CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW & GOVERNANCE

Intellectual Property Law
PROJECT
Economic Rights of Authors/Owner under copyright

Submitted By:- Submitted to:-

RAJEEV RAJ Dr. Digvijay Singh
B.A.LL.B Assistant Professor
9th Semester
Enrolment- CUSB1513125033

1
 ACKNOWLEDGEMENT

I am very grateful to my teacher who gave me very important and interesting project work.
My project work is on 'Economic Rights of Author/Owner under copyright'. I started and did
this project work under the supervision and guidelines of Dr. Digvijay Singh Without his
suggestions and guidelines it would have been very difficult to complete the task within
prescribed period of time.

He suggested me the topic of project and the steps that should be followed while making the
project. The other very important is that he suggested me the object of making research work.

So I acknowledged him for this gratuitous work who provided time and help from his busy
schedule. At the same time I acknowledge to my family members who provided me various
kind of helps in kinds of time as well various type of resources to complete the project.

I am also thankful to library staffs who provided me books when required to me to complete
the research work.

Other thing from which I came to know the practical approaches is that he gave opportunity
to sit in the various classes.

RAJEEV RAJ

2
 TABLE OF CONTENTS
 RESEARCH TITLE……………………………………………………….......05
 RESEARCH METHODLOGY……………………………………………….05
1. INTRODUCTION 06-07
2. COPYRIGHT: A BUNDLE OF RIGHT……………………………………..06
2.1 Rights of Authors……………………………………………………….06
2.2 Economic Rights………………………………………………………...07

2. LITERARY, DRAMATIC & MUSICAL WORKS 08-13

2.1 Reproduction of work in any material form………………………….…09

2.2 Reproduction of work in computer………………………………………09
2.3 Reproduction of compilated work………………………………………..09
2.4 Reproduction in relation to dramatic works…………………………….10
2.5 Reproduction in relation to musical work………………………………..10
2.6 Issue of copies to the public …………………………………………….....10
2.7 communication to the public………………………………………………11
2.8 Performance of the work in public………………………………………...12
2.9 To make any cinematograph or sound recording……………………...…12
2.10 Adoption of the work…………………………………………………...….13
2.11 Resale share right in original copies……………………………………....13
3. COMPUTER PROGRAMME 14-16
3.1 Reproducing or coping the computer programme………………………..14
3.2 Issue of copies to the Public…………………………………………………14
3.3 Right of rental………………………………………………………………..14
3.4 Performance or Communication of work in Public……………………….15
3.5 Making Cinematograph Film or Sound Recording of Computer…………15
3.6 Making Adoption or Translation of Computer Programme……………….16
4. ARTISTIC WORK 16-
19
4.1 Right of Reproduction………………………………………………………...16
4.2 Resale Share Right in Original Copies……………………………………….19
5. CINEMATOGRAPH FILM 19-
21
5.1 Making of Copies……………………………………………………………..19

3
 5.2 Rights of Copies……………………………………………………………….20
5.3 Communication of Film to Public……………………………………………21
6. SOUND RECORDING 22-
23
6.1 Making a Copies………………………………………………………………22
6.2 Rental Right and Communication Rights……………………………………23

7. CONCLUSION 24
8. BIBOLOGRIPHY……………………………………………………………………25

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RESEARCH TITLE – Analysis on Economic Rights of Author/owner under copyright

RESEARCH METHODOLOGY

The research is based on Economic Rights of Author/owner under copyright. Basically the
data which has been collected for the research purpose is particularly of doctrinal in nature. It
has been collected from various books, sites, magazines and newspaper articles. So basically
the analysis has been done through case study.

OBJECTIVES OF RESEARCH

 To understand the Economic Rights of Author/Owner.

 To understand the copyright is a bundle of right.
 To study the various exclusive rights to the copyright holder.

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INTRODUCTION
The owner of copyright in a work enjoys negative rights. Although the phrase "exclusive
rights" is used in section 14 of the Copyright Act, 1957, yet the copyright owner does not
have a positive right to exploit his work, whether by making copies, performing it or
otherwise. The right enjoyed by copyright owner is a negative one i.e. it is the right to prevent
others from using his work in certain ways, and to claim compensation for the usurpation of
that right.1 The exclusive rights are also known as economic rights of the owner. These
exclusive rights are subject to the provisions of the Act.

Copyright is purely a creation of the statute under the 1957 Act. What rights the author has
in his work by virtue of his creation, are defined in sections 14 and 17 of the act. These are
exclusive rights, but subject to the other provisions of the Act. In place, the work should
qualify under the provisions of section 13, for the subsistence of copyright. Although the
rights have been referred to as exclusive rights, there are exceptions to them which are listed
in section 52.

Section 16 provides that no person is entitled to copyright or any similar right in any work,
whether published or unpublished, otherwise than under and in accordance the provisions of
this Act or of any other law for the time being in force. However, any or jurisdiction to
restrain a breach of trust or confidence is not to be abrogated by the provision.

Thus, as per section 16, common law protection of copyright is not available. Co law rights
under copyright law were abrogated earlier by section 31 of the Copyright 1911, which was
enacted to amend and consolidate the law relating to copyright.

1. Copyright: A Bundle of Right

The copyrights conferred under section 14 of the Act consist of a bundle of rights. The owner
of a copyright is entitled to assign and licence each of those rights separately or in bundles.
The bundle of rights could vary in complexity depending upon the nature of the work-
literary, dramatic, musical recording or cinematographic films. In the case of The music
videos, which is essentially a cinematographic film, rights could: following works: lyrics of
the song (literary), music composition (musical), choreography and performance (dramatic),
the sets (artistic), the capturing of the musical work on taper (sound recording) and the
capturing of it all on a film (cinematographic film). Under section 14, the rights to reproduce,
1
The Modern Law OF Copyright (London, 1980)

6
perform, adapt, translate, make copies of these works exists. Each of these rights could be
assigned, reassigned and licensed. For example, the owner of the right in a cinematographic
film, can licence the literary and musical right in the lyries to a radio channel to be aired, and
also assign the license to make copies the cinematographic films on cassettes and CDs etc. to
a person and so on. The work thus follows a trail of licences.2

In Sholay Media and Entertainment Pvt. Ltd. v. Parag Sanghavi3 also, the court beautifully
explained the underlying work in the cinematographic film Sholay as:

(1) The script and screenplay of the film as literary work.

