court made two

important observations regarding this,

Regarding the question of inordinate delay by the plaintiff, the Court

considered the case of Medas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia &

Ors. [(2004) 3 SCC 90], which stated that if infringement is established then

injunction must follow as a matter of course. However, the two aforementioned

Bombay High Court judgments went on to posit that when the balance of convenience

is altered by reason of delay, then the above principle of automatic grant of injunction

may not be applicable. Given that considerable money has already been spent in

buying the broadcasting rights and that the film is scheduled to be telecast on 22nd

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April, 2012, grant of an injunction at this stage, according to the defendant, would

cause irreparable damage to be suffered. Considering such a situation, the Court

refrained from issuing such injunction, in the light of the balance of convenience

argument.

The Court also considered petitioner’s letter dated 7th February, 2012,

wherein it had informed the defendant of such infringement, but expressed

willingness to grant license for consideration. It was the Court’s opinion that the

petitioner had not lost the right of exploitation of the copyright by sale of the license

to the defendant and given that it had been deprived of such right by the defendant’s

subsequent actions, it is entitled to compensation from the defendant. The defendant

was thus permitted to carry on the telecast of the movie as scheduled, but was also

directed to deposit a sum of Rs. 2 Crores (the estimated amount for which the

petitioner might have issued license to the defendant) with the Registrar, Original

Side within 25th April, 2012, to the credit of the suit.

It thus seems good news for the public who will still be able to enjoy the

movie from April 22 onwards without any cuts/deletion, although perhaps the time

has come to question the tactics employed by certain people to file infringement suits

just prior to a movie’s release/satellite launch, knowing well that the

producers/distributors will be hamstrung by the fear of suffering ruinous financial

losses in case an interim injunction is awarded.

CHAPTER - 6

CONCLUSION

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As the law is not static it has to be changed according to the changes in the

society so also copyright law. Law also changed in order to suit the changing needs of

the society. However law should preserve the original purpose of copyright, which is

the protection and acknowledgement of the creator’s work regardless of interest of

publishers. The main interest of many authors is to protect the integrity of their works.

Profiting from the use of the work is secondary in many cases, the commercial

publishers’ interest. On the other hand to got profit from the work.

When the present copyright law was enacted in 1909, the problem of

photocopying copyrighted works did not exist. The issue came into existence with the

introduction of copying machines; which are capable of transferring and replicating.

Copyrighted materials quickly and in quantity, but also of making copies which in

themselves are adaptable for the production of further copies.

The problem has intensified in recent years with the progressive development

of relatively in expensive copying machines which have simplified and greatly

extended the practice of photocopying among scholars, researchers, students and to

the publishers. The implications of this phenomenon on the copyright law have a

direct bearing upon the dissemination of information in general and scientific and

technical information in particular with the "explosion of information and the flood of

materials since the 19th century. Library photocopying has become essential in the

effective dissemination and use of information for research or case study. The urgent

and serious needs of readers and libraries in this area are manifested in the library

clientele's demands, the vast number of research projects, the government and

foundation grants in support of such projects, and the Government’s policies and aid

to libraries in support of photocopying.

The publishing industry is having a moral obligation to disseminate

knowledge but it is also has a "business or legal obligation" to stockholders,

employees, dealers and clients to stay a float by realizing profits that will in turn

enable publishers to fulfill their moral obligation towards the public. Copyright law is

an incentive to the authors and their assignees to create and disseminate knowledge. It

is in essence, a monopoly, a trade-off or a price that society has to pay in return for

the advancement of science and useful arts. Statutory copyright therefore is based on a

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profit motive for both the author and entrepreneur. The question is whether the

interest of the copyright owner is sufficient to warrant the extension of the copyright

monopoly to cover library photocopying.

During the first hundred years, the Berne Convention, containing as it does a

detailed codification of provisions, has helped greatly in harmonization of laws over a

considerable part of the world; these laws are governed not only by the principle of

national treatment but also by provisions setting minimum standards for a

comprehensive protection of the rights involved. The challenge to international

copyright in the last twenty of the first hundred years of the Berne Convention was to

find solutions to the problems of the developing countries; some of these problems

will perhaps continue for the certain time. The main problems to be tackled in the

future will, however concern those posed by the new technologies. The development

of technologies which are having both quantitative and qualitative effects on

copyright are now quite well known in specialist circles, the main ones are

reprography private recording of phonograms and videogames, cable television,

satellite broadcasting, computer storage and retrieval of works protected by copyright,

computer programs data bases etc.

