What is copyright

 Copyright is a kind of intellectual property the importance of which has increased enormously due to
technological development
 Copyright is a multiple right consisting of a bundle of existing rights.
 Copyright means the exclusive right to do or authorise others to do certain acts in relation to
1. Original, literary, dramatic, musical and artistic works
2. Cinematograph films
3. Sound recordings
 The various acts for which copyrights extends is listed in S. 14 of the Act.
 Copyright does not extend to any right beyond the scope of S. 14.

Object of Copyright

1. To encourage authors, composers, artists, and designer to create original work by rewarding them
with the exclusive right for a limited period to exploit the work for monetary gain
2. To protect the writer or creator of the original work from unauthorised reproduction or exploitation
of his materials

History

 Copyright law in India is on close parallels with the British copyright law.
 In old times, copying of manuscripts was a very slow process. It was done mainly by monks and was
limited to copying of religious orders and royal courts of Europe.
 Need for protection arose with the advent of printing press.
 Republic of Venice was the first to grant privilege to print books.
 First modern copyright was the Statute of Anne (passed in 1709, took effect in 1710) – it introduced the
concept of the author of a work being the owner of its copyright for the very first time and laid down
fixed terms of protection.
 Then gradually other countries also enacted similar legislations.
 In India  the first ever enactment was in 1847 during the regime of the East India Company.
 Then Copyright Act, 1914 was enacted which extended most portions of the UK Copyright Act, 1911 to
India. Later, the 1957 Act was brought into force and was amended many times.

Basic Principles

Idea versus Expression

 Law does not recognise property rights in ideas but only on the expression of the same in a particular
manner adopted by the author. There is no copyright for ideas, schemes, systems or method.
 Shipman v. Radio Pictures Inc.
- Held: Idea cannot subject to copyright
- Court concluded that the determining factor was the idea or impression conveyed to the audience
- The modern law of copyright cases stands on this case. It is now held that ideas are not copyrightable
but the sequence of events is. Only creative expression of ideas and facts is protected
 R. G. Anand v. Deluxe Films
- Question regarding copyright in ideas
- plaintiff wrote the play Ham Hindustani and it became very popular. Defendant Mohan Sehgal sent a
letter to the plaintiff saying that he wished to make a movie based on the play. They met and
discussed the entire play. However, there was no further communication made post this discussion.
- The defendant then made a film called New Delhi and the plaintiff was of the opinion that it is based
on the story of his play. So he filed a suit against the defendant for permanent injunction and
damages.
- The basic similarities were the two aspects of provincialism, i.e. the role of provincialism with regard
to marriage, evils of caste ridden society, etc.
- Court said: numbers of similarities by themselves are not sufficient to raise an interference of
colourable imitation. The similarities are trivial and not substantial in nature. Central idea of the play
(provincialism) is the subject matter of the film along with other ideas as well.
- Held: idea cannot be subject matter of copyright

Then there are a series of cases which say the same thing that ideas are not copyrightable.

 Kenrick & Co. v. Lawrence and Co.

- Plaintiff conceived the idea of printing and publishing cards bearing a representation of a hand
holding a pencil in the act of completing a cross within the square (this was for illiterate voters). The
defendant also published similar cards with a hand holding a pencil, in the act of completing a cross
in a particular square, but the hand in defendant’s card was in a slightly different position.
- Court held – Ideas, however original, are not protected under Copyright Act. Here, a very simple
diagram embodies an original idea and it is the diagram and not the idea which is protected.

 General plot ideas are not protected by copyright law and remain forever the common property of
artistic mankind.
 Berkic v. Crichton  protectable expression includes specific details of an author’s rendering of ideas,
or the actual concrete elements that make up the total sequence of events and relationships between the
major characters.

 A work in public domain cannot be copyrighted.

Country Kids ‘N City Slicks Inc. v. Sheen
- Question was: whether a doll design which was made out of wood and which had borrowed features
from paper dolls could claim copyright infringement against defendant who made similar dolls.
- Held: doll design could not be copyrighted because it was characterised by typical paper doll features
that are found in the public domain.

 An idea, principle, theme, or subject-matter, or historical or legendary facts being common

property cannot be subject-matter of copyright of a particular person.
A. Balakrishnan v. Kanagavel Kamaraj
- Held – grandson of a deceased politician not entitled to prevent making of a film of the leader on the
premise that he was not a custodian of history

 Baker v. Selden – leading US Supreme Court case explaining the idea-expression dichotomy

Plaintiff (Selden) obtained copyright in the book that explained a particular system of bookkeeping. The
Defendant used a similar plan but makes different arrangement of the columns and uses different
headings for the columns. The lower court held in Selden’s favour and the Defendant appealed.

Issue:
(1) Did Defendant infringe the copyright? (2) Did Selden’s copyright extend to the right to make and
use the accounts books so described in the copyrighted book

Held:
(1) No (2) No

Reason:
Any author may explain the truths of a science or the methods of an art that are the property of the entire
world and get a copyright in the work. But that copyright does not extend to the method or use of the
system described. A system is simply not subject to copyright protection. To protect a system, the
 author would have to apply for a patent and meet the patent requirements. Awarding protection on the
basis of the copyright in the book would be a fraud on the public.
 The description of the art in a book, though entitled to the benefit of copyright, lays no foundation
for an exclusive claim to the art itself.

 Institute for Inner Studies v. Charlotte Anderson

- Plaintiff claimed copyright protection in the manner of performing certain Asanas of Yoga or
Modern Pranic Healing as the plaintiff termed it in the books published by them.
- Court rejected for the copyright protection
- Held:
When protection of copyright is sought for books and literature describing useful art, principle,
historical fact or events or mode of performing ancient exercise, the copyright shall vest in the
language employed to describe the art in the book and the selection and arrangement of the facts in
the book. The reproduction rights will only be with the author or persons deriving title from him.
However, protection shall not be extended to monopoly right to the art or technique itself which
is available in the public domain from time immemorial.

 Baigent & Leigh v. Random House Group Ltd.

- Plaintiff alleged copyright infringement against Dan Brown in his book Da Vinci Code. It was
alleged that the book contained certain portion of historical research done by the plaintiff and the
facts narrated by the defendant in his book were a reproduction of the expression of an idea created
by the plaintiff in his literature.
- Court of Appeal: did not accept the argument
- Held – original expression does not extend to clothing information, facts, ideas, theories and
themes so as to enable claimants to monopolize historical research of knowledge and prevent the
legitimate use of historical and bibliographical material, theories propounded, general arguments
deployed and general hypotheses suggested.

 The sine qua non of copyright is originality. In other words, to qualify for copyright protection, a work
must be original to the author.
 In two decisions from 19th century – The Trade Mark cases (United States v. Steffens) and Burrow Guiles
(Burrow Guiles Lithographic Co. v. Sarony), the Court defined “authors” and “writings”. These terms
presuppose a degree of originality.
“author” – he to whom anything owes its origin; originator; maker
 All facts – scientific, historical, bibliographical, and the news of the day } these may not be copyrighted
and are part of the public domain available to every person

Doctrine of Merger

 According to this doctrine, where the idea and expression are intrinsically connected, and the expression
is indistinguishable from the idea, copyright protection cannot be granted.
 Applying this doctrine, courts have refused to protect the expression of an idea that can only be
expressed in one manner or a very restricted manner, because doing so would confer monopoly on the
idea itself.
Granting copyright protection to the sole method of expression or limited way of expression of an idea
would mean no one can practice the idea or procedure expressed without being guilty off copyright
infringement.
 Herbert Rosenthal Jewellery Corpn. v. Kalpakin
- Plaintiffs sued the defendants asking them to refrain from manufacturing bee shaped jewels
- Held – bee shaped jewel was an idea that anyone was free to copy, the expression of which was
possible in a very few ways. Hence, no copyright protection for the same.

Originality

Meaning

 Law does not protect every expression but only to the ones that are original
 According to Section 13 of the Copyright Act, 1957 only original literary, artistic, dramatic and musical
works are subject matter of copyright.
 Copyright Acts are not concerned with the originality of ideas, but with expression of thoughts; in case
of literary work, with the expression of thought.
 The Act does not require that the expression must be in an original or novel form, but that it must not be
copied from another work – that it should originate from the author.
 Commonplace matter put together or arranged without exercise of more than negligible work and skill in
making the selection will not be entitled to copyright.
 Work in the nature of compilation: In order to decide whether a work in the nature of compilation is
original, it is wrong to consider the individual parts of it apart from the whole. The courts have looked to
see whether the compilation of the unoriginal material called for work or skill or expense. If it did, then
it is entitled to be considered original. In each case, it is a question of degree whether the skill or labour
involved in the compilation is sufficient to warrant a claim of originality in a compilation.
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.
- Concept of originality was considered on the basis of skill, judgment and labour in the context of
compilation.
 - Respondents were well known bookmarkers and made betting coupons in a certain general form. The
respondent’s coupon contained 16 lists, each with an appropriate name. The appellants were also
bookmarkers and started sending out coupons closely resembling the respondent’s coupons
containing 15 lists.
- Respondent’s coupon was a compilation and so an original literary work and hence the subject of
copyright. The appellants had reproduced a substantial part of it and so the action succeeded.
- In deciding whether there is a breach of copyright one should first decide whether the plaintiff’s
work as a whole is entitled to copyright, and then see whether the part taken is a substantial part.
 University of London Press Ltd. v. University Tutorial Press Ltd.
- Certain persons were appointed as examiners for matriculation examination of the University of
London on a condition that any copyright in the examination papers should belong to the university.
- University assigned copyright to the plaintiff company. After the examination, the defendant
company brought out a publication containing a number of examination papers, including three
which had been set by two examiners appointed by the university.
- Plaintiff Company brought a case of copyright infringement and argued that that since the setting of
papers entailed exercise of brainwork, memory and trained judgement and even selection of
paragraphs from other author’s work involved careful consideration and hence constituted original
literary work.
- Defendants claimed that what they had done was fair dealing for the purposes of private study which
was permissible under the law.
- Held – the term ‘original’ under the Act does not imply original or novel form of ideas or inventive
thought, but the work, must not be copied from another work – that it should originate from the
author.
 A work may be protected by copyright even though it is based on something already existing in the
public domain, if the author, through his skill and effort, has contributed a distinguishable variation from
the older works.
 Agarwala Publishing House v. Board of High School and Intermediate Education
- Question: whether the question papers are original literary work and come within the purview of
Section 13 of the Copyright Act, 1957
- Held – the original literary works referred to under S. 13 are not confined to the works of literature as
commonly understood. It would include all works expressed in writing, whether they have any
literary merits or not. Term “original” used in Section 13 does not imply any originality of ideas but
merely means that the work in question should not be copied from some other but should originate in
the author, being the product of his labour and skill.
 Story J brought out distinction between something which is in public domain and copyrighted work as
follows: (Emerson v. Davies)
 1. Any new and original plan, arrangement or combination of material will entitle the author to
copyright therein, whether the materials themselves be old or new.
2. Whosoever by his own skill, labour and judgement writes a new work may have a copyright therein,,
unless it be directly copied or evasively imitated from another’s work
3. To constitute piracy of a copyright, it must be shown that the original work has either been
substantially copied or be so imitated as to be a mere evasion of a copyright.

