Meaning, Object and

UNIT 5 MEANING, OBJECT AND SCOPE OF Scope of Copyright

COPYRIGHT
Structure
5.1 Introduction
Objectives
5.2 Meaning
5.3 Scope
Nature of Protection
An Abstract Idea is Not Protected
5.4 Object
Copyright and Patent Right – Compared
5.5 Summary
5.6 Terminal Questions
5.7 Answers and Hints

5.1 INTRODUCTION
Copyright Act, 1957 embodies the ground rules for copyright administration in India
through amendments introduced from time to time. It broadly conforms to the
provisions of the Berne Convention and the Universal Copyright Convention. In this
Unit, an attempt has been made to condense the relevant information with regard to
the first and the basic post-independence Copyright Act which governs copyright
practices in India today. As such it proceeds to unravel for your information and
understanding the following which are listed as objectives of the Unit.
Objectives
At the end of the unit, you should be in a position to familiarize yourself with the
following:

• evolution of Copyright to its present stage, especially in India;

• scope of the Copyright Act, 1957;
• what all are protected by copyright law in India; and
• why and how copyright is different from patent right.
(wherever necessary (i) references are given below, please find)

5.2 MEANING1
1
Section 14: Meaning of copyright.—

For the purpose of this Act, "copyright" means the exclusive right subject to the provisions of
this Act, to do or authorise the doing of any of the following acts in respect of a work or any
substantial part thereof, namely –
a) in the case of a literary, dramatic or musical work not being a computer programme,--

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 an adaptation of the work, any of the acts specified
in relation to the work in sub-clauses (i) to (vi); 5
The Copyright Act, 1957 The word ‘Copyright’ is derived from the expression ‘copier of words’ first used in
this context, according to Oxford Dictionary, in 1586. The word ‘copy’ is presumed to
date back to circa 1485 AD. It used to connote then a manuscript or other matter
prepared for printing. ‘Copyright’ is a right of ownership i.e. the law as it applies to an
original work, affording protection for the owner who is usually, but not always, the
author or other originator. It includes all the rights conferred by the Copyright Act
upon the owner in respect of his literary, dramatic, musical or artistic work or in
respect of a cinematograph film or record. According to The Union Ministry of
Human Resource Development, Department of Secondary and Higher Education,
Govt. of India “Copyright is a right given by law to the creators of literary, dramatic,
musical and artistic works and the producers of cinematograph films and sound
recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction,
communication to the public, adaptation and translation of the work. There could be
slight variations in the composition of the rights depending on the work.” It is a
statutory right conferred on the author for a certain term to print, publish and sell
copies of his original work and to stop others from copying or exploiting in various
other ways his works without permission. It is in effect a right to prevent the
appropriation of the expressed results of the labour of an author by other persons. In
Collier’s Encyclopedia2, copyright is defined as ‘a privilege or franchise granted by
the government to authors, composers and artists, which entitles them to the exclusive
right of printing or otherwise multiplying, publishing and vending copies of the
copyrighted literary or artistic production. This right is regarded as a ‘natural right’ on
the ground that nothing is more certainly a man’s property than the fruit of his brain.
There are some others who regard it as not a natural right but a right which the State
should confer in order to promote and encourage the labours of authors.3 When a man
by the exertion of his rational powers has produced an original work or intellectual
property, he seems to have clearly a right to dispose of that identical work as he
pleases and any attempt to vary the disposition he has made of it tantamounts to be an
invasion of that right.4

