IPR by V K AHUJA

Date and Time: 09 July 2020 14:35:00 IST
Job Number: 120774054
Documents (100)
1. I. INTELLECTUAL PROPERTY RIGHTS (IPR)

Client/Matter: -None-
2. II. ABUSE OF INTELLECTUAL PROPERTY
3. III. WORLD INTELLECTUAL PROPERTY ORGANIZATION
4. CHAPTER 1 Introduction to Copyright
5. I. HISTORICAL DEVELOPMENT OF THE LAW OF COPYRIGHT
6. II. OBJECTIVES OF COPYRIGHT LAW
7. III. NATURE OF COPYRIGHT
8. IV. COPYRIGHT VIS-À-VIS PUBLIC INTEREST
9. (i) Limited duration of copyright
10. (ii) Doctrine of fair use
11. (iii) Non-voluntary licences (compulsory or statutory licences)
12. V. NEIGHBORING RIGHTS/RELATED RIGHTS
13. Reasons for recognising neighboring rights
14. CHAPTER 2 Subject-Matter of Copyright
15. I. ORIGINAL LITERARY WORKS
16. Test of originality
17. Doctrine of sweat of brow
18. Copyright in events
19. Does copyright subsist in ideas, plots or themes?
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20. Copyright in concept note
21. Slogans
22. Fictional characters
23. Abridgment
24. II. ORIGINAL COMPUTER PROGRAMMES
25. III. ORIGINAL DRAMATIC WORKS
26. Choreographic work
27. Scenic arrangement
28. IV. ORIGINAL MUSICAL WORKS
29. V. ORIGINAL ARTISTIC WORKS
30. Engraving
31. Painting
32. Sculpture
33. Drawing
34. Photograph
35. Graphic characters
36. Work of architecture
37. Work of artistic craftsmanship
38. VI. CINEMATOGRAPH FILMS
39. Do cinematograph films require to be original?
40. VII. SOUND RECORDINGS
41. Version recording
42. VIII. ADAPTATION OF THE WORK
43. I. OWNERSHIP IN LITERARY, DRAMATIC AND MUSICAL WORKS
44. Ownership - No copyright in ideas
45. Joint authorship
46. Author of compilation
47. Work made in the course of employment
48. ‘Contract of service’ and ‘contract for services’
49. Commissioned work
50. II. OWNERSHIP OF COPYRIGHT IN LECTURES, ADDRESSES, ETC.
51. III. OWNERSHIP IN ARTISTIC WORK
52. Work made in course of employment
53. IV. OWNERSHIP IN COMPUTER PROGRAMMES
54. V. OWNERSHIP IN CINEMATOGRAPH FILMS
55. Prospective owner of a cinematographic film
56. VI. OWNERSHIP IN SOUND RECORDINGS
57. VII. OWNERSHIP IN GOVERNMENT WORK
58. Government Work: Copyright Actvis-à-visInformation Technology Act
59. VIII. OWNERSHIP IN THE WORK OF PUBLIC UNDERTAKING
60. IX. OWNERSHIP IN THE WORK OF INTERNATIONAL ORGANISATION
61. X. TRANSMISSION OF COPYRIGHT IN MANUSCRIPT BY TESTAMENTARY DISPOSITION
62. CHAPTER 4 Economic Rights of Copyright Owners
63. I. COPYRIGHT: A BUNDLE OF RIGHTS
64. II. LITERARY, DRAMATIC AND MUSICAL WORKS
65. Reproduction of work in any material form
66. Reproduction of work in computers
67. Reproduction of compilated works
68. Reproduction in relation to dramatic works
69. Reproduction in relation to musical works
70. Issue of copies to the public
71. Communication to the public
72. Public
73. To make any cinematograph film or sound recording
74. Adaptation of the work
75. Resale share right in original copies
76. III. COMPUTER PROGRAMME
77. Reproducing or copying the computer programme
78. Issue of copies to the public
79. Right of rental
80. Performance or communication of work in public
81. Making cinematograph film or sound recording of the computer programme
82. Making adaptation or translation of computer programme
83. IV. ARTISTIC WORK
84. Right of reproduction
85. Resale share right in original copies
86. V. CINEMATOGRAPH FILM
87. Making of copies
88. Right to sell or rental
89. Communication of the film to public
90. VI. SOUND RECORDINGS
91. Making a copy
92. Rental right and communication rights
93. Copyright in designs registered or capable of being registered under the Designs Act, 2000
94. Overlapping between an artistic work and a design
95. No copyright except as provided in this Act
96. I. INTRODUCTION
97. II. KINDS OF MORAL RIGHTS
98. (i) Right of paternity (Droit de paternite)
99. (ii) Right of integrity (Droit de respect de l’oeuvre)
100. III. MORAL RIGHTS IN INDIA
I. INTELLECTUAL PROPERTY RIGHTS (IPR)
Vk Ahuja: Intellectual Property Rights In India, 2e 2015
V K AHUJA
Vk Ahuja: Intellectual Property Rights In India, 2e 2015 > Vk Ahuja: Intellectual Property Rights
In India, 2e 2015 > INTRODUCTION
INTRODUCTION
I. INTELLECTUAL PROPERTY RIGHTS (IPR)
Intellectual property is the creative work of the human intellect. A right to intellectual property is an
invisible/intangible right to a product of a man’s brain such as a new invented product i.e. property of the mind as
against a right for material things/tangibles i.e. goods such as a right to the invented goods. An intellectual property
is at times described as ‘knowledge goods’.