From the Sweat of Brow Doctrine to Modicum of Creativity

 Sweat of the Brow Doctrine

- This doctrine conferred copyrights on works merely because time, energy, skill and labour was
expended
- It was formulated in University of London Press Ltd. v. University Tutorial Press Ltd. to scrutinise
whether a work was original or not.
- In this case the court emphasised that the aesthetic content of the work, or its artistic appeal was
irrelevant, so long as the author was able to show that some effort has been put in to create it.
- The underlying notion was that copyright was a reward for the hard work that went into compiling
facts.
 Modicum of Creativity
- Content of what is meant by originality has undergone a paradigm shift from the days of the sweat of
the brow doctrine to the Modicum of Creativity doctrine laid down in Feist Publications Inc. v.
Rural Telephone Service Co. Ltd.
o The Court had to consider the extent of copyright protection available to telephone directory
white pages.
o Court concluded that the names, towns and telephone numbers copied by the Fiest were not
original to Rural and were hence not protected by the copyright in Rural’s combined white
and yellow pages directory
 Flaws of sweat of brow doctrine:
- It extended copyright protection in a compilation beyond selection and arrangement – the compiler’s
original contributions – to facts themselves
- Only defence to infringement was – independent creation
- Subsequent compiler was not entitled to take one word of information which was previously
published and he had to independently work out the matter by himself in order to arrive at the same
result from the common sources of information. This doctrine thus eschewed the most fundamental
axiom of copyright law – that no one may copyright facts or ideas
 The sweat of brow approach was later discarded by the US and Canadian Supreme Courts
 This shift was recognized by Indian Supreme Court in: Eastern Book Co. v. D.B. Modak
 - The appellants in the present case are involved in printing and publishing of law report known as
“Supreme Court Cases” in which they publish all reported and unreported judgments of Supreme
Court of India.
- They make various changes in the original judgments and make it user friendly by adding many
important things that make it clearer.
- Respondent 1, brought out a software called “Grand Jurix” published on CD-ROMs and Respondent
2, brought out software package called “The Laws” published on CD-ROMs.
- As per Appellants the all the modules in the respondents software packages were lifted verbatim
from the appellants work. The respondents had copied the appellants’ sequencing, selection and
arrangements of cases coupled with the entire text of copied edited judgment as published in the
appellants’ law report along with the style and formatting, the copy editing, paragraph numbers,
footnote numbers, cross-referencing, etc.
- Held – collection of material and addition of inputs in the raw text ordinarily does not give the work
a flavour of minimal requirement of creativity, as skill and judgment required to produce the work
are trivial. To establish copyright, the creativity standard applied is not that something must be novel
or non-obvious, but some amount of creativity in the work to claim copyright is required.
- Court held that in these inputs of the publisher of SCC had a copyright and nobody was permitted to
utilise the same.

Fixation

 Copyright law shall apply only when the work has been recorded or fixed in a tangible medium.
 Thinking of a poem or humming a tune – not subject to copyright protection
 Fixation of means existence of off a literary or copyrightable work in tangible form
 Requirement of fixation also existed in the Berne Convention and the Rome Convention.
Article 2(2) of Berne Convention – it is a matter of municipal legislation in the signatories to
prescribe that works in general or any specified categories of works shall not be protected unless they
have been fixed in some material form.
 Donoghue v. Allied Newspapers Ltd  work dictated to a stenographer will acquire protection from
the time the shorthand note is taken down
 Copyright will subsist in a lecture given by a professor or a judgment given in a Court but only if it is
recorded with the consent of the author. The consent may be implied.
 A student will not have the right to publish his class notes regardless of whether they are summaries
(Caird v. Sime) or verbatim transcripts (Nichols v. Pitman) if they are recorded without consent.
 Walter v. Lane  held that a journalist who transcribed a public speech was entitled to copyright in
his record of that speech.
 In india, fixation is not a requirement under the Copyright Act. Courts have also stated that it is not a
pre-condition for a copyright to subsist.
Copyrightable Works

By virtue of Section 13, the works in which copyright shall subsist throughout India in the following classes
of works, that is to say,—

a) original literary, dramatic, musical and artistic works;

b) cinematograph films; and
c) sound recording.

A. Literary Work
 Section 2(o) defines "literary work" which includes computer programmes, tables and compilations
including computer literary data bases.

Programmes recorded on any disk, tape, perforated media or

other information storage device, which if fed into a computer is capable of reproducing any information

Titles

 Kanungo Media (P) Ltd. v. RGV Film Factory

- Delhi HC case – question of whether the provisions of the Copyright Act could be extended to
protect film titles as literary works
- Kanungo had adopted the title Nisshabd for its Bengali film and had exhibited the film at several
film festivals. But the film was not released publicly. Subsequently, the producer of the film learnt
that RGV Film Factory had adopted the same title for its forthcoming film in Hindi.
- Kanungo filed suit for a permanent injunction for copyright infringement and passing off by RGV.
Kanungo stated that its film had been shown at many film festivals and had received awards and
accolades; thus, it had acquired distinctiveness among the film industry and the public.
- Copying of a title alone and not the plot, characterisation, dialogue, song, etc. is not the subject of
copyright law. Thus, a copyright on a literary work would not include exclusive right to use title on
any other work. Legal protection for literary titles lies in the field of Trademark and unfair
competition.

 EM Forster v. AN Parasuram
- “A Passage to India” is an English novel writted by EM Forster which is used as a textbook for the
students taking the BA course.
 - AN Parasuram published a guidebook for the same titled “EM Forster, A Passage to India,
Everyman’s Guide”
- Held - No copyright to title

Database

The criterion for originality is satisfied in setting up of database when through the selection or arrangement
of data, the author expresses his creative ability in an original manner.

This criterion is not satisfied when the setting up0 of database is dictated by technical considerations which
leave no room for creative freedom.

Judgements

 As soon as a judgment is delivered, it becomes the operative pronouncement of the court. It belongs to
the State, to the Sovereign Republic and her public. There can be no copyright over them. They are
public documents and can’t be treated as something over which copyright could exist. Reproduction or
publication of any judgment or order of a court or tribunal shall not constitute infringement. ( Eastern
Book Compnay v. DB Modak)
 But if a publisher inserts such inputs in the text of the judgment which satisfy the test of minimal
creativity, then it shall have copyright. (Eastern Book Compnay v. DB Modak)
 Section 52 (1) (q) (iv), Copyright Act: Certain acts not to be infringement of copyright – reproduction of
any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or
publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority,
as the case may be

Head Notes, short notes

 Infoseek Solutions v. Kerala Law Times

- Plaintiff asserted copyright on the reports of the judgments made by it in the publication Kerala Law
Times, including head notes, short notes, long notes, editorial notes, citations, etc. as published in
Kerala Law Times
- Court found – that a law report is the result of literary exercise of the editor. A report of a judgment
which includes the entire judgement and is placed as a report along with head notes or editorial notes
in any particular layout of a reporter and publisher, contains such originality as requires it to be
treated as an original literary work for the purpose of S. 13 (1) (a) of the Act.
- Short notes of cases stand in the same footing

Advertising Slogan
 Slogans not entitled to copyright protection.
 (Godphrey Phillips India Ltd. v. Dharampal Satyapal Ltd.)
- Defendants use of the advertising slogan “swaad badi cheez hai” was challenged by plaintiffs who
were using the slogan of “shauq badi cheez hai” for their pan masala.
- Held – both were only common hindi words

Sequences

 Telegraph cases in 19th and 20th Centuries: held – there is copyright in seemingly arbitrary sequences of
letters which of themselves imparted no human message and which tool meaning from a highly
specialised and unpublished context
 Emergent Genetics India (P) Ltd. v. Shailendra Shivam
- Defendants reproduced the unique sequencing formula of the hybrid seeds of the plaintiff threby
resulting in copyright infringement of the plaintiff
- Plaintiff said – copyright is capable of subsisting in a scientific record consisting of a series of letters
or other characters symbolising the DNA, etc provided that the recorded sequence is of sufficient
length.
- Held – mere labour or investment of manpower and resources is not a substitute for technology.
Sequences obtained from the nature cannot be original.
The scientist involved in gene sequencing discovers facts. There is no independent creation of a
work, essential for matching the originality requirement. He merely copies the genetic sequence
containing codes for proteins, therefore there is no minimal creativity.
no independent creation, no minimal creativity – no originality

 Bikram’s Yoga College of India v. Evolution Yoga

- Question whether yoga sequences could be granted copyright protection
- Held – Sequence – not copyrightable

Circuit Diagrams

 Interlego AG v. Tyco Industries

- Circuit diagrams are literary works
- Provided that the worl was written down and contained information which could be read by someone
as opposed to simply being appreciated with the eye
- Circuit diagrams are electrical engineer’s notation

Editorial Notes

 protection of copyright can be for Editorial notes claimed

 editorial notes are the notes of the editor himself.
  Not only original, it may be the fruit of research. In these notes, editor adds his own understanding or
view with regard to some aspect of the judgment. May not be clarificatory in nature, may also bear a
critical note.