(2) The sound recording and recording of the background score of the film as sound
recording and as protected under section 14(e).
(3) The underlying musical works (i.e., music) which are incorporated in the Recordings
(i.e. songs of the film) and background score and synchronized with the as musical
work.
(4) The underlying literary works (i.e., lyrics) which are incorporated Sound recordings
(i.e., songs of the film) and synchronized with the film as protect Under section 14(a);
the artistic works (i.e., art works/sets/costumes), which Incorporated in the film as
protectable under section 14(a); and the dialogues Dramatic works of the
cinematographic film as protectable under section 14(a).

It is, however, noteworthy that after the 2012 amendment, the rights of the authors of
Original literary, dramatic, musical or artistic works, which are incorporated in
Cinematograph film, shall not be affected. This means that even if a cinematograph is made
at the instance of film producer for valuable consideration, or in the course of the producer’s
employment under a contract of service, the rights of authors of underlying works, i.e.,
literary, dramatic, musical and artistic work shall remain unaffected.4

1.1 Rights of Authors

The Copyright Act, 1957 provides both economic and moral rights to authors. Economic
rights are those rights which help the author to commercially exploit his creation while
morals rights are those rights which relate to protection of personality of the author and
integrity of this work, and similar matters.5 These rights have been recognized by the Berne
Convention, 1886, the TRIPS and various domestic laws. A notable difference brought under
the TRIPS is that the Member States do not have any obligation to protect moral rights of
authors; the obligation is confined to economic rights as per Article 9 of TRIPS. The
economic rights of the author are enumerated in Section 14, mainly, and the moral rights are
provided via Section 57 of the Copyright Act, 1957.

1.2 Economic Rights

2
Super cassette Industries v. Nirulas Corner House (P) Ltd., 2008 (37) PTC 237 (Del)
3
2015 (64) PTC 546 (Del)
4
Section 17 of the Copyright Act, 1957.
5
Sterling JAL, World Copyright Law (Sweet & Maxwell)

7
Economic rights are those rights which help the author reap economic benefits. These rights
have been recognized in one form or the other since fifteenth century.3 As per Section 14 of
the Copyright Act, 1957, different rights are recognized for the works considering its nature.
The section provides that it is the exclusive right of the author to do or authorize the doing of
the acts provided there under. The important rights generally recognized by all types of works
under the Indian statute that attracted much judicial interpretation includes reproduction
rights, right of distribution and right to communicate work to the public.

2. Literary, Dramatic and Musical Works

The copyright Act, 1957 provides to the owner of copyright in relation to a literary, Dramatic
or musical work, the exclusive rights, subject to the provision of this Act, To do or authorize
the doing of any of the following acts or any substantial part thereof, namely;

(1) To perform the work in public, or communicate it to the public;

(2) To make any cinematograph film or sound recording in respect of the work;

(3) To make any translation of the work;

(4) To make any adaptation of the work;

(5) To issue copies of the work to the public not being copies already in circulation;

(6) TO reproduce the work in any material from including the storing of it in any medium

By electronic means;

(7) To do, in relation to a translation or an adoption of the work, any of the acts specified in
relation to the work in sub clauses (i) to (vi).6

The aforesaid rights are subject to the provisions of assignment and licensing and their
Limitations thereof. Further, the rights of a licence are not the same as those of the owner and
there is a fine distinction between the limited rights of the licence and those of the owner.

2.1. Reproduction of Work in any Material Form

In Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., 7 Lord Reid observed that broadly
reproduction meant copying and did not include cases where an author or Compiler produced
a substantially similar result by independent work without copying. If he did copy, the
question whether he had copied a substantial part depended much more on the quality than on
the quantity of what he had taken. One test might be whether that part he had taken was novel
or striking or merely a common place Arrangement or ordinary words or well-known data.
The correct approach was first to determine whether the plaintiff's work as a whole was
'original' and protected by copyright, and then to inquire whether he part taken by the
defendant was substantial. Hanfstaengl v. W.H. Smith & Sons, Kekewich J. stated that "a

6
Section 14 (a) of the copyright Act, 1957
7
John Wiley & Sons Inc. V. Prabhat Chander Kumar Jain, 2010 (44) PTC 675 9Del)

8
copy is that which come so near to the original as to suggest that original to the mind of the
person seeing it”.

 In Franz Hanfstaengl v. H.R. Bainos and Co.,8 the House of Lord observed:

The question may be solved by taking each of the works to be compared as a Whole and
determining whether there is not merely a similarity or resemblance in Some loading feature
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 Similarity as would lend one to say that the alleged
infringement is a copy or reproduction of the original. The meaning of reproduction was
explained in British Northrop V. Texteams Blackburn in which it was held that "there must
be a high degree of similarity Before one thing can be said to be reproduction of another; but
minor or trivial Differences with not prevent one work from being a reproduction if it makes
a substantial Use of the features of the original work in which copyright subsists. Further, in
Francis Day & Hunter v. Bron," following principles were laid down by Wilmer L.J. to
consider whether the acts of defendant constitute reproduction of Plaintiff’s work:

(1)There must be a sufficient degree of objective similarity between the two works and there
should be some causal connection between the plaintiff’s and the defendant’s Work.

(2) Whether the defendant was or was not consciously aware of such caused connection is
quite irrelevant.

(3) The fact that the defendant denies that he consciously copied affords some evidence to
rebut the inference of causal connection arising from the objective similarity, but is in no way
conclusive."