The main motivation for its protection is to promote the progress of science and technology, arts, literature and
other creative works and to encourage and reward creativity. Nations give statutory expression to the economic
rights of creators in their creations and to the rights of the public in accessing those creations. This is instrumental
in promoting creativity and dissemination and application of its results. The economic and technological
development of a nation will come to a halt if no protection is given to intellectual property rights. Therefore, the
contribution of intellectual property is sine qua non for the industrial and economic development of a nation. The
prosperity achieved by developed nations is, to a large extent, the result of exploitation of their intellectual property.
Intellectual property relates to pieces of information which can be incorporated in tangible objects at the same time
in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but
in the information reflected in those copies. According to Article 2(viii) of the Convention Establishing the World
Intellectual Property Organisation (WIPO) 1967, intellectual property includes right relating to (i) literary, artistic and
scientific works; (ii) performance of performing artists, phonograms and broadcasts; (iii) inventions in all fields of
human endeavour; (iv) scientific discoveries; (v) industrial designs; (vi) trademarks, service marks and commercial
names and designations; (vii) protection against unfair competition; and all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic fields. The intellectual property thus, includes copyright, trade
marks, service marks, geographical indications, patents, utility models, plant varieties, industrial designs, trade
secret, layout design of integrated circuits, etc. Intellectual property is usually divided into two branches - (i)
copyright and (ii) industrial property.
Intellectual property has assumed central importance throughout the world in the recent past. The intellectual
property, which was mainly the subject matter of the World Intellectual Property Organization (WIPO) has also
become a part of the World Trade Organization (WTO) regime in 1995. The Agreement on Trade-related Aspects of
Intellectual Property Rights including Trade in Counterfeit Goods (TRIPs Agreement) of the WTO Treaty evolved
minimum standards for the protection of intellectual property for the member states to incorporate in their municipal
laws.
End of Document
II. ABUSE OF INTELLECTUAL PROPERTY
V K AHUJA
INTRODUCTION
II. ABUSE OF INTELLECTUAL PROPERTY
Intellectual property laws confer exclusive rights on the owners of intellectual property. These rights are not
absolute but subject to such conditions which have been laid down in the law. The intellectual property laws and
other laws such as Competition Act, 2002 ensure that the owners of such intellectual property do not abuse their
exclusive rights.
The TRIPS Agreement also recognizes the fact that some licensing practices or conditions pertaining to intellectual
property rights which restrain competition may have adverse effects on trade and may impede the transfer and
dissemination of technology. The TRIPS Agreement enables Members to specify licensing practices or conditions in
their legislation that may constitute an abuse of intellectual property rights having an adverse effect on competition
in the relevant market. The Members may adopt appropriate measures to prevent or control such practices, which
may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive
package licensing.
Exclusive grantback arrangements are those arrangements under which a licensee is required to extend to the
licensor of intellectual property the right to use the licensee’s improvements to the licensed technology.
Where the licensor forces licensee to take additional license(s) for patent(s)/technology as a condition of license
even if it is not required by licensee, such license is called as coercive package license.
In India, section 3 of the Competition Act, 2002 prohibits anti-competitive agreements. Section 3(4) prevents
enterprises or persons at different stages or levels of the production chain in different markets, to enter into
agreements in respect of production, supply, distribution, storage, sale of price of, or trade in goods or provision of
services, if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.