Sermons of religious preacher

 Satsang v. Kiron Chandra Mukhopadhyay

- Question whether works of a religious preacher in his own handwriting and the compilations of the
discussions and sermons of a religious preacher are literary work within the meaning of the word
“work”
- Calcutta HC – affirmed

Dictionaries, gazetteers, maps, almanacs, encyclopaedia

- Not all men have got the brains and skill to make these and hence only one Dictionary, gazetteer,
map, almanac, encyclopaedia will sell and not the rest
- Oxford dictionary, Webster dictionary and chambers dictionary – there is a lot of difference in these
and considerable difference with the subject matter
- All these works are capable of having copyright in the description

Question Papers

 ICAI v. Shaunak H Satya

- Question papers, instructions regarding evaluation and solutions to questions (or model answers)
which are furnished to examiners and moderators in connection with evaluation of answer scripts,
are literary works which are products of human intellect and therefore subject to a copyright.

Letters

The author of letters is entitled to a copyright in the letters – Meeropol v. Nizer

Compilation

 A compilation is a work formed by the collection and assembly of pre existing materials or of data that
are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an
original work of authorship
 It is not enough for copyright purposes that an author collects and assembles facts. Compilation is
copyrightable only if it satisfies the originality requirement “an original work of authorship”
 Macmillan v. Suresh Chandra Deb
- Question – whether selection and arrangement of non copyright poems in a work as Palgraves “golden
Treasury” could claim protection
- Protection could be claimed
 Diljeet Titus v. Alfred A Adebare – list of clients and their addresses can be included in the category of
literary works ass compilations.

B. Dramatic Work
 According to Section 2 (h), dramatic work includes any piece for recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or
otherwise but does not include a cinematograph film
 Most drama is a form of writing for oral and actual performance. Printed texts of plays can be read as
literature.
 The only difference between dramatic work and literary work is that dramatic work forms the text upon
which performance of a play rests whereas a literary work enables one to read printed works
 Academy of General Education v. B. Malini Mallya
- Held – dramatic work is also a form of literature

C. Musical Work
 A song consist of three elements: lyrics, music, and singing
 Musical work according to Section 2 (p) means 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”
 Sumangalam R Jayalakshmi v. Meta Musicals
- A composer who has done the musical work wrt a particular songs by providing tunes will be the
owner of the copyright and also has the authority to assign the said copyright on musical work to any
person

D. Sound Recording
 Section 2 (xx) - Sound recording means a recording of sounds from which such sounds may be produced
regardless of the medium on which such recording is made.
 In the case of sound recordings and cinematograph films, the literary and musical work gets incorporated
in it thereupon making independent copyrighted works. Rights under Section 14 in respect of each sound
recording and cinematograph film can be exploited by the owner of the sound recording or
cinematograph film without interference from the owners of copyright in the underlining literary or
musical works therein.
 The owner of a sound recording has the exclusive right of communicating the sound recording to the
public. The owners of the underlining works incorporated in a sound recording do not have the right of
communicating the same to the public as a part of the sound recording.
The owner if a copyright in the underlying works retains the bundle of copyrights therein otherwise than
as a part of the sound recording.
 Section 31C provides for statutory license to any person who is desirous of making a cover version of a
sound recording in respect of any literary, dramatic or musical work (added by the amendment of 2012).
- It provides that the person making the sound recording, needs to give a prior notice of his intention to
the owner, in the prescribed manner
- provide the copies of all covers or labels with which the version is supposed to be sold, and pay in
advance the royalty at the rate fixed by the Copyright Board.
- Such sound recordings shall not be sold or issued in any form of packaging or with any cover or
label which is likely to confuse or mislead the public as to their identity.
- Such sound recordings can be made only after the expiration of 5 years after publication of the
original sound recording. There is a requirement of payment of a minimum royalty for 50,000 copies
of the work during each calendar year.

E. Artistic Work
 Section 2 (c): Artistic work means
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. work of architecture; and
c. any other work of artistic craftsmanship;
 wherever any artistic work has to be in a commercial exploitation by the owner of the copyright the same
should be excluded from the protection under the Copyright Act, 1957. It can be granted protection
under the Designs Act, 1911 – ONLY if the said design is registered under the Designs Act.
Copyright act protects the artistic work, but certain designs are excluded from the protection under the
same, to avoid hindrance in manufacture and sale of industrial articles. If not for such manufacture, the
same design might have been entitled to protection under Copyright Act.

In india, there are special legislations governing protection of different nature of rights. like industrial
designs are protected under the Designs Act, 2000. The legislative intent is to provide protection for a
certain period of time for commercial exploitation.

Nature of protection is different for artistic work under copyright act: lifetime of the author + 60 years.
In case of commercial exploitation under designs and the patent act, the time period is much lesser.
 Exclusion of “artistic work” (as defined under S. 2(c), Copyright Act) from the definition of “design”
(defined under S. 2 (d) of the Designs Act) – is only meant to exclude the nature of artistic works like
paintings such as paintings of MF Hussain.

The intention here was to protect any artistic work which has to be commercially exploited by not
providing the protection under the Copyright Act, but under the earlier Designs Act, 1911.

 King Features Syndicate Inc. v. O & M Kleeman Ltd.

- The suit was instituted on the ground that the respondents infringed the copyrights of the appellants
in certain artistic work, namely sketches, portraying a fictitious character known as “Popeye the
Sailor” by the merchant and sale of certain dolls and brooches.
- The House of Lords was of the opinion that the reproduction, which was based, albeit indirectly, on a
number of drawings of the character, was an infringement of the artistic copyright in those drawings
and therefore of the character.
- law will recognise copyright in fictional characters only to the extent that they exist as artistic works.
- The court said that the governing element in the definition is the use or intention to use the design as
a model or a pattern for industrial application.

Types of Artistic Work

Painting

- Make up design is not copyrightable due to lack of fixation.

- Merchandising Corporation of America Inc. v. Harpbond Ltd.
- The case concerned the facial make up performer, Adam Ant. he created what he termed his “Prince
Charming” style which particularly involved the application of makeup to his face to create a blue
band between two red bands on one of his cheeks.
- Defendants had produced a poster which showed the plaintiff made up in his style and then the –
plaintiff sought an injunction claiming that the application of makeup to his face was a “painting”
- Held – painting must be on a surface of some kind. A painting is not an idea; it is an object; paint
without a surface is not a painting
Sculpture
 are protected
 an ice sculture, though not permanent, is proteceted.

Drawing

 Drawing includes any diagram, map, chart or plan.

 It also includes any kind of mechanical or engineering drawings.
 Simple drawing which involves no skill or effort may not be entitled to copyright (like a single straight
line with the aid of a ruler)
 Drawing derived in part from earlier drawings can claim to be a separate original artistic work.
Copyright can subsist in a product drawing even though it is based on an earlier product drawing
provided the designer has performed sufficient independent labour to justify copyright protection.

Engravings (S. 2(i))

 Engravings includes etchings, lithographs, woodcuts, prints and other similar works, not being
photographs.
 It is the art of inscribing or carving figures upon surfaces or cutting figures, etc.
 Although an engraver is ordinarily a copyist, but his work requires considerable amount of work and
talent.
 Copying from an engraving would amount to infringement, but an engraving produced independently
from the same picture is not.
 A plastic moulded product comes within the definition of sculpture or engraving.

Photograph (S. 2(s))

 A photograph is considered an artistic work entitled to copyright

 To be entitled for protection, a photograph must be original and to be original some degree of skill and
effort must have been expended on it.
 A photograph of an existing photograph is not entitled to copyright protection because it is a mere copy.
The positive made from the negative is a reproduction of the photograph.

F. Cinematograph Film

 A cinematograph will have a separate copyright apart from its various components namely the story, the
music, etc.
 It was defined under S. 2(f)
 It has now been amended by removing the condition with respect to the medium and the process of
creation of a visual recording. Any work of visual recording now qualifies as a cinematograph film.
According to the earlier definition, the visual recording was required to be made on a medium and to be
made through a process of producing of a moving image.
 There is a new definition of visual recording (S. 2(xxa)): visual recording is the recording in any
medium, by any method, including the storing of it by electronic means, of moving images or of the
representations thereof, from which they can be perceived, reproduced or communicated by any method.
 Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association
- The Copyright Board had initially decided that composers and lyricists retained copyright in their
musical works incorporated as sound tracks in cinematograph films and thus can collect fees,
royalties and charges with respect to those films.
- On appeal, the High Court set aside the decision of the Board.
- SC finally held that – the composer of the musical work, or its author do not possess any rights in the
works once those rights are assigned in the favour of the producer of a cinematograph film. Sound
recordings, which are also a part of the cinematographic film, is owned by the producer of the film.
- Copyright of the said owner of the cinematographic film is restricted to the “said film” and all other
rights are retained by the author. The owner of the underlying work retains the right to perform it in
public otherwise than as part of the cinematographic film.

 So basically the conclusion is this:

In India when music/lyrics are commissioned for a film, they are governed by Section 17 (d) or (c) of
the Act. Result is that there emerges one owner, i.e., the film producer of four separate works:
a. Cinematograph film itself;
b. The sound recording;
c. The lyrics;
d. The musical composition

These works though forming a part of the film continue to retain their separate copyright identity.

Derivative Work

 A derivative work consists of contribution of original material to a pre-existing work so as to recast,

transform or adapt the pre-existing work.
 This includes a new version of a work in the public domain – abridgment, adaptation, arrangement,
dramatisation or translation
 It qualifies for copyright because of the original effort expended in the process of compilation, even
if no new matter is added.
 In order to qualify for a separate copyright as a derivative or collective work, the additional matter
injected in a prior work must constitute more than a minimal contribution.
  not every minor alteration creates a new copyright. There needs to be some additional element of
material alteration sufficient to make the work an original work.
It is the quality rather than the quantity of the addition which merits protection.