b) in the case of a computer programme,--

i) to do any of the acts specified in clause (a);
ii) to sell or give on hire, or offer for sale or hire any copy of the computer programme,
regardless of whether such copy has been sold or given on hire on earlier occasions;
c) in the case of an artistic work,--
i) to reproduce 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 communicate the work to the public;
iii) to issue copies of the work to the public not being copies already in circulation;
iv) to include the work in any cinematograph film;
v) to make any adaptation of the work;
vi) to do in relation to any adaptation of the work any of the acts specified in relation to
the work in sub-clauses (i) to (iii);
d) in the case of a cinematograph film,--
i) to make a copy of the film including a photograph of any image forming a 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 copy has been sold or given on hire on earlier occasions;
iii) to communicate the sound recording to the public.
2
1956 Ed.
3
Whale on Copyright, IV, 1993 Edn., Sweet & Maxwell, P.1.
4
Blackstone in his Commentaries, Vol.2 at p. 406.
6
Copyright protects literary and artistic works e.g. writings, music, and works of the Meaning, Object and
Scope of Copyright
fine arts, such as paintings and sculptures, and technology-based works such as
computer programmes and electronic databases.
Copyright is important not only to individuals and industries which depend upon it for
their livelihood but it also trespasses one way or the other into the daily life of the
members of public or business.
Copyrights were recognized as far back as the Roman civilization, where a creator of
a manuscript was considered to have rights over his creation. However, the rights only
existed as long as the owner was in possession as the rights were similar to rights over
tangible property.
Copyright law assumed significance with the invention of the printing press. Before
the time of Gutenberg and his printing press, there was no need for copyright laws
because copying was prohibitively difficult and, without practical means of mass
production, there was no economic interest which might have encouraged legal
protection. Furthermore, literature was held to be part of a common fund of
knowledge.
After the introduction of the printing press in England in 1476, but before the
enactment of the Statute of Anne, the first "modern" Anglo-Saxon copyright law in
1709, licensing acts performed the function of copyright law. These licensing acts
served as a form of political censorship and trade regulation. It is notable that the
monarchy used a guild, a medieval economic institution as an instrument, to censor
the heresy and sedition made possible by the printing press. Governments rapidly saw
both the political and economic implications of an information explosion widely
feared after the advent of the printing press.
Until then, it was difficult to make copies and also easy to identify the person who
copied or plagiarized any original work. The first Copyright Act was enacted in 1710
in England known as the Statute of Anne. After the Statute of Anne, copyright law
became less a tool of the State and more a tool of authors and publishers. Such a
development reflected both an increasing respect for the rights of the authors as well
as the growing economic opportunity of authors' creations.
The Berne Convention (1886) is the oldest international convention governing
copyright. It states that “the expression 'literary and artistic works' shall include every
production in the literary, scientific and artistic domain, whatever may be the mode or
form of its expression, such as books, pamphlets and other writings; lectures,
addresses, sermons and other works of the same nature; dramatic or dramatico-
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; 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, topography, architecture or science5 … Translations,
adaptations, arrangements of music and other alterations of a literary or artistic work
shall be protected as original works without prejudice to the copyright in the original
work … Collections of 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.
Thereafter, countries around the world introduced similar statutes to protect copyright.
The present Indian Copyright Act was enacted in 1957 and was further amended on

5
Article 2. 7
The Copyright Act, 1957 several occasions in 1983, 1984, 1992, 1994 and 1999 in deference to India’s
international endorsements of its commitments and obligations.
Copyright is created by statute and has both positive and negative rights. Positive
rights give the owner of the Copyright, the rights to reproduce or make copies, make
derivative works etc while negative rights give the right to prevent others form
copying, distributing or selling the original work.6

5.3 SCOPE
Section 14 of the Copyright Act, 1957 defines the term ‘copyright’ to mean an
exclusive right to do or authorize others to do certain acts in relation to:
i) Literary works, i.e. any work written or printed in any language e.g. novels,
poetry, history or books or any written subject whatsoever. It also includes
computer programmes, tables, and compilations including computer databases.
Copyright subsists in the original adaptation of another literary work, because the
adaptation may be itself a literary work. Adaptation in relation to literary work
means the conversion of the work into a dramatic work by way of performance in
the public or otherwise, any abridgement of the work etc.7
ii) Dramatic works, i.e. any piece of recitation, choreographic work, or entertainment
in a dumb show, the scenic arrangement or acting form of which is fixed in
writing or otherwise, but does not include a cinematograph film.8
iii) Musical works, i.e. a work consisting of music and includes any graphical
notation of such work, but does not include any words or any action, intended to
be sung, spoken or performed with the music.9 The author of a musical work is
composer and not the singer.
In the case of a literary, dramatic or musical work, copyright means to do and
authorize the doing of any of the following acts, namely:-
a) to reproduce the work in any material form;
b) to publish the work;
c) to perform the work in public;
d) to produce, reproduce, perform or publish any translation of the work;
e) to communicate the work by radio-diffusion or to communicate to the public
by a loud-speaker or any other similar instrument the radio-diffusion of the
work;
f) to make any adaptation of the work;
g) to do in relation to a translation or an adaptation of the work any of the acts
specified in relation to the work specified above.
iv) Artistic works, i.e.
a) a painting, a sculpture, a drawing (including a diagram, map, chart or plan),
an engraving or a photograph, whether or not any such work possesses artistic
quality,
b) a work of architecture, and
c) any other work of artistic craftsmanship.10
Essentially artistic copyright is concerned with visual image.