These agreements shall include the following -
End of Document
III. WORLD INTELLECTUAL PROPERTY ORGANIZATION
V K AHUJA
INTRODUCTION
III. WORLD INTELLECTUAL PROPERTY ORGANIZATION
The World Intellectual Property Organization (WIPO) is an international organization which was established by the
“Convention Establishing the World Intellectual Property Organization.” The Convention was signed at Stockholm in
1967 and entered into force in 1970. Since 1974, it had the status of a specialized agency of the United Nations.
The origin of WIPO can be traced back to the adoption of Paris Convention and Berne Convention in 1883 and
1886 respectively. Both the Conventions provided for the establishment of international secretariats and were
placed under the supervision of the Swiss Federal Government. These secretariats were subsequently united and
known as BIRPI. WIPO became successor to BIRPI.
Being a specialized agency, WIPO is subject to the competence of the United Nations and its organs, and is
responsible for taking appropriate action in accordance with its basic instrument, treaties and agreements
administered by it. WIPO is dedicated to promote creativity and innovation by ensuring that the rights of creators
and owners of intellectual property are protected worldwide, and that inventors and authors are thus recognized and
rewarded for their ingenuity.
End of Document
CHAPTER 1 Introduction to Copyright
V K AHUJA
In India, 2e 2015 > CHAPTER 1 Introduction to Copyright

Copyright constitutes an essential element in the development process of a country. The enrichment of the national
cultural heritage depends directly on the level of protection afforded to literary, dramatic, musical and artistic works,
cinematograph films and sound recordings. The higher the level, the greater the encouragement for authors to
create; the greater the number of a country’s intellectual creations, the higher its renown. In the final analysis,
encouragement of intellectual creation is recognised as one of the basic prerequisites of all social, economic and
cultural development.
The concepts of “copyright” and “neighboring rights” or “related rights” have assumed significance in the context of
contemporary, scientific, economic, social, political and legal environment not only in India but also in the entire
world. Technological innovations e.g. computers, audio recording, video recording, reprography, cable television,
satellite broadcasting and most recently internet have posed challenges to copyright laws from time to time and
forced the nations to amend their laws.
The copyright law, today, not only protects the rights of the copyright owner and neighboring rights but also deals
with the subject of public interest and tries to strike a balance between the two in this digital environment. The
copyright law, thus, covered a long journey from its earlier days when it used to protect only literary and artistic
works, and has entered a new world full of technological innovations.
End of Document
I. HISTORICAL DEVELOPMENT OF THE LAW OF COPYRIGHT
V K AHUJA

Tracing back the historical development of copyright protection of the authors work, the idea of copyright protection
only began to emerge with the invention of printing, which made it possible for the literary works to be duplicated by
mechanical processes. Prior to that, hand copying was the sole mean of reproduction. Following Gutenberg’s
invention of printing press in 1436 in Germany, the necessity of protecting printers and booksellers was recognised
there. Consequently, German Principalities granted certain privileges to printers and publishers and also authors.
The art of printing spread quickly in Europe. King Richard III in 1483 allowed foreigners to import manuscripts and
books into England and print them there. As a result of this, much of the book trade came in the hands of
foreigners. However, this freedom enabled England to emerge as a major center of printing trade in Europe. The
spread of this technological innovation led to creation of a class of intermediaries who made the initial investment in
bringing out a book i.e. printers who at the same time also functioned as booksellers. They were called ‘Stationers’
in England.1
In 1523 and 1528, restrictions were introduced by Henry VIII prohibiting the importation of books altogether in 1533
on the ground that there were enough printers and book-binders in England. In 1529, a system of privileges was set
up for printing books. Henry VIII made the stationers’ guild into a company called Stationers’ Company comprising
97 London publishers. In 1556, a Royal Charter was granted to the Stationers’ Company which provided the right to
administer a system of private registration of all published works. Thus all books, which were to be printed or
reprinted, had to be entered in the register of the Company before being published. The company had powers to
deal with infringement by seizure and destruction of illegal copies.2
In 1662, the Licensing Act was passed in England which prohibited the printing of any book which was not licensed
and registered with the Stationers’ Company.3 This was the first clear law which was aimed at protecting literary
copyright and checking piracy. It provided for the seizure and confiscation of the unauthorised copies and also for
imposing the penalty of fine on their printers. The Act was short lived and repealed in 1679.