Translation
 an author has the exclusive right to publish the translation and no other person has the right to
translate the work.
 Hira Lal v. Saraswati
- Ajhunia Prasad in Urdu called Translation Guide, part I
- He also wrote one in Hindi but he died before he could publish it. His widow then had the new workl
published by the applicants
- Three years later the applicants published another edition of the same in Hindi and suppressed the
name of the author and claimed to be the proprietors of it
- Held – author of a book who made a translation of it was entitled to a copyright as if it were an
original work

Abridgment

 An abridgement of an author’s work means a statement designed to be complete and accurate of the
thoughts, opinions and ideas by him compressed therein, but set forth much more concisely in the
compressed language of the abridger.
 This requires learning, judgment, literary taste and skill requisite to compile properly and effectively
an abridgment deserving that name.
 In India, upto 1914, only an author had the sole liberty of reprinting his book. Abridgment of a work
would not upto that time be an infringement. But such an abridgment must be fair and bonafide and
must not amount to a reprinting of the work of the author
 The position changed in view of the wider language employed by the legislature in the Act of 1914
 The amendment has now done away with the amount of skill, labour and intelligence bestowed upon
an abridgement
 The test is whether or not it is a reproduction of the work or a substantial part of it in any material
form whatsoever.

Ownership of Copyright

 S 13(1) of Copyright Act – Copyright subsists in:

(a) Original, literary, dramatic, musical and artistic works.
(b) Cinematograph films.
(c) Sound recordings.
 Copyright comprises a bundle of rights which can be owned by many owners or by one owner.
First Owner of Work

 S 17 of Copyright Act- Author is the first owner of the copyright.

 Govt is the first owner of the copyright of a govt. work in the absence of any contract to the contrary.

Exceptions under S 17:

 Section17 (a) - where a work is made by the author in the course of his employment by the
proprietor of a newspaper, magazine or a periodical under a contract of service or apprenticeship for
the purpose of publication in a newspaper, magazine or periodical, the said proprietor, in the absence
of any agreement to the contrary will be the first owner of the copyright in the work in so far as it
relates to the publication of the work in any newspaper, magazine or similar periodical or to the
publication of the work for the purpose of being so published.
 Section 17(b) - where a photograph is taken or a painting or a portrait drawn, or an engraving or a
cinematograph film made, for valuable consideration at the instance of any person, such person, in
the absence of any agreement to the contrary, shall, be the first owner of the copyright therein.
 Section 17(cc) - in case of any address or speech delivered in public, the person who has delivered
such address or speech or if such person delivered such address or speech on behalf of any other
person, such other person shall be the first owner of the copyright notwithstanding that the person
who delivers such address or speech, or, as the case may be, the person on whose behalf such address
or speech is delivered, is employed by any other person who arranges such address or speech or on
whose behalf or premises such address or speech is delivered
 Section 17(d) - in the case of a government work, the government shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein
 Section 17(dd) - in the case of a work made or first published by or under the direction or control of
any public undertaking, such public undertaking shall, in the absence of agreement to the contrary,
be the first owner of the copyright.

"public undertaking": means:

(1) An undertaking owned and controlled by Government; or
(2) A Government company as defined in section 617 0f the companies Act, 1956; or
(3) A body corporate established by or under any central, provincial or state Government;

 Section 17(e) - in the case of a work to which the provisions of section 41 apply, the international
organization concerned shall be the first owner of the copyright

Section 41
  If any work is made or first published by or under the direction or control of any organization to
which this section applies, and
 there would, apart from this section, be no copyright in the work in India and
 The work is published as aforesaid in pursuance of an agreement in that behalf with the author,
being an agreement which does not reserve to the author copyright, if any, in the work,
 Under section 17 any copyright in the work would belong to the organization.

Definition of author – S 2(d) of Copyright Act

Author means –

 In relation to a literary or dramatic work - the author of the work

 In relation to a musical work – composer
 In relation to an artistic work other than a photographer – the artist
 In relation to a cinematograph film or sound recording – the producer
 In relation to any literary, dramatic, musical or artistic worker which is computer generated – the
person who causes the work to be created.

Ownership/right to lawfully exercise and exclusive right arises under the Act:

 The “creation” o “authorship” of a work subject to the exceptions in S 17 of the Act.

 Assignment under Section 18 of the Act.
 Voluntary license under Section 30 of the Act.
 Compulsory or involuntary license under Section 31 or Section 52(1)(j) of the Act.

Joint author – definition given in Cala Homes (South) Ltd. V Alfred Mcalpine

A joint author is a person:

 Who collaborates with another author in the production of a work.

 Who, as an author, provides a significant creative input.
 Whose contribution is not distinct from that of other author.
 He must contribute to the production of the work and create something protected by copyright which
finds its way into finished work.

Owner of employed work

Burlington Home Shopping (P) Ltd v Rajnish Chibber

If a work is made in the course of other’s employment under a contract of service/apprenticeship, it is the
employer who is the first owner of the copyright in the absence of any agreement to the contrary.
V. T. Thomas v Malayala Manorama Co. Ltd.

 Pl was a cartoonist who presented cartoon characters, Boban and Molly in Malayala Manorama.
 The additional characters included Daddy, Mummy, President of local authority and the chummy
car.
 After quitting from the service of Manorama, Toms started publishing the cartoon series in another
magazine.
 Question before the court - Whether after termination of employment of employee (Tom) from
Manorama, Manorama can claim authorship regarding futurework.

Court held:

 in the case of termination of the employment, the employee is entitled to the ownership of copyright
in the works created subsequently and the former employer has no copyright over the subsequent
work so created.
 After his termination of employment from Manorama, Tom is the author of the work he is free to
draw the cartoons and Manorama has no right to restrain him from drawing the cartoon.
 The Court in the end concluded that cartoon characters were developed by the author in 1957, (at a
time when he was not the employee of Manorama) which entitle him to copyrights.

Rupendra Kashyap v Jiwan Publishing House

 Question paper for conducting examination of CBSE can form subject-matter of copyright.
 Under S.17 of the Act, first owner fo the copyright would be the author of the work i.e. paper setters.
 Merely because paper was set for CBSE, CBSE does not become the owner.

Owner of a Cinematographic Film – producer

Producer defined in S 2(uu) as ‘producer', in relation to a cinematograph film or sound recording, means a
person who takes the initiative and responsibility for making the work;

Ramesh Sippy v Shaan Ranjeet Uttamsingh

 Director of the film Sholay filed suit for restraining the production of 3D version of the movie on the
contention that he is the director and copyright owner of the movie.

Court held:

 Owner is a person who has spent money towards the production of the film and not merely arranged
for the funds.
  He must have taken the risk of commercial failure i.e. one who will lose money if the film flops and
who will reap the fruit of the commercial success if the film is a hit.
 It was the df firm which spent on the production of the film and hence the film is the property of the
df.
 Also held, authorship of the work is to be determined when the work comes into existence , in case
of a film when the film is completed.

Assignment of Copyright

S18(1) – Owner of the copyright in an existing work or the prospective owner of the copyright in a future
work may assign to any person the copyright for the whole term of the copyright or any part thereof.

When the assignee of a copyright becomes entitles to any right in the copyright, the assignee will be treated
as the owner of the copyright wrt the right assigned.

Assignment can be applied to :

 A medium or mode of exploitation of the work which was in existence or commercial use ath the
time when the assignment was made.
 A medium not in existence at the time of assignment, if the assignment specifically referred to such
medium or mode of exploitation of the work. – S 18 proviso.

Assignment of copyright to make a cinematographic film does not affect the right of the author of the work
to claim an equal share of royalties in case of utilisation of the work in any form other than for
communication to the ublic of the work along with the cinematograph in a cinema hall.

Assignment of copyright in any work to make a sound recording which does not form part of any
cinematograph film shall not affect the author of the work to claim an equal share of royalties for any
utilisation of such work in any form –

Section 19

 No assignment of the copyright in any work shall be valid unless it is in writing signed by the
assignor or by his duly authorised agent.
 The assignment shall identify the work, and specify the rights assigned and the duration and
territorial extent of assignment.
 The assignment of copyright shall also specify the amount of royalty payable to the author or his
legal heirs during the currency of the assignment.
 The assignment shall be subject to revision, extension or termination on terms mutually agreed upon
by the parties.
  If the assignee does not exercise the right assigned to him within the period of one year from the date
of assignment, the assignment shall be deemed to have expired after the lapse of that period.
 If the period of assignment is not stated, it shall be deemed to be five years from the date of
assignment.

Assignment of Copyright in Future work

 In case of assignment of copyright in any future work, the assignment shall take effect only when the
work comes into existence. – S 18 proviso of Copyright Act, 1957
 A present assignment of future property is effective to vest equitable title in the assignee as soon as
the work comes into existence – performing Right Society Ltd. V London Theatre of Varieties Ltd.

B4U Network (Europe) Ltd. V P Performing Right Society Ltd.

 In 2004, Composers Salim and Sulaiman Merchant entered into written agreement with the
respondent, PRS (a music rights collecting society in UK WRT certain rights which include the right
to broadcast copyright musical works on behalf of writers and publishers of copyright music and
associated lyrics.)
 PRS licenses those who use the works of its members and distributes royalties which it obtains from
the licensees.
 4 years later, composers were commissioned by the producers, Dharma Productions, to write music
for the film, Kurbaan.
 A satellite television broadcaster, B4U acquired video rights to broadcast the song Shukran Allah
through a licensing agreement from Kurbaan and broadcast the song.
 PRS claimed for copyright infringement.

Court held – it was beyond argument that the composers’ rights in music they were yet to compose were
owned by PRS as of 2004.

Term of Copyright

 Published literary, dramatic, musical and artistic work other than photograph
 If published within the lifetime of the author – until 60 years from the beginning of the calendar
year next, following the year in which the author dies. – S 22
 If published anonymously or pseudonymously- until 60 years from the beginning of the calendar
year next, following the year in which the work is first published – S 23
 If identity of author is disclosed before expiry of the said period – until 60 years from the
beginning of the calendar year next, following the year in which the author dies – S 23
 Section 24 – Term of copyright in Posthumous work
 Applies to literary dramatic or musical work or an engraving.
 If copyright subsist at the death of the date of author or in the case of any such work of joint
authorship
 Copyright subsists until 60 years from the beginning of the calendar year, next, following the
year in which the work is first published or when an adaptation of the work is published in any
year earlier, from the beginning of the calendar year next, following the year.