6
http://www.asianlaws.org/projects/copyright_issues.htm
7
Section 2(a).
8
Section 2(h).
9
Section 2(p).
10
8 Section 2(c).
 In the case of an artistic work, copyright means to do or authorize the doing of Meaning, Object and
Scope of Copyright
any of the following acts, namely:-

• to reproduce the work in any material form;

• to publish the work;
• to include the work in any cinematograph film;
• to make any adaptation of the work;
• to do in relation to an adaptation of the work any of the acts specified in
relation to the work specified above.
v) Cinematograph film, i.e. any work of visual recording or any other medium
through a process from which a moving image may be produced by any means
and includes a sound recording accompanying such visual recording and
cinematography shall be construed as including any work produced by any
process analogous to cinematography including video films.11 The author in this
case is the producer.
In the case of a cinematograph film, copyright means to do or authorize the doing
of any of the following acts, namely:-

• to make a copy of the film;

• to cause the film, in so far as it consists of visual images, to be seen in public
and, in so far as it consists of sounds, to be heard in public;
• to make any record embodying the recording in any part of the sound track
associated with the film by utilizing such sound track;
• to communicate the film by radio-diffusion.
vi) Sound recording i.e. copyright in a sound recording is separate from the copyright
in any work from which or from a substantial part of which the sound recording is
made. The former will not affect the latter.
In the case of a record, copyright means to do or authorize the doing of any of the
following acts by utilizing the record, namely:-

• to make any other record embodying the same recording;

• to cause the recording embodied in the record to be heard in public;
• to communicate the recording embodied in the record by radio-diffusion.

SAQ 1 Spend "

3 min.
a) Define Copyright in terms of the Copyright Act, 1957.
b) What does copyright mean in the context of cinematograph film?

5.3.1 Nature of Protection

The exclusive right for doing the above mentioned acts extends not only to whole of
the work but to any substantial part thereof or to any translation or adaptation thereof.
Owning the copyright in any of the above works gives the owner the exclusive right to
(a) copy the work; (b) issue copies to the public; (c) perform, show or play the work in
public; (d) broadcast the work or include it in a cable programme service; and
(e) make adaptation of the work or do any of the above in relation to an adaptation.
Anyone who, without the consent of the copyright owner, does any of the above acts
infringes the owner's copyright.
It is important to bear in mind the nature of things protected by the copyright law.
What the law protects is not the original idea, but the original expression of idea in
some concrete form. What is expected out of defendant is that he should not use the
same form in which plaintiff has expressed his idea. He is, however, at a liberty to
11
Section 2 (f). 9
The Copyright Act, 1957 pick the idea from plaintiff’s work and appropriate to his use by expressing it in some
other form. In other words, the plot of a story or a play is an idea which is not
protected, what is protected is the final play or the story that comes into existence as a
work of a playwright or an author. Copyright is a right given to or derived from
works, and it is not a right in novelty of ideas.
An important feature of Article 2 of the Berne Convention is that it protects what is
commonly called "derivative works". These are works that are derived from other,
existing sources. E.g. translations of works into a different language; adaptations of
works, such as making a film scenario based on a novel; arrangements of music, such
as an orchestra version of a musical composition initially written for piano; other
alterations of works, for example an abridgement of a novel; compilations of literary
and artistic works, such as encyclopedias and anthologies. In such a case, the
originality resides in the choice and arrangement of the materials.
Before embarking on a derivative work, the rights of the author of the initial work
must be respected. For example, an author who wishes to translate a novel into a
foreign language should seek proper authorization from the author of the novel that
will be translated. Making the translation without proper authorization would expose
the translator to the risk of being sued for copyright violation.
Copyright is based on right of an author; artist or composer to prevent any other
person from copying an original work, whether it is a book, tune or picture, which he
himself has created. Hence, it is a negative right which prevents others from copying
or reproducing the work. Moreover, the expression ‘copyright’ in the Act connotes an
exhaustive definition of copyright and therefore it does not extend to any other right
outside the ambit of Section 14.
Under the present law, copyright is a creation of the statute12 i.e. no copyright exists in
any other work except as provided in the Act.