2.2 Reproduction of work in computer

In India, the Copyright (Second Amendment) Act, 1994 amended section 14(1) (a) (i) the
Copyright Act, 1957 which provided "to reproduce the work in any material form" now
provides "to reproduce the work in any material form including the storing of any medium by
electronic means". In Apple Computer Inc. v. Mackintosh Computers Ltd.,9" the court held
that it was infringement of the copyright in a literary, dramatic, musical work to reproduce
the we in computer-readable form, such as on magnetic tape or in a magnetic core.

2.3 Reproduction of Compilated Work

Reproduction or copying in relation to certain compilated works by a subsequent compiler is

not allowed as there exists a separate copyright in such works. Thus, in Kelly v. Morris," it
was held that in case of a dictionary, map, guidebook, or directory. There are certain common
objects of information which must, if described correctly described in the same words, a
subsequent compiler is bound to set about doing himself that which the first compiler has
done. In the case of a road-book, he must the milestones for himself, and the only use that he
can legitimately make of a previous publication is to verify his own calculations and results.
8
1895 AC 20
9
(1988) 44 D. L. R. (4th).

9
That the defendant is not at liberty to use or avail himself of the labour which the plaintiff
when obtained. The principle is that the defence is not at liberty to use or avail himself of the
labour which the plaintiff has done for the purpose of producing his work. 10 Similarly, in case
of abridgments, precis, synopses and similar works, the question whether copyright is
infringe gal work wiil depend upon whether the production has involved a substantial use of
copyright material , or only of ideas and information. Any work which consist of extracts
from the original either verbatim or with merely colourable alteration of language which is
not just fair use of the work would constitute an infringement.

2.4 Reproduction in relation to dramatic works

A dramatic work may be infringed by a second dramatic work which reproduces the dramatic
incidents of the former without using or imitating language. It is not necessary that the word
in dialogue should be the same. The mode in which the ideas are worked out and presented
may constitute a material portion of the whole work. That is therefore important is the
dramatic value and important of what has been taken even though the portion may in fact be
small and the actual language not copied. However, if they include in common knowledge
resemblance is bound to come and if worked out separately and on independent lines the later
work may not result in infringement of the former.

2.5 Reproduction in relation to musical works

In relation to musical works, the important question to be considered is whether the alleged
infringer has made use of a substantial part of the skill and labour of the original composer. If
the appropriated music can be recognized by the ear, the adding of recognizing the
similarities or differences which may exist between the two musical works. A musical work
can also be reproduced without taking a single note directly from the original. Further,
making of an adaptation of plaintiff's musical work without his permission is not allowed.

2.6 Issue of copies to the public

The owner of copyright has the exclusive right to issue copies of the work to the public not
being copies already in circulation.11 Therefore, once copies of a work have been validly
issued to public, the subsequent circulation of those copies shall not infringe the rights of the
owner. Thus, copies already sold or in circulation are excluded from the exclusive right to
issue copies. This is natural since in the case of copies already sold Orin circulation there can
be no restriction in reissuing those copies to the public by persons who have acquired them
law full.

The genesis of the principle of exhaustion of rights is based on the theory that the right holder
can only control the first sale of the article and exercises the rights of the same and cannot
complain of the infringement on each and every subsequent sale of the same. In Jon Wiley &
Sons Inc. v. Prabhat Chander Kumar Jain,12 the defendants after purchasing the low-priced
editions of the books from the licences of the plaintiffs ported them to those countries for
10
Independent Television Publication Ltd v. Time Out Ltd,. (1984)
11
Section 14(a)(ii) of the copyright Act, 1957.
12
2010 (44) PTC 675 (Del)

10
which they were not meant. The court stated that the owner had full right to enjoy the
property and if the property was purchased from the owner only then would the owner lost
his rights. In this case "the purchaser after Purchasing from the exclusive licence cannot by
claiming the principle of exhaustion or extinguishment of rights defeat the rights of the
owner.

It is noteworthy that the term 'publication' means making a work available to the 1Ssue of
copies or by communicating the work to the public.13 The definition of therefore, includes
issue of copies to the public and communication of the in to public.

Megarry J. in British Northrop v. Texteam." observed that publication took wherever the
publisher invited the public to acquire copies, not where the copies received. While
elaborating the meaning of "issued to the public” Megarry J. put reliance upon the following
observations in Francis, Day and Hunter v. Feldman Co.

"Issued to the public" can mean no more than an invitation or a right to the public to acquire
copies. Notice of the publication is given to the public by the copies sent to the British
Museum and to the universities. I do not say that that satisfies the statute. I think it does not,
but issued to the public" can mean no more than having them on sale. You need not advertise
and you need not call the attention of the public to the fact that you have published, if you are
prepared to supply on demand. Here, the moment there came a demand they fully satisfied it.

2.7 Communication to the public

Section 2(ff) of the Copyright Act, 1957 defines "communication to the public’ to mean:

Making any work or performance available for being seen or heard or otherwise enjoyed by
the public directly or by any means of display or diffusion other than by issuing physical
copies of it, whether simultaneously or at places and times chosen individually., regardless of
whether any member of the public actually sees, hears or otherwise enjoys the work or
performance so made available.

The exclusive right relates only to communicating the work to the public and not private
audience. The explanation to the definition of "communication to the public” provide the
"communication through satellite or cable or any other means simultaneous communication
to more than one household or place of residence including residential rooms of any hotel or
hostel shall be deemed to be communication to public". The object of this provision is to
restrict unauthorized commercial exploitation of the work by others and not private and
domestic use of the work. Thus, broadcasting organisation, shop, departmental store,
showroom, emporium, hotel, club, disco, bars, office establishments, television channels,
music which play music, impinges on the rights of copyright owner unless they get
permission of the copyright owner or the copyright society, as the case may to be.14

The author's right of communication to the public is threatened by the Internet with its
unprecedented ability to provide an easy, relatively inexpensive and flawless means to
13
Section 3 of the copyright act, 1957.
14
Indian performing right society Ltd. V. Krishnamurthy, 2012 (49) PTC 362 (Del)

11
distribute, modify and create both original and copied material mass audience, threatens to
upset the balance between private and public interest copy the copyright legal system.
Uploading copyright work on the Internet may Our threat to the right of communication and
the right of reproduction to the copy owners, as the same may be downloaded by large
number of people through Being the international nature of Internet, the copyright Owner my
able to locate infringers in many cases. Even though the infringers can be locate yet copyright
owner may not be able to sue them because of conflict of laws or lack of financial viability or
otherwise.