 Term of copyright in photograph

 Until 6o years from the beginning of the calendar year next following the year in which the
photograph is published – S 25

 Term of copyright in cinematograph films

 Until 60 years from the beginning of the calendar year next following the year in which the fim is
published. – S 26

 Term of copyright in records

 Until 60 years from the beginning of the calendar year next following the year in which the
sound recording is published. – S 27

 Term of copyright in government work

 Until 60 years from the beginning of the calendar year next following the year in which the work
is first published. – S 28

 Term of copyright in works of public undertakings

 Until 60 years from the beginning of the calendar year next following the yearin which the work
is first published. – S 28A

 Term of copyright in works of international organisation to which Section 41 apply

 until 60 years from the beginning of the calendar year next following the year in which the work
is first published. – S 29

Licenses

S 30, Copyright Act –

The owner of the copyright in any existing work or the prospective owner of the copyright in any future
work may grant any interest in the right by license in writing signed by him or by his duly authorised agent.
Compulsory license in works withheld from public – S 31

- If at any time during the term of copyright in any Indian work which has been published or
performed in public, a complaint is made to the Copyright Board that the owner of the copyright in
the work:
 has refused to republish or allow the republication of the work, and by reason for such refusal,
the work is withheld from the public.
 Has refused to allow communication to the public on terms which the complainant considers
reasonable

The copyright board should the owner of the copyright in the work a reasonable opportunity to be heard and
hold necessary inquiry

If satisfied that the grounds for such refusal are not reasonable, copyright board will direct the registrar of
Copyrights to grant the complainant a license to republish the work, perform the work in public or
communicate the work to the public by broadcast, as the case may be.

This is subject to payment to the owner of the copyright of such compensation and subject to such other
terms and conditions as the Copyright Board may determine.

Compulsory license in unpublished Indian Works

Section 31A of Copyright Act

- If in case of an Indian work, the author is dead or unknown or cannot be traced, or the owner of the
copyright in such work cannot be found.
- Any person may apply to the Copyright Board for a license to publish such work or a translation in
any language.
- Before making an application, the applicant should publish his proposal in an issue of a daily
newspaper in the English language having circulation in major part of the country
- If the application is for translation in any one language, the proposal is to bepublished in a daily
newspaper in that language.
- When an application is made to Copyright Board, it holds an inquiry.
- After that, it directs the Registrar of Copyrights to grant to the applicant a license to publish the work
or its translation in the language mentioned in the application subject to payment of royalty and
conditions as the Copyright Board may determine.,
 - When the license is granted under this section, the Registrar of Copyrights direct the applicant to
deposit the amount of royalty determined by the Copyright Board in the public account of India or in
any their account specified by Copyright Board.
- This is to enable the owner of the copyright or his heirs to claim such royalty at any time.

- If the original author is dead and the Central Gov. considers that the publication of the work is
desirable in the national interest, it can require the heirs, executors or legal representatives of the
author to publish such work with such period specified by it.

- If any work is not published within the period specified by the Central Government, the Copyright
Board may, on an application made by any person for permission to publish the work and after
hearing the parties concerned, permit such publication on payment of royalty determined by the
Copyright Board.

License to produce and publish translations – Section 32

- Any person may apply to the Copyright board for a license to produce and publish a translation of a
literary/dramatic work in any language after a period of seven years from the first publication of the
work.
- A person may apply to the copyright board for a license to produce and publish a translation after a
period of three years from the publication of such work if such translation is required for the purpose
of teaching, scholarship or research.
- If a license is granted on an application, it is subject to the condition that :
 the license will not extend to the export of copies of the translation of the work outside India
 every copy of such translation shall contain a nnotice in the language of such translation that
the copy is available for distribution only in India.

License to reproduce and publish works for certain purposes – S 32A

 If after the expiration of the relevant period from the date of first publication of an edition of a
literary, scientific or artistic work –
(1) The copies of such edition are not made available in India
(2) Such copies have not been put on sale in India for a period of six months to the general public or
(3) In connection with systematic instructional activities at a price reasonably related to that
normally charged in India.
 Any person may apply to the copyright board for a license to publish such work at a price at which
such edition is sold or a lower price for systematic instructional activities.
Termination of license

Section 32B

 If at any time after granting of a license to produce and publish the translation of a work in any
language
 the owner of the copyright in the work or any person authorised by him publishes a translation in the
same language
 which is substantially the same in content
 at a price reasonably related to the price normally charged in India for translation of works of the
same standard on the same or similar subject
 the license shall be terminated.
 Such termination shall not take until after the expiry of a period of three months from the date of
service of notice on the person holding the license by the owner of the right of translation.

Rights under Copyright

 Copyright – a positive right which authorises the author to do something positive.

 Exclusive rights include:
a. Right of reproduction
b. Right of dissemination
c. Right of exhibition
d. Right to communicate work to the public
e. Right to recitation, performance and presentation
f. Right to broadcasting
g. Right to communicate through visual or sound recording
h. Right to communicate by broadcast transmission.

Section 14

Copyright is the exclusive right to do or authorise the doing of any of the following acts:

(a) Literary, dramatic or musical work not being a computer programme

(i) To reproduce the work in any material form including storing of it in any medium of
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 public
(iv) To make any cinematograph film or sound recording in respect of words
(v) To make nay translation of the work
(vi) To make nay adaptation of the work
(b) Artistic Work
(i) To reproduce the work in any material from including depiction in 3 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 the 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.

Neighbouring Rights

Performer’s right

Section 38

 where any performer engages in any performance, he shall have a special right to be known as a
performer’s right in relation to such performance.
 Performer’s right subsists until 50 years from the beginning of the calendar year next following the
year in which the performance is made.

 Reproduction of the performance through sound or visual recordings without the permission of the
performer is prohibited.

 S 2(q) – Performance in relation to performer’s right means any visual or acoustic presentation made
live by one or more performers.

 S 2(qq) -
- Performer includes an actor, singer, dancer, acrobat, juggler, conjurer, snake charmer, person
delivering a lecture or any other person who makes a performance.
- Persons appearing casually or incidentally who are not acknowledged anywhere in a film are not
performers.

Neha Bhasin v Anand Raj Anand

 Every performance has to be live in the first instance whether it is before an audience or in a studio.
  If this performance is recorded and exploited without the permission of the performer, then
performer’s right is infringed.

Super Cassette Industries ltd. V Bathla Cassette Industries (P) ltd.

 Performer’s right not identical to copyright.

 Performer must seek protection of his performance under provisions of the Act relating to performers
and not under law of copyright.

Star India (P) Ltd v Piyush Agarwal

 Cricket match falls within the ambit of performance and cricketers as well as umpires are performers.

Section 38A – Exclusive right of performers

 To make a sound recording or a visual recording of the performance including:

- Reproduction of it in any material form including storing of it in any medium by electronic or
other means.
- Issuance of copies of it to the public
- Communication of it to the public
- Selling or giving it on commercial rental or offer for sale or for commercial rental any copy
of the recording.
 to broadcast or communicate the performance to the public except when the performance is already
broadcast.
 If the performer has consented to the incorporation of his performance in a cinematograph film, he
cannot object to the enjoyment of the performer’s right by the producer of the film in the same film.
 However, the performer shall be entitled for royalties in case of making of the performances for
commercial use.

Section 38B – Moral rights of the performer

 To claim to be identified as the performer of his performance except where omission is dictated by
the manner of the use of the performance.
 To restrain or claim damages in respect of any distortion, mutilation or other modification of his
performance that would be prejudicial to his reputation.

Broadcast reproduction right – not done because not discussed.

Moral rights

Berne Convention
Since its inception in 1886, Berne Convention has been the primary institute of international copyright.

Article 6bis of this Convention enjoins the members of the Berne Union to provide legal recognition for the
moral rights in a work in which copyright exists.

There are four moral rights based on Berne Convention:

 The right o be identified as the author of the piece of work, the paternity right.
 The right of the author to object to derogatory treatment of their work, right to integrity.
 The right to object to false attribution.
 The right to privacy in photograph and films.

Copyright law in India was brought at par with the Berne Convention:

Section 57 – Authors’s special rights.

 Right to claim authorship of the work.

 Right to restrain damages in respect of any distortion, mutilation, modification or other act in relation
to the said work if such distortion, mutilation, modification or other act would be prejudicial to his
honour or reputation .

Amar Nath Sehgal v UOI

 The mural which decorated the walls of Vigyan Bhawan and had become an essential part of India’s
best art heritage created by the magic hands of sculptor Amar Nath Sehgal was pulled down and
dumped in a store house.
 Pl filed the suit for violation of Section 57.

Court held:

Treatment of a work which is deregotary to the reputation of the author can be objected by the author under
Section 57.

Editing as violation of right to integrity

Gilliam v American Broadcasting Companies Inc

 Monty Pythons Flying circus – a comedy series that was developed for broadcast by BBC with an
agreement prohibiting substantial edits without express permission from the worker.
 In a license agreement, BBC licensed the series to ABC commercial network.
  The clause in the agreement prevented BBC from authorising others to make material changes to the
series.
 ABC Television network had created an unauthorised derivative work through editorial removal of
almost one third of the running time of episodes.

Court held :

 ABC falsely attributed authorship of the edited work.

Frisby v BBC

 Pl was commissioned by BBC to write a television play.

 Contract prevented BBC from making material alterations to the script.
 BBC deleted one sexually explicit line which the author considered to be of basic importance to his
play.
 Court held in favour of the pl as BBC did not have a right of adaptation and found the deletion to
affect the integrity of the author.

International Copyright: s.40

Copyright Protection is given only to works first published in India irrespective of the nationality of the
author.

Except where the author is a foreign national whose country does not give protection to Indian authors.

Thus, it works on a reciprocal basis

These works include unpublished as well as published posthumously.

India is a member of Berne Convention and Universal Copyright Convention and thus CP is granted to
works published in the member countries of these Conventions (which practically covers all countries.)

Works of International Organization, like UNO, OAS are granted CP in India irrespective of place of
publication.

Provided they are first published by the international organization and there is no copyright for the work in
India at the time of publication.
Registration of Copyright:

- not necessary for enforcing copyright by a party

- is only to raise a presumption that the person shown in the certificate of registration is the author.

- no provision in the Act which deprives the author of his rights on account of non-registration

- In R Madhavan v. S.K Nayar - ss.45 and 45 of the Act are only enabling provisions and do not affect
the common law right to sue for infringement.