The impact of new technologies on the rights of copyright owners. Some

important steps are certainly indicated already the starting of second century of the

Berne Convention, where by copyright proprietors could maintain their rights in the

face of fast developing technologies. First of all these would have to be in the

direction of enforcement procedures in particular through the enhancement of civil

remedies and panel sanctions.

It is necessary to contain the problems of commercial piracy, illegal

reproduction and distribution of protected works and other infringements of copyright

which are becoming increasingly widespread with the new means of reproduction.

The second appears to be that national copyright legislations need a constant review

and updating from time to time in order to provide solutions to these and other

problems posed by the constantly and rapidly developing technologies. There is also

the need for action by governments nationally both in terms of an expression of

political will as well as administrative determination to follow up on these. In fact

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international copyright as enshrined in the Berne Convention as well as the

development of creativity, cultural exchange as also the cultural industry, largely on

the positive role of national governments in providing effective legislation and

constantly reviewing it, as well as ensuring efficient implementation of such

legislation.

The Berne Convention has influenced the copyright policy of several

countries, including a number of developing countries and has, as also stated earlier,

been drawn upon in the preparation of copyright legislation, providing a balance

between the needs and interests of authors, publishers other copyright owners, as well

as those of the general public. The conventional rights effectively implemented could

serve as an incentive to one's national authors and their assigns to create and

disseminate knowledge. It is something the society necessarily accepts if it wishes to

encourage intellectual creativity to ensure the progress of the sciences, the arts and of

knowledge in general, to promote the industry using authors’ works and to render it

possible to distribute such works in an organized manner among the widest possible

circle of interested persons.

It may be commented that for a country contemplating new copyright

legislation it is more important to ensure that the legislation harmonizes with the

general jurisprudence and the main body of statute law within the country with which

the judiciary, the legal profession and the businessman will be familiar than it is to

draft a law on the basis of copyright intellectual concepts which are a lien to the legal

philosophy and practice of the country.

Half a century ago the Bombay high court had examined the same question in

the Wellingdon cinema vs. the performing right society ltd., and rejected the

contention that by authorizing the use of his work in a cinematograph film or record

the author or composer gave up the performing right in his work so far as exclusive

performing right came into existence with respect to the film or record so created.

The action was brought by BPRS against the exhibitor, the Wellingdon

cinema, who had exhibited a film entitled "Love, life and laughter" alleging that there

by the exhibitor committed infringement of their copyright in some musical works

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(songs). The performing right in the musical works had been assigned to the BPRS,

but a couple of months earlier the film producer had obtained a license from the

composers for using them "in the production and exhibition of the film". The license

was, however, subject to the proviso that it would not entitle the film producer to

perform the said musical works or any part there of in public and permission to

perform the same shall be obtained by the license from the owner or controller of the

performing right there in.

The several exclusive rights of authors and composers of literary and musical

works listed in Sec.14 (l)(9a) are independent of each other. They are not in any

manner affected by or sub-ordinate to, the exclusive rights in respect of the separate

copyright in a cinematograph film, makes this abundantly clear. The only exception is

that contemplated by section 17 proviso (c) where a work has been produced by an

employee - composer or employee - author in the cause of his employment under a

contract of service. In all other cases the rights belong to him exclusively, until he

assigns any of his rights in the maimer prescribed by the law, or granting a license

similarly.

It is the statutory duty of a performing right society to publish the tariff of

fees, royalties and charges in respect of the public performance of works to issuing or

granting licenses. Its failure to do so may bar infringement right society is envisaged

as one for the protection of authors, composers and publishers of musical works and

for the performance of such works which number in thousands at innumerable

theatres and other public places. It acts as a sentinel and guards against the

deprivation of the performing right of authors and composers who individually are

often too weak in their bargaining strength to protect themselves. The healthy growth

of this institution is essential to protect intellectual works belonging to this category

from exploitation.