2.8 Performance of the work in public

Under the copyright Act of 1957. prior to the amendment of 1994, "performance was define
to include any mode or visual or acoustic presentation, including any such By the exhibition
of a cinematograph film, or by means of broadcast, or by Under the Copyright or by any
other means and, in relation to a lecture, included the such lecture, .the amendment of 1994
amended this definition. According to the new definition, 'performance in relation to
performer's right, means any visual or other presentation made live by one or more
performers.The copyright available to the copyright owner is confined to performance of the
public, the owner of copyright cannot prevent others from performing the work in the public.

2.9 To make any cinematograph film or sound recording

It is the right of copyright owner of literary, dramatic or musical work to make or authoriser,
once the author of a lyric or musical work authorised the producer of hers to make any
cinematograph film or sound recording with respect to that Musical , retains the right of
performing it in public for profit otherwise he sound to make a cinematograph film of his
composition by recording it on C track of a cinematograph film, he cannot complain of the
infringement of his owner of the cinematograph film causes the lyric or musical work on the
sound track Act of the film to be heard in public. The author of a lyric or the cinematograph
film and he cannot be restrained from doing so.15

2.10 Adaptation of the work

Copyright also subsists in the adaptation of literary, dramatic and musical was Copyright
owner of any such work has the exclusive right to make any adaption of it. Thus making of
adaptation of any such work without authority of the copyright an infringement. In India,
section 2(a) of the Copyright Act, 1957 defines "adaptation' to mean:

(i) In relation to a dramatic work, the conversion of the work into a non-dramatic work:

(ii) In relation to a literary work, the conversion of the work into a dramatic by way of
performance in public or otherwise.

(3) In relation to a literary or dramatic work, any abridgement of the work of version of the
work in which the story or action is conveyed wholly or by means of pictures in a form
suitable for reproduction in a book newspaper, magazine or similar periodical;
15
Music Broadcast Private Limited v. Indian Performing Right society limited, 2011 (47) PTC 587 (BOM)

12
(3) In relation to a musical work, any arrangement or transcription of the work.

(v) In relation to any work, any use of such work involving its re-arrangement alteration.

Clause (v) has been inserted in the principal Act by the Copyright (Se Amendment) Act,
1994. In relation to musical work, however, if a musical arranger decorates, develops,
transfers to a different medium or otherwise changes the music of a popular song as to make
his arrangement fall within the description original musical work, such arrangement or
adaptation is capable of attracting independent copyright. Such new arrangement shall not
amount to infringement of musical work of the author.

In addition to the aforesaid rights under section 14 of the Copyright Act, 1957, author of an
original manuscript of a literary, dramatic or musical work has a rights hare in the resale price
of such manuscript in India.

2.11 Resale share right in original copies

Section 53A provides that in the case of resale for a price exceeding Rs.10000- of original
manuscript of a literary, dramatic or musical work, the author of such work was the first
owner of rights under section 17 or his legal heirs shall, not assignment of copyright in such
work, have a right to share in the resale price or original manuscript. Such a right shall,
however, cease to exist on the experience term of copyright in the work. The share of author
in the resale price shall be fixed by the Appellate Board which shall not exceed ten percent of
the resale price. This provision is inserted to give the authors of original manuscripts of
literary dramatic or musical works the right to a share in the subsequent sales manuscripts,
which is the right commonly known as 'droit de suite and w contemplated optionally for
Member States by Article 14ter of the Besides promoting the interests of authors within
India, this provision would also have the effect of obliging those other Member States of the
for droit de suite in their own laws to accord similar rights to Indian authors sales effected in
their countries.

3. Computer programme

Under the Copyright Act, 1957, the owner of the copyright has the exclusive right to do or
authorised the doing of any of the following acts in respect of computer programme or any
substantial part thereof namely:

(1) To reproduce the computer programme in any material form including the of it in any
medium by electronic means

(2) To issue copies of the computer programme to the public not being copies already in
circulation;

(3) To perform the computer programme in public, or communicate it to the public;

13
(4) To make any cinematograph film or sound recording in respect of the computer
programme;

(5) To make any translation of the computer programme;

(6) To make any adaptation of the computer programme;

(7) To do, in relation to a translation or an adaptation of the computer programme, of the acts
specified in relation to the computer programme in (i) to (vi).

(8) To sell or give on commercial rental, or offer for sale or for commercial rental, any copy
of the computer programme; provided that such commercial does not apply in respect of
computer, programme where the programme itself is not the essential object of the rental.

3.1 Reproducing or coping the computer programme

Copying in relation to a computer programme means reproducing the computer in any

material form and this includes storing the work in any medium by once means. Thus, any
form of storage by modern technological means will amount. For example, making a copy of
a computer programme on a magnetic disk amount to copying to copying. Further, copying
may take the form of copying of lines of instruction, either verbatim or only colourably
imitated, or the structure of the plaintiff’s programme, in whole or in part.

In MAI Systems Corp v Peak Computers Inc16 the question before the US Court of Appeals
was whether copying of a copyrighted computer software into the temporary memory of a
computer will amount to ‘copy’ under the United States Copyright Act. It was held that ‘the
loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or
read only memory) into the memory of the central processing unit (CPU) causes a copy to be
made’. It was further held that copying into RAM is sufficiently permanent and stable to
permit it to be perceived, reproduced or otherwise communicated for a period more than a
transitory duration. From this case it is clear that even making a temporary copy would be
violation of the right of the copyright owner as per the US law.