Procedure for Registration:

- application in prescribed form + prescribed fee to be given to the Registrar to enter it into the
Register

- Registrar after holding inquiries as he may deem fit enter the particulars of the work in the Register

- wrt any artistic work being used in relation to any goods, a certificate from the Registrar of TM also
needs to be included to show that such work (identical or similar) is not already registered under the TM
Act. (s.45)

Copyright Board: s.12

- Chairman + 2-14 members

- Chairman - is or qualified to be a judge of the HC

- Registrar of copyrights - Secretary

- will have power to regulate its own proceedings like fixing time and places of its sittings

- Bench - minimum 3 members. For matters of importance - 5 members

- When difference of opinion - majority view. If no majority - Chairman’s decision

- Doesn’t have powers to pronounce whether a person has committed an infringement or not

It decided questions arising on.

i. whether a work has been published/ date of its publication

 ii. whether the term of a copyright for a work is shorter in any other country wrt that work

Appeal:

- against order of Registrar of Copyrights to the Copyright Board and further appeal to the High Court
against order by Copyright Board

Infringement: s.51

- owner of a copyright has exclusive right to do certain acts in respect of the work

- if any person does any of these acts without authority he will be committing infringement

- nature of rights depends on the nature of the work

- reproduction of the work in any material form, performance of the work in public and
communication of the work to the public in certain forms are some of the usual methods where a copyright
is infringed for profits

- Actual section is as follows

Copyright in a work shall be deemed to be infringed-

a. when any person, without a license granted by the owner of the Copyright or the Registrar of Copyrights
under this Act or in contravention of the conditions of a license so granted or of any conditions imposed by a
competent authority under this Act-

i. does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

ii. permits for profit any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and had no
reasonable ground for believing that such communication to the public would be an infringement of
copyright, or]

a. when any person-

i. make for sale on hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

ii. distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the
copyright, or
iii. by way of trade exhibits in public, or

iv. imports into India, any infringing copies of the work:

Provided that nothing in such clause (iv) shall apply to the import of one copy of any work for the private
and domestic use of the importer.

Explanation – For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic
work in the form of a cinematograph film shall be deemed to be an "infringing copy".

Infringing copy means - s. 2(m)

(i) in relation to literary dramatic musical or artistic work, a reproduction thereof otherwise than in the form
of a cinematographic film;

(ii) in relation to a cinematographic film a copy of the film made on any medium by any means;

(iii) in relation to a sound recording any other recording embodying the same sound recording made by any
means;

(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's
right subsists under the provisions of this Act the sound recording or a cinematographic film of such
programme or performance, if such reproduction copy of sound recording is made or imported in
contravention of the provisions of this Act.

Essential ingredients of infringement:

i. reproduction of the work in a material form

ii. publication of the work

iii. communication of the work to the public

iv. performance of the work in public

v. making of adaptations and translations of the work and doing any of the above acts in relation to a
substantial part of the work
To judge whether a particular work has been ‘copied’ or not was very confusing. Until, the SC came out
with 7 propositions to check infringement.

Anand v. Delux Films:

1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and
violation of the copyright in such cases is confined to the form, manner and arrangement and expression of
the idea by the author of the copyrighted work.

2. Where the same idea is being developed in a different manner similarities are bound to occur since the
source is the same. In such a case the courts should determine whether or not the similarities are on
fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the
defendant's work is nothing but a literal imitation of the copyrighted, work with some variations here and
there it would amount to violation of the copy-right.

3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is
to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion
and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

4. 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.

5. Where however apart from the similarities appearing in the two works there are also material and broad
dissimilarities which negative the intention to copy the original and the coincidences appearing in the two
works are clearly incidental no infringement of the copyright comes into existence.

6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence.

7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a
Director the task of the plaintiff becomes more difficult to prove piracy. Unlike a stage play, a film has a
much broader perspective, wider field and a 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 the film
is by and large a copy of the original play, violation of the copyright may be said to be proved

- If both parties have referred to the same source - no infringement

 - But the availability of other sources can’t be used as a defence if the defendant actually copied the
work of the plaintiff

- If theme is same, but is presented and treated differently, there is no violation of copyright

Plaintiff can establish copying by showing

- that the Df had access to the plaintiff’s work

- that the Df has directly or indirectly made an unlawful use of the plaintiff’s work

- the two works are substantially similar

- that there is a chain of causation linking the plaintiff’s copyright work with the defendant’s alleged
infringing copy

The first of those can be seen implemented in Metcalf v. Bocho

- Metcalf conceived a story a county hospital in L.A and the struggles of its predominantly black staff

- When this was pitched by his friend Warren to Bocho (producer of CBS) to make it a TV Show, it
was rejected.

- Later, Bocho wrote the script for the TV Show “City of Angels” in which Warren was the star.

- The script was similar in almost all aspects to Metcalf’s. Thus, there was copying.

- The Circuit court found that Metcalf’s case is strengthened considerably by Bocho’s concession of
access to his work.

Substantial similarity test:

- it entails an intrinsic and an extrinsic test

- intrinsic - whether the ordinary, reasonable audience would find the work substantially similar in
their total concept and feel

- extrinsic - similarities in plot, themes, dialogue, mood, setting, pace, characters and sequence of
events
Borden v. Andrews

- alleged infringed game “By the Numbers” was a variation of the old game “Ghost”

- Court - both the manner of play and goal to be attained are entirely different.

- Thus, no similarity, let alone a substantial one.

Roger v. Koons

- Roger, a photographer was made to photograph 8 German Shepherd puppies.

- Used his skill and produced a beautiful photo.

- Koons made a sculpture out of it telling his artisans to ensure that it looked exactly like the
photograph.

- Court - it is not the idea but roger’s expression of the idea to place them in a certain way and in a
particular light that made the photo unique and original.

- Koons incorporating all that into the sculpture did infringe the copyright.

When is there no infringement:

- It is not an essential ingredient of infringement that the infringer had an intention to infringe

But, some form of copying is required - direct, indirect or even subconscious (music and poetry)

- Plagiarism is not considered to be an infringement of copyright. Thus, if a film producer makes use of
ideas, themes and incidents copied from other films, he can’t be sued for infringement.

- If similarity is solely due to coincidence, there is no infringement.

- No infringement when a person has taken the essential idea of the work, even if it is highly original
provided he has given expression to that idea in his own way.

Causal Connection:

- between the original and the alleged infringing copy apart from a sufficient degree of objective
similarity between the two works.
Indirect copying - copying from inter-mediate copy:

- eg: novel to play to a ballet would be infringement of novel

- presence of error in original copy can be used as evidence

- Murray v. Bogue - Plaintiff had created the original English travel book on Switzerland. This was
translated into German. Df, without being aware of the Plaintiff’s work, re-translated the German work
into English. The fact that he acted innocently was no defence.

Reproduction and copying:

- reproducing original exactly or copying a substantial part of original work.

- must be so near to the original so as to confuse someone else

- whether or not it is substantial is judged by quality and not quantity

Bootlegging:

- unauthorized recording of live performance

- the Act does not provide a remedy against this since there is no copyright in a live performance

- But performers have special rights like performer’s right to prevent bootlegging

Adaptation of Original Work: without consent of the owner amounts to infringement

Importation of infringing copies:

- if it is for private and domestic use it is allowed

- won’t apply to cinematographic film or records (casettes, cds etc banned)

- even books lawfully published in foreign country for purposes of trade will constitute infringement

Authorization of infringement:
 - a person who authorizes another to commit infringement himself commits it.

- no express provision

- But u/s. 14 - authorize the doing of any acts is in itself one of the rights of the copyright owner

- but mere authorization is not enough, the infringement must be committed too.

Sale of instruments for copying:

- eg: selling cassettes to copy music cannot be said to be infringement.

Organizers of public entertainments:

- by hiring musicians as independent contractors may be deemed to be authorizing or permitting

infringement if they leave the choice of music to the musicians.

Incitement of others to infringe copyright:

- as in by sale and advertisements of audio systems capable of copying pre-recorded cassettes,

addressed to the world at large, will not amount to infringement.

Who can sue for infringement:

- only the owner of the copyright (s.55)

- one cannot assign right to sue without transferring any other associated exclusive right

- In U.S - legal or beneficial owner of an exclusive right under a copyright

Seltzer v. Green Day Inc.

- Righthaven (Co.) obtained assignment of the right to sue from the owners

- However, held before that whatever rights assigned are always subject to any limitations that can be
imposed by the owners

- Hence, Righthaven did not have an exclusive but only a bare right to sue in case of infringement.
Infringement of literary, dramatic work:

i. there must be sufficient objective similarity between the infringing work and the copyright work or a
substantial part thereof

ii. copy right work must be the source from which the infringing work is derived

In dealing with if there is substantial copying, four things need to be looked into:

i. volume of the material taken bearing in mind that quality is more important than quantity

ii. how much of this material is the subject matter of copyright and how much is not

iii. whether there has been any intention on the part of the defendant to take for the purpose of saving
himself labour

iv. the extent to which the plaintiffs’ and defendants’ works are competing works.

Under Indian law, it is covered under s.51 read with s. 14(a)

s. 2(o) "literary work" includes computer programmes tables and compilations including computer data
basis;

s. 2(h) "dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb
show the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a
cinematograph film;

E.M Forster v. A.N Parasuram:

- 2 works - original and a guide made using the original

- it was held that the purchasers were most unlikey to be the illiterate or unacquainted with English
and thus, they would be able to tell the difference after reading the sub-title that they were acquiring, not
the original work but the guide for university students
Abraham Moon & Sons Limited v Thornber: 2013

- ticket stamp is in effect a set of instructions on how to set up the loom to produce a fabric design

- the Abraham Moon mill argued that a rival’s ‘Spring Meadow’ fabric was an infringement of its
popular ‘Skye Sage’ design.

- the Skye Sage ticket stamp was not only a set of instructions: it was also a record of a visual image –
the fabric design itself. (if it was only a set of instructions, and a garment was made following it, it
wouldn’t be infringement.)