The provision in the act that the exhibition of a cinematograph film after the

exploitation of the term of the copyright in it will not constitute an infringement of the

literary or musical work utilized in the film will be redundant if as held by the

Supreme Court and the Calcutta High Court, there is no such infringement by the

exhibition of the film even when copyright subsists in the film. That provision is a

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necessary of Section 13(4) and gives recognition to the legal position that the two

copyrights are independent of each other. It is hoped that the Supreme Court will avail

itself of the earliest opportunity to undo its unfortunate decision in IPRS Vs. EIMPA

and with it the damage done to authors and composers, as well as their organization

the performing right society or else parliament must take necessary legislative

measure to restore authors and composers the protection it intended for them when it

enacted section 13(4) in the Copyright Act, 1957 which the judicial decisions have

taken away.

Sections 63, 65 and 67 clearly prescribe that only persons who knowingly

infringe copyright are committing penal offences. Bu t on the other hand, these

offences are not strict liability offences either. As regards civil liability however, it

would be true to say generally that the Indian law does not, barring one exception,

regard knowledge of infringement on the part of the defendant as a basis of liability. If

a defendant permits for profit the use of any place for public performance of

copyrighted work, he can use under section 51(a)(ii) show that the was unaware of

subsisting copyright or that she had reasonable grounds to believe that such copyright

did not subsists at the relevant time. If this is proved the plaintiff is only entitled to

injunction and account of profits but to no other remedy. But in all other cases defined

by section 51 and the chapter providing for civil liability, the defendant who does

anything to infringe copyright or deals in specified manner with infringing copies

remains liable for damages for infringement. In this sense, the Indian law does not

distinguish between direct and indirect infringement of copyright for purposes of civil

remedies. All that has to be proved is the fact of infringement from that the liability

follows. The Indian laws, subject to the above mentioned solitary exception, no longer

cognizes the possibility of an innocent infringer.

It is obviously needed to increase copyright consciousness as an aspect of the

Indian social and cultural development and justice. Clearly, as a priority task, the

obstacles imposed by the crisis of Indian adjudicatory system, especially enormous

delays, staggering costs and wavering decisional law have to be redressed and access

to adjudication improved. The present structural dis-incentives to the use of protective

provisions of copyright legislation have to be removed. And this can perhaps be best

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done through a network of easily accessible copyright or intellectual property,

tribunals throughout the country.

Time has certainly came in India for a more mature appreciation of the fact

that copyright law & justice are more than market and property categories primarily

protecting copyright industries. Copyright legislation must be so designed as to

protect as well as the rights of intellectual and cultural laborers’ upon which

ultimately the social interest in cultural progress depends.

6.2 SUGGESTIONS

After this comparative study it is clear that except in India the right to sue for

infringement of copyright/performers rights of a licensing body are recognized in

most of the countries across the globe, if the owners of these rights so desire. By and

large in no country the statute provide prosecuting power on these bodies for any

infringement of rights thy license. But when these entities are empowered by their

members, whether in the capacity of an assignee, licensee or merely as an agent, the

Courts have endorsed such a right and allowed the licensing bodies to bring a legal

action for the infringement of the copyright/performers rights. Another thing, which

is unambiguous, is that in every system a licensing body plays a major and effective

role in policing the infringement of copyright/performers rights. It is therefore in a

much better position to sue for the infringement of copyright. It also cuts down on

unnecessary litigation, extreme expenses and difficulty for the individual owners of

copyright/performers right to enforce their rights both in the country of origin and

outside. Also, the bargaining power of the individual right owners is very weak vis-à-

vis the power of the licensing bodies.

This function of suing the infringer of copyright/performers right (if) carried

out by a licensing body will make a more effective body for collective administration.

It will also prove more convenient for the owners of these rights as once they are the

members of the licensing body they can be satisfied that the latter will spot and

further take care of any infringement of their rights (though the cost of litigation is

borne by them). Also at no point is such position of law of any disadvantage to the

alleged infringer.

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It is due to these aforementioned reasons that it is submitted that if authorized

by the members, there is no reason why in India too a licensing body should not be

permitted to initiate a suit for the infringement of copyright/performers right, whether

in the capacity of an assignee, exclusive licensee or as an agent. The Indian Courts

need to go beyond the literal or restrictive interpretation of the statute and need to

look at the practicality of the issue at hand.