In New York Times Co. Inc, et.al. v. Tasini et.al. 17 the question before the US Court of
Appeal was whether creating a computerized database or a database in a compact disk of
printed work will amount to reproduction and could be considered as a separate right. It was
held that when a right is given to reproduce the work in newspaper and magazine alone, all
other rights of reproduction vest with the author itself and consequently all other type of
reproduction is his exclusive right and hence creating database, computerized or otherwise,
will amount to reproduction and also violation. The defense taken by the defendants was that
they were the authors of the collected work and that it was this collected work that was
reproduced in databases. Rejecting this, the Court held that the author of collected works
holds the copyright only to those parts of the collection which is his creation. The base
material which forms part of the collection, even after it has become part of such collection,
remains the work of its original owner and not the person who has collected and compiled it.
16
991 F.2d 511, 26 USPQ2d (US Court of appeal, Ninth Circuit,1993)
17
533 U.S. 483,121 S.Ct.2381, 150 L.ED. 2d 500 (2001).

14
This seems to be the correct logic for the reason that if it is not so, the author of the collected
work will make undue benefit from the work of the actual author. In UMG Recording Inc v
MP3.COM Inc, it was held by the US District Court that recording from the compact disk and
uploading its compressed version on website is also reproduction. In India though there are,
to date, no cases dealing with database reproduction and uploading matters in the Internet
there is no reason to think that the judiciary will follow a line that will jeopardize the rights of
the author.

3.2 Issue of copies to the public

The Copyright owner of computer programme has exclusive right to issue copies of the
computer programme to the public not being copies already in circulation.

3.3 Right of rental

The copyright owner of computer programme has exclusive right to issue copies of the
Section 14(b)(ii) of the Copyright Act, 1957 provides that owner of copyright of a computer
programme has the exclusive right to sell or give on commercial rental or offer for sale or for
commercial rental, any copy of the computer programme. However, the right of commercial
rental is not available in respect of computer programme where the Programme itself is not
the essential object of the rental.

Commercial rental" does not include the rental, lease or lending of a lawfully acquiring copy
of a computer programme for non-profit purposes by a non-profit library or non-profit
educational institution.18" Thus, a non-profit library or non-profit educational on which
receives grants from the Government or are exempted from payment of funder the Income-
tax Act, 1961 can rent, lease or lend a lawfully acquired copy of as programme for non-profit
purposes without infringing the economic rights of Copyright owner of such computer
programme. reason of providing rental rights appears to have been to enable the owners of
legitimate copies of the works being rented out and copyright in such works to duplicated in
circumstances beyond the owner's control. Thus, any rental of will amount to an infringement
if done without the licence of the copyright owner, whether or not that computer programme
has already been circulation.

3.4 Performance or communication of work in public

The Copyright Act, 1957 makes it a restricted act to perform the work in public communicate
it to the public.19 "Communication to the public" has discussed with respect to literary,
dramatic, musical and artistic work.

3.5 Making cinematograph film or sound recording of the computer

It is a restricted act to make any cinematograph film or sound recording of the computer
programme without permission of the owner of copyright therein.20

18
Section 2(fa), id.
19
Section 14(a) (iii) and14 (b)(i)
20
Section 14(a)(iv) and 14 (b)(i)

15
3.6 Making adaptation or translation of computer programme

It is the exclusive right of the copyright owner of a computer programme to adaptation or

translation of the computer programme or authorize others to make adaptation or translation.
Further, it is the exclusive right of the owner of the computer programme to do any acts
discussed above in relation to such adaptation or translation.

The expression "translation" normally envisages the conversion of a work from of language
into another, in particular one human language into another. Thus, if level, source code
computer programme is compiled or converted into an object of programme, this will be an
adaptation of the source code programme and therefore restricted act.

4. Artistic work
Section 14 of the Copyright Act, 1957 confers following rights on the owner of copyright in
respect of his artistic work:

(i) to reproduce the work in any material form including (a) the storing of any medium by
electronic or other means; or (b) depiction in three-dimension of a two-dimensional work;
or (c) depiction in two-dimensions of a the dimensional work;

(ii) to communicate the work to the public

(3) to issue copies of the work to the public not being copies already in circulabn

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work; and

(vi) to do in relation to an adaptation of the work any of the acts specified relation to the work
in clauses.

4.1 Right of reproduction

The copyright in an artistic work is infringed by the reproduction of it, or any subs part of it,
in any material form without consent. It is further provided by section this includes the
reproduction of the work in any material form including-(a) the s of it in any medium by
electronic or other means; or (b) depiction in three-dimensional two-dimensional work; or (c)
depiction in two-dimensions of a three dimensional work. Copyright does not subsist right
the plaintiff's labour in putting that idea into practice, there shall in idea. So, if the defendant
copies the plaintiff's idea Copyright not of the plaintiff's copyright. In King Features
Syndicate v. O and M Kleeman, the House of Lords held that where there was substantial
similarity that similarity was prima facie evidence of copying which the party charged might
refute by evidence that, notwithstanding the similarity, there was no copying but independent
creation.21
21
King Features Syndicate v. o & M Kleeman

16
 The issue whether the defendant's work amounts to reproduction of plaintiff's work is and
decided by the court. It is very difficult to lay down a definite test application to determine
whether a work is reproduction of the other work. In Associated application and Electrical
Industries P Lid. v. Sharp Tools, Kalapatti, 22"the court held: One of the surest test to
determine whether or not there has been a violation of the reader, spectator, or the viewer,
after having read or seen both night is to see be clearly of the opinion and get an
unmistakable impression that the work appears to be a copy of the first. In other words,
dealing with the of infringement of copyright of the applicant's work by the respondent's
work, Ac t is to test the appearance of the object and drawing, design, or artistic in question
and by applying the test lay observer test' whether to persons who experts in relation to
objects of that description, the objects appears to be a reproduction. If to the "lay observer it
would not appear to be reproduction, there is no infringement t of the copyright in artistic
work.

