India 507

India

Mishi Choudhary*

1. To what extent does national law differentiate in terms of the effects

of copyright law?
a) According to the various work categories
According to Section 13 of the Indian Copyright Act of 1957 (ICA), copyright sub-
sists in the following classes of works:
a) original literary, dramatic, musical and artistic works
b) cinematographic films and
c) sound recordings.
Painting, sculpture, drawing, photography and works of architecture are considered
as artistic works (Sec. 2(c) ICA).
Computer programs, tables and compilations including computer databases are
considered as literary works (Sec. 2(o) ICA). In the case of offences under the Act,
a special provision is made for computer programs whereby knowing use of an
infringing copy of a computer program is an offence (Sec. 63B ICA).
Related rights are provided in the case of performers and broadcasting organisa-
tions.
In the Act, no provision has been made differentiating the effect of copyright
based on the nature of a literary work, e.g., whether academic or fictional. But spe-
cial provision has been made in the exception clauses concerning infringement in the
case of copyright in lectures and articles on current economic, political, social or
religious topics. As per the Act, a reproduction in a newspaper, magazine or other
periodical of an article on current economic, political, social or religious topics is not
an infringement of copyright, unless the author has expressly reserved to himself the
right of such reproduction (Sec. 52(1)(m) ICA). Also, a publication in a newspaper,
magazine or other periodical of a report of a lecture delivered in public is not an
infringement of copyright (Sec. 52(1)(n) ICA).
Section 15 of the Act contains provisions regarding copyright in designs regis-
tered or capable of being registered under the Designs Act, 1911 (Sec. 15 ICA). As
per Section 15, Copyright does not subsist under this Act in any design which is reg-
istered under the Designs Act, 1911, and copyright in any design capable of being
registered under the Designs Act, 1911, but which has not been so registered, ceases

*
Mishi Choudhary, Software Freedom Law Center, Director of International Programs,
mishi@softwarefreedom.org.
The Indian Copyright Law is available at http://copyright.gov.in/Documents/CopyrightRules
1957.pdf and http://copyright.gov.in/Documents/CopyrightRules1958.pdf.

R.M. Hilty and S. Nérisson (eds.), Balancing Copyright - A Survey of National Approaches, 507
MPI Studies on Intellectual Property and Competition Law 18, DOI 10.1007/978-3-642-29596-6_19,
© Springer-Verlag Berlin Heidelberg 2012
508 Mishi Choudhary

as soon as any article to which the design has been applied has been reproduced more
than fifty times by an industrial process by the owner of the copyright or, with his
licence, by any other person.
Interpreting this Section, in Microfibres Inc.v.Girdhar and Co. and Anr.,1 the
High Court of Delhi held that the legislative intent was to grant a higher protection
to pure original artistic works such as paintings, sculptures etc. and lesser protection
to design activity, which is commercial in nature. The legislative intent is, thus, clear
that the protection accorded to a work that is commercial in nature is lesser than and
not to be equated with the protection granted to a work of pure art.
Special provisions have also been made for works of the government, public
undertakings and international organisations regarding the period of protection
under Sections 27 to 29 and fair-use provisions under Section 52 of the Act.

b) According to factual aspects, e.g. different markets, competitive conditions;

other factual aspects; c) According to other criteria
Under the Act, the author of a literary, dramatic or musical work is the first owner of
the copyright in that work. But in the case of a work made in the course of employ-
ment for the proprietor of a newspaper, magazine or periodical under a contract of
service or apprenticeship the proprietor is considered to be the owner so far as the
copyright relates to the publication of the work in any newspaper, magazine or sim-
ilar periodical, or to the reproduction of the work for the purpose of its being so pub-
lished. The proprietor is considered to be the owner in this case when there is no
agreement to the contrary. In all other respects the author is the first owner of the
copyright in the work. In the case of a photograph taken, or a painting or portrait
drawn, or an engraving or a cinematographic film made, for valuable consideration
at the instance of any person, such person is, in the absence of any agreement to the
contrary, deemed the first owner of the copyright. In the case of employment under
a contract of service, the employer is deemed the first owner of copyright, in the
absence of any contrary agreement (Sec. 17 ICA).
A person has an inherent copyright in an original composition or compilation
without the necessity of its registratio2n. Registration of the work under the Act is
neither compulsory and nor a condition precedent for maintaining a suit for damages
for infringement of copyright.
According to Section 44 of the Act Registration is not a condition precedent for
availing the remedy, such as suing for an injunction restraining infringement of the
right or for damages and for accounting. Provision for registration under Section 44
is only intended to provide for prima facie proof of the particulars regarding the right
as stated in Section 48.3

1
MIPR2009 (2)229: 2009 (40)PTC519 (Del).
2
Satsang and Anr. v. Kiron Chandra Mukhopadhyay and Ors MANU/WB/0114/1972:
AIR1972Cal533.
3
Nav Sahitya Prakash and Ors. v. Anand Kumar and Ors. MANU/UP/0177/1981:
AIR1981All200. Para. 33, Delhi High Court order of 28 November 2008 in Rajesh Masrani v.
Tahilaiani Design Pvt Ltd, File No. CIC/LS/A/2009/000987 of 18 March 2010, para. 14.