With the onward march of civilization, copyright assumed more significance. It was realised that the role played by
the authors and publishers in the development of society by the creation and dissemination of their works was
required to be supported, encouraged and adequately rewarded. As a result, the Act of Queen Anne was passed in
1709 in the United Kingdom. This was the world’s first copyright law which laid down three basic rules. Firstly, the
authors of books not yet printed were to have the sole right of printing for 14 years from the date of publication.
After the expiry of the 14 years term, the sole right of printing was returned to the author, if then living, for another
term of 14 years. Secondly, infringers would forfeit the infringing books found in their custody and pay a fine of a
penny for every sheet. Half went to the Crown and the other half to the plaintiff or any person who sued for it.
Thirdly, no suit could be brought unless the title of the book had been entered before publication in the ‘Register
Book’ of the Company of Stationers.
Prior to 1709, the copyright was recognised by the common law. After the enactment of Statute of Anne also, the
common law copyright continued to subsist in perpetuity but was lost on publication. A number of statutes were
adopted thereafter to give effect to the copyright protection. In 1911, the Copyright Act was adopted which
substantially codified the law and repealed some twenty legislations on the subject. Common law copyright was
also abolished by the Copyright Act, 1911. However, the Act provided that this should not abrogate any right or
jurisdiction to restrain a breach of trust or confidence.
Page 2 of 2
In United States, the revolution of 1776 gave a strong nationalistic flavour to the English concept of copyright and in
1790 the Copyright Act was passed. The concept of copyright was ultimately permeated the whole English
speaking world.
In India, the earliest statutory law on copyright was Indian Copyright Act of 1847, which was enacted during the
East India Company’s regime. The Act passed by Governor-General of India affirmed the applicability of English
copyright law to India.4 The Copyright Act, 1911 while repealing earlier statutes on the subject was also made
applicable to all the British colonies including India.
In 1914, the Indian Copyright Act was enacted which modified some of the provisions of Copyright Act, 1911, and
added some new provisions to it to make it applicable in India. The Indian Copyright Act, 1914 remained applicable
in India until it was replaced by the Copyright Act, 1957.5
1 Stephen M. Stewart, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS (London, 1983), p.20.
2 Ibid.
3 E.P. Skone James, et. al., COPINGER AND SKONE JAMES ON COPYRIGHT (London, 1991), para 1-24.
4 Kala Thairani, HOW COPYRIGHT WORKS IN PRACTICE (Bombay, 1996), p.2.
5 The Copyright Act, 1957 came into force on 21-01-1958, vide Notification No. SRO 269, Gazette of India, Ext. Part II, s.
3(ii), p. 167.
End of Document
II. OBJECTIVES OF COPYRIGHT LAW
V K AHUJA

The primary objective of copyright is not to reward the labour of authors, but to promote the progress of science and
useful arts. To this end, copyright assures authors the right to their original expression but encourages others to
build freely upon the ideas and information conveyed by a work.6 The objectives of copyright law are mainly twofold.
Firstly, the copyright law is developed by the nations to assure authors, composers, artists, designers and other
creative people as well as the film producers and producers of sound recordings, who risk their capital in putting
their works before the public, the right to their original expression.7 This is done by giving to the author, or in some
cases his employer, certain exclusive rights to enjoy the benefits of the created subject matter for a limited period of
time. These exclusive rights include e.g. the right to reproduce the work in any material form whatsoever; to issue
copies of the work to the public; to perform the work in public; to make any cinematograph film or sound recording
of the work; to make any adaptation of the work etc. The exclusive rights are granted to copyright owner in his work,
so that he could exploit his work to the exclusion of others for a limited period of time i.e. in India, sixty years after
the death of the author.8 During this period, persons other than the copyright owner are not allowed to make
themselves enrich at the cost of the labour of copyright owner which he has put in producing the work.
Apart from the aforesaid rights, which are known as economic rights, the copyright law also provides moral rights to
the author. These are (i) right to claim authorship of the work; and (ii) the right of integrity. Since the author is the
creator or maker of the work which is the expression of his personality, he has a right to prevent any injury or
mutilation of his intellectual offspring.