It is also an infringement to produce a three-dimensional object from a drawing Including a

diagram, map chart or plan or vice-versa. Therefore, the making of every like machines,
machinery parts etc., which is a three-dimensional form, from the wings of such objects,
which is a two-dimensional form, without the consent of the copyright owner of the drawings
would constitute infringement of the copyright of drawing. Since indirect copying, that is
copying from an intermediate copy will itself constitute infringement of the original, the
copying of any finished article which is made on the basis of copyright drawing will infringe
the copyright in the drawing even though the person may not have seen or be aware of this
original drawing. Thus, manufacturers of spare parts of a machine or article can prevent
others from copying their products provided the drawing of the part or product was original
in the copyright sense. In Leyland v. Armstrong, the House of Lords held that the copyright
in a drawing e Sole purpose was to serve as the blueprint for the construction of a there l
article of purely functional or utilitarian value and with no aesthetic or element was capable
of being infringed by copying of the three dimensional article.23

In John Richard Brady v. Chemical Process Equipments (P) Ltd.," the court while article In
the question of infringement of copyright in the plaintiff's drawings by the object, pointed out
that this was to be tested on the visual appearance of the object and the drawing in question
and applying the test (lay-observer test) whether to persons who are not experts in relation to
objects of that description the object appear to be a reproduction.

Similarly, a drawing made from an object i.e. a reproduction of two-dimensional from a

three-dimensional work, without the consent of copyright owner of the draw will constitute
infringement of the two-dimensional work. The author of an artistic work has the exclusive
right to reproduce the work and it includes its conversion from two dimensional to three
dimensional and vice-versa. This right has been elaborately dealt by the Delhi High Court in
Escorts

22
AIR 1991 Kant 406
23
Three dimensional geometrical shapes such as globes, balls, tubes, squares or cubes or cubes or cuboids etc.

17
Construction Equipment Ltd & Anr v. Action Construction Equipment Pvt Ltd & Anr. The
claim of the plaintiffs was that the defendants’ Pick-N-Carry Hydraulic Self Mobile Cranes is
the three dimensional reproduction of the drawings for which the plaintiffs have copyright
protection. The Court after referring to Section 14(c) observed thus ‘Needless to say
industrial drawings are produced by skilled draughtsman. Some of the drawings incorporate
standard parts such as engine or a gear box in common use, but even in those drawings there
is ample knowledge, labour, judgment and skill. The drawings used in the design of the crane
were reproduction of the original artistic work. Those copies of drawings were, in turn, used
to manufacture parts of the crane. Those parts manufactured are again reproduction of the
original artistic works. A reproduction of an artistic work includes a version produced by
converting the work into three dimensional forms. Such drawings are capable of being
infringed by copying of a three dimensional article.’ Based on the above reasoning, the Court
held that the defendants have violated copyright of the plaintiffs in their industrial drawings
and granted an injunction in favour of the plaintiff. The point of interest is that through this
judgment, the Delhi High Court has, with the help of the Copyright Act, prevented
manufacture of machinery. The object of copyright protection is to protect creativity of the
author and to ensure that no one other than the author commercially exploited this creativity.
It was never within the ambit of copyright law to prevent manufacture of any commodity.
This confusion probably arose due to the literal interpretation followed by the Court without
considering either the intention of the Legislature or the consequences of the decision, in
practical terms.

In Camlin Pt. Lid. V. National Pencil Industries," while reversing the decision. Single judge,
the Division Bench of Delhi High Court held that a mecha reproduced carton by printing
process was capable of being subject matter of copyright.

The Division Bench of Delhi High Court in Microfibres Inc. v. Girdhar & Co. 24 observations
with respect to differences between "artistic works" under Copyright "design" under Designs
Act. It is the exclusive right of the copyright holder of an artistic work to reproduce the work
in any material form. A drawing of a futuristic automobile, which is an original artistic work,
may be reproduced in the dimensional material from using an element, such as a metal sheet.
When the com holder of an original artistic work reproduces the same in another material
form, he nor may not do so by employing an industrial process or means which may be
mechanical or chemical, separate or combined, on an article. If the reproduction of original
artistic work is done by employing an industrial process, on an article, and same results in a
finished article which appeals to the eye as adjudged solely by the then the features of shape,
configuration, pattern, ornament or composition of lines colours applied to the article by the
industrial process constitutes a "design", within meaning of this expression as defined under
the Designs Act. It is not necessary the every case a design has to be preceded by an artistic
work upon which it is founded design may also be applied to an article directly.

If the artistic work such as a painting or drawing has been used as the basis for designing an
industrially produced object for commerce, nevertheless the original painting or drawing
would indeed enjoy full copyright protection, while the result of industrial application of such
24
2009 (40) PTC 519 (Del) (BD).

18
painting, namely, the design used in the industrial production of the ultimate product shall
enjoy lesser period of protection as stipulated under the Designs Act provided it is registered
as a design under the Designs Act.

It is also an infringement of the copyright in an artistic work to publish it whit consent of the
copyright owner. Publishing includes issuing reproduction to the pub According to section3
of the Copyright Act, publication' means making available to the public by issue of copies or
by communicating the work to the pub Communication of the work to public means making
any work available for being or heard or otherwise enjoyed by the public directly or by any
means of display diffusion other than by issuing copies of such work regardless of whether
any meme the public actually sees, hears or otherwise enjoys the work so made available.25

4.2 Resale share right in original copies

Apart from the aforesaid rights which are available to the author of an artistic work section 14
of the Copyright Act, 1957, the author of an original copy of a sculpture or drawing has a
right to share in the resale price of such original copy. 53A provides that in case of resale for
a price exceeding Rs. 10,000/- of the original painting. Sure or drawing. the author of such
work if he was the first owner of rights under section 17 or his legal heirs shall,
notwithstanding any assignment of work, have a right to share in the resale price of such
original copy., however, cease to exist on the expiration of the term of copyright in the work
of author in the resale price shall be fixed by the Appellate Board 1the ell not exceed ten
percent of the resale price.