Technological Protection Measures (TPM) is any technological devices or a

tool that prevents unauthorized or illegal access to, or copying or reproduction of

copyright materials. There are two categories of TPM – access control and copy

control Access control TPMs prevent unauthorized access to material while copy

control TPMs prevent unauthorized copying. Access is restricted through use of

password and/or encryption. The Copyright Act does not include regional coding on

DVDs or computer programs in its definition of an access control TPM. TPMs are

mostly used in material as sound recordings, films and computer software, as well as

electronic artistic and literary works.

Digital Rights Management (DRM) TPMs are controversial. Copyright

owners support the use of TPMs as they prevent users from illegally copying their

works and infringing their copyright. Users of copyright material believe that

although TPMs prevent infringing uses of copyright material, they can also prevent

legitimate uses of copyright material under certain provisions such as the statutory

Licenses for educational purposes, Fair Dealing and Personal Use.

A well known example of TPM is the Sony Root Kit which was included on

Sony audio CDs and design to prevent music on the CD being transferred to a

computer and then burned to another CD. However, this TPM installed a Rootkit

which left the user’s computer vulnerable to attacks by malware or spyware. The

users was usually unaware of that the Rootkit I been installed and therefore their

machine was vulnerable. Legal action was taken against Sony and they recalled all

the CDs that included the Rootkit.

Under the Copyright Act it is not permitted to use, manufacture, import,

supply or communicates devices to circumvent access control TPMs. And allow

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unauthorized access or copying. Legal action may be taken against anyone who

deliberate or knowingly uses a device to circumvent, manufacture or supply such a

device or provide a service circumventing TPMs. It is not permitted to circumvent a

TPM to copy or access material under the Fair Dealing or Personal Use provisions.

There are some limited exceptions under certain circumstances.

Educational Purposes – You may circumvent a TPM if you wish to exercise

any of the rights permitted under the Statutory License, e.g. copy a ‘reasonable

portion’ of a work for educational purposes.

If you wish to copy the recorded music for educational purposes under the

Music License but are prevented from doing so by a TPM, plea contact the Copyright

Office, as we may be able to provide another copy without the TPM.

Assisting Persons with Print or Intellectual Disabilities A TPM can be

circumvented for the purpose of reproducing or communicating

material to assist people with print or intellectual disabilities.

Libraries and Educational Institutions – Libraries and educational

institutions are permitted to circumvent TPMs for the sole purpose of

making an acquisition decision regarding a work. This exception does

not apply if the TPM being circumvented for additional purposes other

than making an acquisition decision or if the work is available

elsewhere without needing to circumvent the TPM.

Interoperability – It is permitted to circumvent a TPM on a legally

obtained, non-infringing copy of a computer program for the sole

purpose of achieving interoperability between computer programs, so

long as the copyright in the computer program is not infringed. This

exception does not apply if the TPM is being circumvented for

additional purposes other than achieving inter-operability or if the

work is available elsewhere without needing to circumvent.

These exceptions permit the circumventing of a TPM but they do not

cover the manufacture or supply of a device for circumventing a TPM. For

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example, while it is permitting that a TPM might be circumvented by an

educational institutions to provide access to material for educational purposes

under the Statutory License, the exception would not cover the manufacture or

a supply of a device by an educational institutions to circumvent a TPM to

provide access to material for educational purposes under the Statutory

License.

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BIBLIOGRAPHY

SECONDARY DOCUMENTS

1. BOOKS

Dr. G.B. Reddy's Intellectual property Rights and the Law.

P. Narayanan Intellectual property Law.

N.S. Gopala Krishnan Intellectual property and criminal Law

Vikas vashishth Law and practice of Intellectual property in India

Manual of copy right Enforcement The federation of India

2. JOURNAL AND PERIODICALS

All India Reports

Patent Trademarks copyright cases Academy of Law Review

Andhra Law Times

Encyclopedia of social Sciences

Journal of Bar Council of India

3. WEB SITES

www.wipo.org world Intellectuals property organization

www.spicyindia.org

www.PCTgazette.wipo.int

www.Inta.org

www.Antipiracy.india.com

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