5.3.2 An Abstract Idea is Not Protected

Copyright is an incorporeal property. In the field of literary work, the words chosen
by the author to express his ideas are peculiar to himself and no two descriptions of
the same idea or fact will be in the same words, just as no answers to the same
question will be the same. The order and arrangement of each man’s words is as
singular as his countenance. Just as when two authors composed originally in the
same order of words each would have a property in the composition, similarly
probability of such an occurrence of originally composing would be less than there
should be two countenances that could not be discriminated.13 As stated earlier, thus,
an abstract idea is not protected, but what is protected is the material form in which
ideas are translated and expressed. A person may have a brilliant idea for a story or
play, but it is the production which is the result of the communication of the idea is
the copyright of the person who has clothed the idea in form (whether by means of a
picture or a play) and the owner of the idea has no rights in that product.14 Fazal Ali, J.
laid down the following propositions in R.G. Anand v. Delux Films15, where a
playwright writer and producer of the play ‘Hum Hindustani’ narrated the play to the
defendant who made a picture ‘New Delhi’ which was alleged to be based on the
same play:
i) There can be no copyright in an idea, subject matter, themes, plots or
historical/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

12
Section 16
13
Jeffreys v. Boosey (1854) 4 HLC 815.
14
Donoghue v. Allied Newspapers Ltd. (1937) 3 All ER 503.
15
10 AIR 1978 SC 1613
 the copyrighted work. What is protected is not the original thought or information Meaning, Object and
Scope of Copyright
but the original expression of thought or information in some concrete form.
ii) Where the same idea is being developed in a different manner, it is manifest that
the source being common, similarities are bound to occur. But if the defendant’s
work is nothing but a literal (colourable) imitation of the copyrighted work with
some variations here and there, it would amount to violation of copyright. Thus
the copy must be substantial and material one. “A copy is that which comes so
near to the original as to give to every person seeing it the idea created by the
original”. This is a sure and safe test to determine the violation of a copyright.
iii) 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.
iv) 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 coincidences appearing in the two works are clearly incidental, no
infringement of the copyright occurs.
v) 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.
vi) Where, however, the question is of the violation of the copyright of a ‘stage play’
by a film producer/director, the task of the plaintiff i.e. the playwright becomes
more difficult to prove piracy. It is clear that unlike stage play, a film has much
broader perspective, wider field and bigger background where the defendants can
by introducing a variety of incidents give a colour and complexion different from
the manner in which the copyrighted work has expressed the idea. Even so, if the
viewer after seeing the film gets a totality of impression that a film is by and large
a copy of the original play, violation of copyright may be said to be proved.
vii) It is obvious that the underlying emotions reflected by the principal characters in a
play or a book may be similar and yet that the characters and expression of the
same emotions be different. That the same emotions are found in plays would not
be sufficient alone to prove infringement but if similar emotions are portrayed by
a sequence of events presented in a like manner, expression and form then
infringement would be apparent.
In the above mentioned case, the film portrayed three themes:
a) role of provincialism with regard to marriage and renting out accommodation,
b) evils of caste ridden society, and
c) evils of dowry.
The last two aspects do not appear at all in the plaintiff’s play. They are integral part
of the story of the film and cannot be separated without affecting the beauty and
continuity of the film. Further, the story treatment was held to be different in the film
as in the play. At the most, the central idea of the play i.e. provincialism is
undoubtedly subject matter of the film, but it cannot be the subject matter of a
copyright being a mere idea. Thus it was held that the film was not a substantial or
material copy of the play.

SAQ 2 Spend "

3 min.
a) What principles have been laid down in the case R.G. Anand v. Delux Films for
protection of copyright?
b) Write a note on ‘Derivative Works’ and how they are protected?