5. Cinematograph film
Section 14(d) or the Copyright Act, 1957 provides that the owner of cinematograph film has
the exclusive right subject to the provisions of this Act, to do or authorize the doing the any
to the following acts in respect of a work or any substantial part thereof namely.

1. to make a copy of the film, including- (a) a photograph of any image forming thereof;
or (b) storing fit in any medium by electronic or other means;
2. to sell or give on commercial rental of offer for sale or for such rental, any copy of
film; and
3. to communicate the film to the public.26

5.1 Making of copies

The Copyright Act, 1957 provides that the owner of cinematograph film has the exclusive
right to make a copy of the film, including a photograph of any image forming Here of The
exclusive right available to the owner of copyright in cinematograph is to copy the recording
25
Section 2(ff) of the copyright Act, 1957.
26
Section 2(ff), explanation

19
of a particular film. It is, therefore clear that production by another person of the same film
does not constitute infringement of copyright provided that it had not been reproduced by a
process of duplication i.e. by using mechanical contrivance. The expression "to make a copy
of the film' would mean to make a physical copy of the film itself and not another film which
merely resembles the film. The Bombay High Court in Star India Private Limited v. Leo
Burnett (India) Private Limited," Here the plaintiff was the owner of the cinematograph film
titled ‘Kyun Ki Saas Bhi Kabhi Bahu Thi’. The defendants made a commercial film under the
title ‘Kyun Ki Bahu Bhi Kabhi Saas Banegi’ with similar characters being played by the
same artists. The question which came for the consideration before the court was whether the
commercial film made by the defendants is a copy of work of the plaintiff. The Court here
pointed out that the rights guaranteed under Section14 (a) (b) and (c) and that under
Section14 (d) and (e) are of different degree.

The Court observed that, the making of another film is not included under section 14(d)(i)
and such other film, even though it resembles completely the copyrighted film, does not fall
within the expression 'to make a copy of the film'. Therefore, if the film has been filmed or
shot separately by a person and it resembles the earlier him, the subsequent film is not a copy
of the first film and, therefore, does not amount to infringement of whole of the copyright of
the first film. The position in the case of literary, dramatic or artistic work seems to be
different. Narrow copyright protection is accorded to a film/sound recording than for,
dramatic or artistic work. The reason perhaps could be that they have to be original to satisfy
the test of copyright ability, whereas the requirement original is absent for claiming copyright
in cinematograph films / sound recordings.

5.2 Right to the sell or rent

Copyright owner of a cinematograph film has the exclusive right to sell or give on rental or
offer for sale or for such rental any copy of the film. "Commercial does not include the rental,
lease or lending of a lawfully acquired copy film for non-profit purposes by a non-profit
library or non-profit institution. Thus, a non-profit library or non-profit educational which
receives grants from the Government or are exempted the Income-tax Act, 1961 can rent,
lease or lend a lawfully acquired copy Cinematograph film for non-profit purposes without
infringing the economic rights copyright owner of such cinematograph film.

The reason of providing rental rights appears to have been to enable the owner out copyright
in such works to prevent legitimate copies of the works being rental then duplicated in
circumstances beyond the owner's control. Thus, any film will amount to an infringement if
done without the licence copyright owner, whether or not that cinematograph has already
been put circulation.

The intention of legislature seems to facilitate the flow of remuneration to copyright owners
which may be assisted by appropriate collective administration through societies. These
rights will also provide an added safeguard against distributed infringing copies.

20
5.3 Communication of the film to public

The owner of copyright in a film has the exclusive right to communicate the film to public.
"Communication to the public" is defined to mean making any work performance available
for being seen or heard or otherwise enjoyed by the public dire or by any means of display or
diffusion other than by issuing physical copies of whether simultaneously or at places and
times chosen individually, regardless of where any member of the public actually sees, hears
or otherwise enjoys the work performance so made available'.

The infringement of copyright in a film occurs only if the film is communicated to public.
The meaning of 'public" can be gathered from looking at the nature of audience. Where the
members of audience are from the domestic and quasi-domest circle then the communication
is not public. In all other cases, the communication shall be deemed to be in public. The
courts tend to give as wide a meaning to ‘public reasonably possible as a mean of ensuring
that the copyright owner is compensated unlicensed use of his copyright’.27

The definition of "communication to the public" is very comprehensive and removes all
uncertainty in relation to satellite, cable or other means of simultaneous communication to
different households etc. Explanation to section 2(f) which "communication to the public",
provides that 'communication through satellite or cable any other means of simultaneous
communication to more than one household or place of residence including residential rooms
of any hotel or hostel shall be deemed communication to the public’. Further, "broadcast" is
defined under the Copyright, 1957 to mean communication to the public (i) by any means of
wireless Where in any one or more of the forms of signs, sounds or visual images; (ii) by
wire, and includes a re-broadcast.

Super Cassette Industries v. Nirulas Comer House (P) Ltd. 28, the court stated that the
expansive definition under section 2(ff) in that case would mean that broadcast was to the
public. The court held that the plaintiff had been able to show were using cable connection
and extending facilities of television to their patrons in the hotel rooms, and payments were
received. In this view. prima facie, the content of songs and videos broadcast were
communications to the public.

Whether a communication is to the public or whether it is a private communication it depends

essentially on the persons receiving the communication. In Performance Right society Ltd v.
Hawthorns Hotel Ltd.," the performance in the lounge of the hotel was consider as a
performing in public.

27
Section 2(ff)
28
2008(37) PTC 237 (Del).

21
In Earnest Turner Electrical instruments Ltd. v. Performance Right Society. 29" The music was
broadcast to employees during work. Whole holding the performance to be in public, the
court applied the tests, namely-

(1) The character of audience whether it could considered as purely domestic,

(2) Relationship between the owner of the copyright impact of the performance on the value
of copyright or the otherwise have accrued to the owner had the same audience

(3) The fit which would ached the performance on payment.