- As the Spring Meadow fabric reproduced the whole or a substantial part of the Skye Sage design
embodied in the ticket stamp instructions it infringed the artistic copyright in the Skye Sage ticket stamp

- the Spring Meadow ticket stamp indirectly reproduced a substantial part of the literary copyright in
the Skye Sage ticket stamp.

- Thus, the literary copyright was infringed

- It serves a reminder that infringement of a graphic work (whether a ticket stamp, a drawing or
another work) can occur indirectly by copying a fabric made in the work.

Infringement of musical work:

According to s. 2(p) "musical work" means a work consisting of music and includes any graphical notation
of such work but does not include any works or any action intended to be sung spoken or performed with the
music.

Harms (Inc.) Ltd. v. Martans Club Ltd.

- dispute regarding the performance of a musical number at the Embassy Club in London

- attended by 150 members and 20 guests

- Club was run by defendants who provided entertainment for profit. (which was not by an entry fee to
the event but by the admission fee given at the time of joining the club)

- membership open to anyone who was willing to pay substantial sums

- Based on all this, Court of Appeal held that there had been presentation in ‘public’
Cooper v. Universal Music Australia Pty. Ltd

- website run by Mr. Cooper which did not itself contain any music files but allowed internet users
ready access to unauthorized music files of numerous popular sound recordings via hyperlinks.

- Court held that Mr. Cooper did not take reasonable steps to prevent or avoid the use of his website
for copying copyrighted sound recordings. Instead he deliberately designed his website to facilitate such
use and the inclusion of various disclaimers was merely cosmetic.

Infringement of artistic work:

- Artistic work - painting, sculpture, drawing, diagram, map, chart, photograph, an architectural work
etc.

- S. 51 r/w 14(c) - doing any of the following acts without the consent or license of the copyright
owner

- reproduction of the artistic work in a material tangible form.

- communicating the work to the public

- issuing copies of the same to the public

- including the work in a cinematographic film

- making an adaptation of the work

- making for sale/ hire or selling/ letting for hire, offering for sale etc. of the work

- importing infringing copies of the work except when it is used for private use.

Reproduction of work means substantial part of it.

Pidilite Industries v. S.M Associates

- colours (red, white and black), lettering (M-seal and S.M Seal in white band), arrangement of the
words were found in both works.
 - even there were slight differences, it did not matter as the essential features were found in both
meaning the substantial part was reproduced by the defendants.

Cunniah v. Balraj

- 2 representations of Lord Subramania. One picture described as Bala Murugan and in the other as
Mayura Priya.

- Madras HC found that Bala Murugan picture reproduced (in substantial parts) the special features in
Mayura Priya including jewelry, background, features of the face etc.

Infringement of cinematographic film: s. 51 read with s. 14(d)

- the exclusive right granted under copyright for a cinematographic film is doing the following acts
without license of the owner

a. to make a copy of the film

b. sell or give on hire

c. communicate the film to the public

d. make an infringing copy of the film for sale or hire

e. to distribute infringing copies for trade or to prejudicially affect the owner of the copyright

f. importing infringing copies of the work unless it is for private use

- playing a video tape in public would constitute infringement

- no defences available as in the case of literary works etc.

- a cinema is generally based on some literary, dramatic, musical or artistic work in which copyright
may subsist

- Hence, a producer must obtain a license from the owners of the same.

- term limit on a copyright film is 60 years

Anand v. Delux Films:

- The case deals with a copyright infringement suit against the movie New Delhi. The plaintiff R.G.
Anand, contended that it was modeled on the plot of a play Ham Hindustani written and produced by him.

- the court ruled that it cannot be said that the film is a “substantial or material copy of the play
written by the plaintiff.”

- the movie was an adaptation of the play under s. 2(a)(i)

- (can also write down the 7 points from TM notes)

Production by another person of even the same cinematographic film does not constitute infringement of a
copyright.

It is only when actual copy is made of a film by a process of duplication that it falls under s.14(d)(i).

Thus even if another film is made which is exactly like the previous film, it won’t constitute infringement.

Mansoob Haider v. Yashraj Films

- The Plaintiff is the author of the film script “ONCE”.

- It is claimed that the film “DHOOM 3” infringes the Plaintiff’s copyright in the aforesaid script.

- the script was alleged to have been used without his consent

- following the same principles laid down in Anand v. Delux Films, the court did not recognize the
plaintiff’s right in claiming infringement

- The plaintiff couldn’t prove that the defendant had access to his work, failed on the intrinsic test and
couldn’t prove that there was substantial and material overlapping of the original elements in the plaintiff’s
work.

CBS v. ABC

- CBS’s Big Brother is very similar to ABC’s “The Glass House” as per CBS

- The court was not persuaded by CBS’s argument that there was substantial similarity

- (elaborate a little on how big brother is shown)

Anil Gupta v. Kunal Dasgupta

- similarity’s in the plaintiff’s Swayamvar and Defendant’s Shubh Vivah

- held that the defendants were aware of the concept of Swayamvar and were only reaping the fruits of
the labour provided by the plaintiffs

Defences: s. 52

Fair Dealing

- permitted for research, private study, criticism or review or or for reporting current events in a
newspaper, periodical or broadcast or in a cinematographic film or in a photograph

- this is judged on a case to case basis

- wrt artistic work, fair dealing will involve two dimensional reproduction of the work or miniature
models of the work

- aspects like quantum and value of the matter taken in relation to the comments or criticism, purpose
for which it is taken, whether the work is published or not, likelihood of competition between the two
works

- there is no fair dealing provision for sound recording as such. Copying a recording at home for
whatever use even if it be for research or private study will be an infringement of the copyright in the
recording

- However, playing a sound recording in private is not an infringement of the copyright in the sound
recording

- Eg: if an author produces a book of questions for students, another person who republishes the book
with all the answers can’t take the defence of fair dealing

- Private use including research – like taking photocopying certain pages from a book to study comes
within private use.
(Pvt. use) Super Cassettes Industries v. Myspace Inc and another:

- Plaintiff is involved in music distribution and film producing

- Df - Myspace is a social networking and entertainment website

- The plaintiff claims that in year 2007 there was a non-disclosure agreement signed between the
plaintiff and the defendants, following which there were discussions with regard to the defendants
procuring a license from the plaintiff to display the plaintiff’s copyrighted material.

- However the talks between the two parties fell through and the plaintiff’s copyrighted material was
still available on the website of the defendants without any license from the plaintiff.

- The court found in favor of the plaintiff with regard to infringement under Section 51 (a) (ii), it said
that the defendants acts could be considered to be prima facie infringement with regard to this provision of
law.

(Pvt. use) Saregama India Ltd. v. Moviebox Megastores – 2014

- The petitioner alleged that its copyright in respect of the films and songs in question was violated by
the defendants by making them easily accessible to the public at large though the website of the defendant

- the court held that a prima facie case of infringement was made out by the plaintiff. Reliance was
also placed on the super cassettes case

Harper Row Publishers Inc. v. Nation Enterprises:

- Former President Gerald Ford had written a memoir, A Time to Heal (memoir), including an account
of his decision to pardon Richard Nixon.

- Ford had licensed his publication rights to Harper & Row, which had contracted for excerpts of the
memoir to be printed in Time.

- Instead, The Nation magazine published 300 to 400 words of verbatim quotes from the 500-page
book without the permission of Ford, Harper & Row, or Time magazine.

- Based on this prior publication,Time withdrew from the contract (as it was permitted to by a clause
therein), and Harper & Row filed a lawsuit against The Nation for copyright infringement.

- The Nation asserted as a defense that Ford was a public figure, and his reasons for pardoning Nixon
were of vital interest, and that appropriation in such circumstances should qualify as a fair use.
 - held that there was no 'public figure' exception to copyright protection

- The court applied the traditional four factor test to determine if the use was fair, and made the following
findings:

i. The purpose or character of the use was commercial (to scoop a competitor), meaning that The
Nation's use was not a good faith use of Fair Use in simply reporting news.

ii. The nature of the copyrighted work was informative.

iii. The amount and substantiality of the portion used in relation to the copyrighted work as a whole was
great -- although the "amount" was small, it constituted a "substantial" portion of the infringer's work
because the excerpt was the "heart of the work". The Court noted that the infringer could not defend
plagiarism by pointing to how much else they could have plagiarized, but did not.

iv. The effect of the use on the potential market for the value of the copyrighted work was also great,
because there was an actual harm – the cancelled contract.

J.D Salinger v. Random House

- In a case about J.D. Salinger's unpublished letters, the Second Circuit held that the right of an author
to control the way in which their work was first published took priority over the right of others to publish
extracts of the work under “fair use.”

- In the case of unpublished letters, the decision was seen as favoring the individual's right to privacy
over the public right to information.

- while ruling that fair use defence is not applicable to the case, the court found all the Harper test to
be satisfied in favour of Salinger.

- However, in response to concerns about the implications of this case on scholarship, Congress
amended the Copyright Act in 1992 to explicitly allow for fair use in copying unpublished works.

Hubbard v. Vosper

- The Church of Scientology sued a former member, Vosper, for copyright infringement due to the
publication of a book criticizing Scientology.
 - The Church of Scientology alleged that the books contained material copied from books and
documents written by Hubbard, as well as containing confidential information pertaining to Scientology
courses.

- Lord Denning found that the book was a fair dealing of the source material. He found that criticism
of the book and criticism of the subject matter were indistinguishable, and that this would not in itself
cause the fair dealing defence to fail.

- it may be possible to invoke the fair dealing defence even if a substantial part or the entirety of the
original work was reproduced, noting that the proportion of the work taken must be weighed against the
nature and purpose of the reproduction.

Civic Chandran v. Ammini Amma

- the defendants published a play that was intended to be a critique of a famous malayalam play

- since it was a critique, the court held that this was fair dealing u/s. 52

- the latter work was not a market competitor and by itself constituted a literary work with some
amount of originality

Chancellors, University of Oxford v. Narendra Publishing House

- Nph used the earlier books of oxford university and came up with a very simple explanation of the
same

- court said it was a very patent violation of copyright

- it is merely a simplified version and does not help the favour – and hence held it to be copyright
violation

- also held that doctrine of fair use legitimises the reproduction of a copyrightable work

- coupled with a limited copyright term, it guarantees not only a public pool of ideas and information,
but also a vibrant public domain in expression, from which an individual can draw as well as replenish.