11
The Copyright Act, 1957
5.4 OBJECT
The scope of copyright is determined by the nature of things protected. The Copyright
Act, 1957 protects original literary, dramatic, musical and artistic works and
cinematograph films and sound recordings from unauthorized uses. Unlike the case
with patents, copyright protects the expressions and not the ideas. There is no
copyright in an idea. Thus, the author or composer of a lyric or musical work who has
authorized a cinematograph film producer to make a cinematograph film of his work
has thereby permitted him to appropriate his work by incorporating or recording it on
the sound track of a cinematograph film cannot restrain the author of the film from
causing acoustic portion of the film to be performed or projected in public for profit.16
Copyright ensures certain minimum safeguards of the rights of authors over their
creations, thereby protecting and rewarding creativity. Creativity being the keystone
of progress, no civilized society can afford to ignore the basic requirement of
encouraging the same. Economic and social development of a society is dependent on
creativity. The protection provided by copyright to the efforts of writers, artists,
designers, dramatists, musicians, architects and producers of sound recordings,
cinematograph films and computer software, creates an atmosphere conducive to
creativity, which induces them to create more and motivates others to create.17
“Take away from English authors their copyright and you would very soon
take away from England her authors” – Anthony Trollope
The object of copyright law is to protect the author of the copyright work from an
unlawful reproduction or exploitation of his work by others and to encourage the
authors, composers and artists to come out with original works by rewarding them
with the exclusive right for a limited period to reproduce the works for the benefit of
the public. Copyright protection finds its justification in ‘fair play’. A person works
and produces something. The fruit and product of his skill and labour ought to belong
to him. The moral basis for protection under copyright law is Thou shall not steal. The
law does not allow one to appropriate what has been produced by the other by toil of
another’s intellect. This is the very foundation and philosophy of the copyright law.
Once the term of copyright expires, the work belongs to public domain and anyone
may reproduce without permission.

5.4.1 Copyright and Patent Right – Compared

Copyright like a patent right, is a monopoly restraining the public from doing which,
apart from the monopoly, it would be perfectly lawful for them to do. The monopoly
itself is right and just, and is granted for the purpose of preventing others from
unfairly availing themselves of the work of others, whether that work is scientific,
literary or artistic. The protection of authors whether inventions, works of art, or of
literary compositions, is the object attained by all patent and copyright laws. The Acts
are construed with reference to this purpose. On the other hand, sufficient care must
be exercised not to allow them to be made the instruments of oppression and
extortion.18
Monopoly, however, is not a suitable word to describe the rights conferred by
copyright. It is more apposite for patents, designs and trademarks where rights can be
acquired by registration as opposed to copyright where the right subsists
automatically. Monopoly arises only if a person enjoys a right in some product of his
skill and labour which entitles him to stop another from making the same or a similar
16
Indian Performing Rights Society v. Eastern India Motion Pictures Association AIR 1977
SC 1443: (1977) 2 SCC 820.
17
A Hand Book Of Copyright Law, Government of India, Ministry of Human Resource
Development Department of Secondary Education and Higher Education.
18
P. Narayanam’s Law of Copyright an Industrial Designs, 3rd ed., Eastern Law House,2002,
12 p.3.
product even if it is made wholly independently and without any copying. It may be Meaning, Object and
Scope of Copyright
observed here that owner of copyright in a work cannot prevent another person who
has independently created similar work from acquiring copyright for his work. This is
not the case with Patents or Trade Mark rights. Copyrights operate only against
unauthorized copying, the embezzlement of another’s creation, without authorization
and without imbursement for the same. Nevertheless, the exclusive right extended to
copyright owners has monopolistic advantages.
Copyright Protection is not granted where the work is grossly immoral, illegal,
defamatory, blasphemous, seditious, irreligious or contrary to public policy or
calculated to deceive the public.19
Thus, the copyright law seeks to establish a delicate equilibrium. On the one hand, it
affords protection to authors as an incentive to create, and, on the other, it must
appropriately limit the extent of that protection so as to avoid the effects of
monopolistic stagnation.

5.5 SUMMARY
• Copyright means the exclusive right, subject to the provisions of law, to do or
authorize the doing of various acts related to the use of original literary, dramatic,
musical and artistic works, cinematographic films and sound recordings, of the
creators of such works.

• The Berne Convention (1886) is the oldest International Convention governing

Copyright.

• Codified Copyright law came into existence in India during British rule with the
Act of 1914. After Independence the Copyright Act of 1957 came into force with
subsequent amendments in 1983, 1984, 1994 and 1999.

• The Copyright Act, 1957 protects original literary, dramatic, musical & artistic
works, cinematographic films and sound recordings from unauthorized uses. It
protects tangible expressions of ideas and not ideas themselves.

5.6 TERMINAL QUESTIONS Spend 10 min.

1. Define Copyright with reference to Section 14 of the Copyright Act, 1957 and
court decisions. Also give examples of the types of works that are covered by
copyright. (250-500 words)
2. “An abstract idea is not protected, but what is protected is the material form in
which ideas are translated and expressed”. Elucidate.

5.7 ANSWERS AND HINTS

Self Assessment Questions
1. Refer to text.
2. Refer to text.
Terminal Questions
1. Refer to text.
2. Refer to text.

19
Hyde Park Recidence Ltd. v. Yelland [2000] RPC 604. 13