6. Sound recording
Section 14(e) of the Copyright Act provides that the owner of sound recording has 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 thereof, namely:

(1). to make any other sound recording embodying it including storing of it in any medium
by electronic or other means.

(2). to sell or give on commercial rental or offer for sale or for such rental, any copy of the
sound recording

(3). to communicate the sound recording of the public.

Section 14(a) deals with original work. It is extremely broad. In contrast thereto, the
copyright in films or sound recording work operates in restrictive field; they provide for a
restrictive right as would appear from the provisions contained in section 14(e) of the Act.
However noteworthy that the rights of an owner of a sound recording are, in no way, inferior
to those of an owner of copyright in the original literary or musical work.30

6.1 Making a copying

Making a copy of the sound recording or a substantial part of it, without a licence of the
Owner of copyright is an infringement under the Copyright Act, 1957. The exclusive right
Viable to the owner of copyright in sound recording is to copy the recording of a Particular
sound recording, it is, therefore clear that production by another person of the same sound
recording does not constitute infringement of copyright provided that it had been reproduced
by a process of duplication i.e. by using mechanical contrivance. The expression ‘to make
any other sound recording embodying it’ would mean to make a Physical copy of the sound
recording itself and not any other sound recording which merely resembles the former.

29
(1943) 1 Ch 167
30
Indian performing right society Ltd. V. Aditya Pandey, 2012 (50) PTC 460 (Del).

22
 It is not an infringement of the copyright in sound recording to reproduce the recorded
material in musical notation or other written form, or to produce another record with, for
example different musicians playing the same music.31

6.2 Rental right and communication rights

The rental right and communication right of the owner of sound recording are mutandis the
same as of the owner of cinematograph film.

It is noteworthy that the owner of the copyright is a second recording doen not, by virtue of
the authorisation by the owner of his right to make a sound recording of literary or musical
work, becomes the owner of that underlying literary or musical embodied in that sound
recording. The producer of the sound recording, however, exploit the sound recording
exclusively in the manner provided in section 14(1) can communicate the same to the public
by broadcasting it or playing it in public The owners of the underlying musical and literary
work embodied in such recording cannot interfere with these rights of the owner of the sound
recording qua sound recording.

The right of copyright owner of a sound recording to communicate it to the public only mean
the right to communicate it as a sound recording. It cannot mean the right communicate the
sound recording as a part of, or as embodied in a cinematograph f On the other hand, the right
to utilize the literary, dramatic or musical work to make cinematograph film is specifically
conferred on the copyright owner of literary, drama or musical work by virtue of section
14(a)(iv). The said right being an exclusive n cannot possibly inhere at the same time in two
persons namely the owner of the copyright in the literary, dramatic or musical work and the
owner of the copyright in the sound recording. Therefore, the copyright owner of a sound
recording cannot proceed incorporate the sound recording/version recording in a
cinematograph film without express licence from the owners of the copyright in the literary,
dramatic or musical works from which the sound recording is made.32

Every broadcasting organisation, shop, departmental store, showroom, restaurant, hotel,

club, disco, bars, office establishments, television channels, music co0xef etc. which play
sound recording, impinges on the rights of copyright owner unless they the permission of the
copyright owner or the copyright society, as the case may be.33

31
CBS Records Australia Ltd. V. Telmark Teleproducts (Aust.) pty. Ltd.(1988) 79 A.R.L. 604.
32
GRAMOPHONE Company of India Ltd. V. Super Cassette Industries Ltd. 2010 (44) PTC 541 (Del)
33
Indian performing right society Ltd. V. Krishnamurthy, 2012 (49) PTC 362 (Del)

23
Conclusion
In order to ensure a full and effective participation in public life and to lead a better life
access to information and knowledge is a must. In a welfare State it is the duty of the State to
ensure that there is dissemination of knowledge and information to such an extent that it
benefits all. At the same time it is the duty of the State to protect those intellectual labours
which is the root cause of this information. This balance is being ensured with the help of
copyright law. But we can see that the current Copyright Act is not adequate to deal with the
needs of the changing society. The influence of Internet is rampant and so are the problems it
creates, relating with copyright. The current Act is incompetent to deal with this scenario.
Just because to date no such issue has come before any Indian Court it would be foolish to
believe that it will never come or wait till the date when such issues actually come. Internet
should not be looked upon as a problem creator, instead it must be seen as the most preferred
means for the dissemination of information and rules must be drafted in such a manner so as
not to prejudicially affect free access.

From the cases discussed it can be inferred that the courts have always taken a pro-author
attitude. The courts have in most situations widened the ambit of the rights guaranteed by the
Act and in most cases have gone much beyond the philosophy of copyright protection and
intention of the legislature to grant protection to authors of the work. In certain cases it seems
to be just though in most cases it is not so. The courts while giving most judgments in favour
of authors seems to forget the social implications such judgments can have. The court which
is supposed to strike a balance between the rights of authors and public interest can be seen,
in certain cases, as the cause for upset of the existing balance. The reason for this fluctuating
stand by the judiciary is, for sure, the gaps in the law. It is high time for the legislature to act
and bring in changes to the existing law, especially in the situation of changing technology.
The amendments proposed in 2006 seem to be a positive step bute it is not adequate to deal
with the change

24
 Bibliography
Books
1. P. Narayanan, Law of Copyright and Industrial Designs (4th ed., 2007)
2. V.K. Ahuja, Intellectual Property Rights in India (2009), Butterwort Publication.
3. Alka Chawla, Copyright and Related Rights: National and International Perspectiver.
4. Das, J.K., Intellectual Property Rights, 164 (2nd ed., Kamal Law House, Kolkatta).
5. Narayanan, P., Intellectual Property Law, (3rd ed., Eastern Law House, New Delhi,
1998.

Websites
1. www.legalservicesindia.com
2. www.academia.edu
3. www.unitedipr.com
4. www.saprlaw.com
5. www.indiankanoon.com
6. www.scconline.com

25