Chancellors, University of Oxford and others v. Rameshwari Photocopy Service and Ors

- DU had entered into agreement with RPS

 - to give photocopy to students a compilation or a study pack at an affordable price (basically they
allowed them to take photopcopies of copyrighted material)

- in this case DU had authorised this

- interim orders were passed preventing the photocopy people to print more

Cambridge University Press v. Becker

- it is an ongoing case in the Northern District of Georgia in which three publishers, Cambridge
University Press, SAGE Publications and Oxford University Press, are suing Georgia State University for
copyright infringement.

- The plaintiffs claimed that Georgia State University engaged in "systematic, widespread and
unauthorized copying and distribution of a vast amount of copyrighted works" through its e-reserves
system.

- Georgia State asserted that its system did not infringe copyright because its uses were fair use.

- the lower court held that in most cases of alleged infringement, it resulted in it being fair use

- the small excerpts Defendants used do not substitute for the full books from which they were drawn.
hence, use for research would come under the ambit of fair use.

Alberta (Education) v. Canadian Copyright Licensing Agency:

- considered whether the photocopying of textbook excerpts by teachers, on their own initiative, to
distribute to students as part of course materials is fair dealing

- The teachers had no ulterior motive in providing photocopies to their students.

- Moreover, instruction cannot be completely segregated from "research" and "private study" because
most students require the guidance of teachers to find the materials necessary for their research and private
study.

- A number of fairness factors are used to help courts determine if the dealing is "fair": the purpose,
character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the
work; and the effect of the dealing on the work. The person invoking the doctrine of “fair dealing” bears
onus to satisfy all aspects of the test.
 - There was no dispute that the photocopying was for the allowable purpose of "research" or "private
study" and it being within the ambit of fair use

Manipal v. Malini Mallya:

- argument was raised that literary work is different from dramatic work.

- The court observed that the difference between the two rests on the fact that a literary work allows
itself to be read while a dramatic work “forms the text upon which the performance of the plays rests”.

- The court went on to say that the Copyright Act, 1957 (s.52m) makes a distinction between a
‘literary work’ and a ‘dramatic work’.

- A dance performance will not be covered under literary work but will be covered under dramatic
work.

- The decision of the court rested on a will, which had bequeathed all rights in literary works to the
respondent and also, named her as the residuary legatee

- . The question related to copyright in respect of a form of dance ballet (yakshagana), which had been
developed by the testator.

- The court held that such rights (rights to seven verses of the ballet as well as its theatrical or dramatic
form) went to the respondent by virtue of her being the residuary legatee. Therefore, the court impliedly
differentiated between literary and dramatic works.

De minimus as a defence for infringement:

- is a Latin expression meaning about minimal things

- ourts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of
the copyrighted work was so insignificant as to be "de minimis"

India TV Independent News Service v. Yashraj Films

- There were two suits filed by Yash Raj Films.

 - In one suit, the Defendant used the first line of the lyrics of a hit song ‘Kajra Re Kajra Re Tere Kare
Kare Naina’ in an advertisement.

- In another suit, during a chat show, Vasundhara Das, a singer, during course of the chat sang nine
stanzas, either in full or in part, from her songs during the course of singing, clippings from the
cinematographic film concerned were displayed in the background.

- The defendants pleaded de minimus

- The factors commonly considered by Courts in applying de minimis are well listed:

- (i) the size and type of the harm

- (ii) the cost of adjudication

- (iii) the purpose of the violated legal obligation

- (iv) the effect on the legal rights of third parties

- (v) the intent of the wrongdoer

- The first suit was given the defence of de minimus

- in second case, one cannot separate from the life of the performer her performances and if in the
natural setting of a chat show she were to sing, as long as the singing duration is limited to a minute or so,
it would be a case of de minimis use

- In this case, the intention was to inform the viewers how Vasundhra Das was introduced into music
and what milestones she achieved in her life.

- Thus, unless at the evidence led to the contrary at the trial, prima facie, the defence of de minimis
would be available even to Vasundhra Das as also India TV in relation to the programme.

First Sale Doctrine: Exhaustion of rights

- based on the theory that the right holder can only control the first sale of the article and exercise the
rights on the same and cannot complain of the infringement on each and every subsequent sale of the same

- thus, it limits the distribution right by excluding control over the use of copies after they have been
put into circulation for the first time

Time Life International (Netherlands) v. Interstate Parcel Express Co.

 - importing of books from U.S to Australia for its sale there

- purchased books from American licensee but when imported into Australia, it was done without the
license Australian licensee

- the importer argued that he had an implied license to import and sell the books by the reason of sale
in America in the ordinary course of business without any restriction upon resale

- It was held that an importer would not obtain a license (express or implied) by importing the goods
from the American licensee.

Penguin Books v. India Book Distributors

- right of publication in India is given to Penguins under an exclusive license.

- the importation, sale and public distribution of American editions constitute infringement of
copyright of the exclusive licensee.

- the exclusive right of Penguins extends to even importation

- it is an infringement of copyright to knowingly import into India for sale or for hire infringing copies
even if they have been made with the consent of the owner

- Thus, an importer is always subject to the law of a particular country to which he happens to take the
books

- Thus, American books cannot be sold into India so as to defeat the rights of the exclusive licensee

Acts not constituting infringement can be summarised as follows:

a. Fair dealing for research or private study, criticism or review, reporting current events in newspaper/
magazine or by broadcast or in a cinematograph film

b. reproduction for judicial proceedings or for the exclusive use of members of a legislature, in a
certified copy, for educational purposes including as part of question papers or answers to such questions,
on of an unpublished work kept in a library for research and private study

c. performance in the course of activities of an educational institution, by an amateur club or society for
a non-paying audience or for the benefit of a religious institution

d. making or records on payment of royalty if the work had previously been recorded
 e. exhibition of the film in which the work has been recorded after the expiry of the term of copyright
in the film

Campbell v. Acuff-Rose Music

- case that established that a commercial parody can qualify as fair use

- Acuff-Rose Music refused to grant the band a license to 2 Live Crew but they nonetheless produced
and released the parody

- The Supreme Court held that 2 Live Crew's commercial parody may be a fair use within the meaning
of s. 107

- reiterated the same factors to conclude whether it is fair use or not i.e purpose and character of the
use, nature of the copyrighted work, substantial portion used in relation to copyright and effect of use on
potential market.

The Periyar Self Respect & Propaganda Institute v. Periyar Dravidar Kazhagam:

- Erode Venkatanaickar Ramaswamy popularly known as Periyar published a number of articles

related to economic, political, social issue newspaper ‘Kudiyarasu’

- The society was started by the plaintiff who assigned all his ‘movable property’ to the society.

- The society published some of his works stating that since he had assigned his rights, they now
belonged to him.

- the defendant left the society to start a new one

- he published the ‘Kudiyarasu’ 26 years later

- the court after examining s. 18 and 19 of the Copyright Act held that there was no documents to
show proper assignment

- the court used s. 52(1)(m) to justify his the defendant’s action stating that unless an author has
expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such
articles cannot constitute an infringement of copyright as per s. 52(1)(m)

Remedies:
 1. Civil Remedies:

- u/s. 55 civil remedy is provided for infringement of copyright

- the owner shall be entitled to all remedies by way of injunction, damages and accounts for the
infringement of a right

- If the defendant is able to prove that he was not aware or he had no reasonable ground for believing
that copyright subsisted, the plaintiff shall not be entitled to any remedy other than injunction

Rights of owner against persons possessing or dealing with infringing copies: s.58

the owner of the copyright shall not be entitled to any remedy in respect of the conversion of any infringing
copies, if the opponent proves:

a. he was not aware and had no reasonable ground to believe that copyright subsisted in the work of
which such copies are alleged to be infringing copies; or

b. that he had reasonable grounds for believing that such copies or plates do not involve infringement of
the copyright in any work

Restriction on remedies in the case of works of architecture: s.59

- where the construction of a building or other structure infringes

- or would infringe the copyright of the owner once completed,

- the owner shall not be entitled to an injunction to restrain the construction of such building

Remedy in the case of groundless threat of legal proceedings: s.60

- Where any person claiming to be the owner of copyright in any work, threatens any other person with any
legal proceedings or liability in respect of an alleged infringement of the copyright, the person aggrieved
may, institute a declaratory suit that the alleged infringement to which the threats related was not in fact an
infringement of any legal rights of the person making such threats and may in any such suit-

a. obtain an injunction against the continuance of such threats, and

b. recover such damages, if any, as he has sustained by reason of such threats

Criminal Remedies:

- 6 months to 3yrs

- fine - 50,000 to 2lakhs

- search and seizure of infringing goods

- delivery up of the infringing copies to the owner of the copyright

Who can institute a suit for infringement of copyright:

i. owner of a copyright/ co-owner

ii. assignee of the copyright

iii. legatee in case of testamentary disposition of the copyright

iv. an exclusive licensee if the owner of the copyright is made a joint plaintiff or defendant

v. in the case of anonymous or pseudo-anonymous work the publisher of the work

vi. a non-exclusive licensee provided he joins the owner of the copyright

Persons who may be sued are the infringers of the copyright

Anton Piller Order:

- in appropriate cases, the court may on an application by the plaintiff pass an ex parte order requiring
the defendant to permit the plaintiff accompanied by his attorney to enter his premises and take inspection
of relevant documents and articles and take copies thereof and remove them for safe custody.

- it is needed where there is a grave danger of relevant documents and infringing articles being
removed or destroyed so that the ends of justice will be defeated.

- In U.K it is called the Anton Piller Order (named after a plaintiff in a case where such an order was
first passed)

- it is similar to an ex parte interlocutory order

Issues in a suit for infringement of copyright:

i. Is the plaintiff entitled to file the suit

ii. Does copyright subsist in the work alleged to have been infringed

iii. Does what the defendant has done or proposes to do constitute infringement of copyright

iv. Does the defendants’ act come within the scope of any of the exemptions to the infringement

v. what remedies is the plaintiff entitled to

There are two types of damages available available to a successful plaintiff, one under s.55 for infringement
and the other under s.58 for conversion. He may also claim account of profits.