Secondly, the copyright law encourages others to build freely upon the ideas and information conveyed by a work. It
also allows people to make some free uses of the copyright material. The list of these free uses has been laid down
in the Copyright Act, 1957.9The reason for having provisions relating to free uses in the Act is to strike a balance
between the interests of the copyright owner and the interests of the society at large. Thus, the private rights of the
copyright owner have been curtailed to a limited extent in the interest of society.
In Sulamangalam R. Jayalakshmi and Another v. Meta Musicals, Chennai and Others ,10 the Madras High Court
stated that “copyright law is to protect the fruits of a man’s work, labour, skill or test from annexation by other
people.” InAamir Raza Husain and Another v. Cinevistaas Limited and Others ,11 the Bombay High Court stated that
“the idea in providing the copyright a statutory protection is to encourage art and originality and not to stifle it.”12
In Eastern Book Company v. D.B. Modak ,13 the Supreme Court held that copyright is a right to stop others from
exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance
between the interests and rights of the author and that of the public in protecting the public domain, or to claim the
copyright and protect it under the copyright statute. One of the key requirements is that of originality which
contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting
the matters in public domain. It is a well-accepted principle of copyright law that there is no copyright in the facts per
se, as the facts are not created nor have they originated with the author of any work which embodies these facts.
The issue of copyright is closely connected to that of commercial viability, and commercial consequences and
implications.
Page 2 of 2
6 Eastern Book Company v. D.B. Modak , (2008) 1 SCC 1 [LNINDU 2007 SC 1] : AIR 2008 SC 809 [LNINDU 2007 SC
1]: 2008 (36) PTC 1 (SC) .
7 In Holy Faith International and Others v. Dr. Shiv K. Kumar , AIR 2006 AP 198 [LNIND 2005 AP 1264]: 2006 (33) PTC
456 (AP) at p. 463, the court observed that the primary function of a copyright law is to protect the fruits of a man’s
work, labour, skill or test from being taken away by other people. In S. Mahalingam v. Vasan Publications Pvt. Ltd. ,
2013 (55) PTC 178 (Mad) (DB) at p. 182, the court stated that the object of the Copyright Act is to protect the author of
the work from the possible fraudulent reproduction of the work without his permission. The author being the creator of
the work, by using his talents, skill and knowledge must be in a position to enjoy the benefits of such creation.
8 Section 22, Copyright Act, 1957.
9 Section 52 id.
10 Sulamangalam R. Jayalakshmi and Another v. Meta Musicals, Chennai and Others , AIR 2000 Mad 454 [LNIND 2000
MAD 516]: 2000 (20) PTC 681 at p. 694. In Time Warner Entertainment Company v. RPG Netcom , 2007 (34) PTC 668
(Del) (DB) at p. 672, the court stated that “the object of copyright law is to prevent copying of physical material and form
in the field of literature and art.”
11 Aamir Raza Husain and Another v. Cinevistaas Limited and Others , 2003 (27) PTC 425 (Bom) (DB) .
12 Id. at p. 451.
13 Eastern Book Company v. D.B. Modak , (2008) 1 SCC 1 [LNINDU 2007 SC 1] : AIR 2008 SC 809 [LNINDU 2007 SC
1]: 2008 (36) PTC 1 (SC) .
End of Document
III. NATURE OF COPYRIGHT
V K AHUJA
III. NATURE OF COPYRIGHT

Copyright is an incorporeal property in nature. The property in the work is justified by the fact that the right owner
has created or made it. As he is the owner of the property, he can dispose of it by outright sale (assignment of his
right) or by licensing. Since the subject of the property is incorporeal, it gives a dominium over the work, a right in
the work erga omnes. The property is an ‘intellectual property’ in the sense that it originates in the mind of persons
before it is reduced to material form. However, it is noteworthy that ideas and thoughts are not protected which
merely exist in a man’s brain, as ideas and thoughts are not works under the copyright law. But once reduced to
writing or other material form, the result becomes a work worthy of protection.
Further, copyright is a bundle of exclusive rights. It is called as a negative right which means that the right owner
can prevent all others from copying his work, or doing any other acts which according to copyright law can only be
done by him.14 This is also referred to as a monopoly as it is recognised that the produce of a person’s skill and
labour is his property. However, the term “monopoly” is misleading. The reason is that if it can be shown that two
precisely similar works were in fact produced wholly independently of one another, there can be no infringement of
copyright by one of the other.
The exclusive rights in copyrighted work are limited in time. Unlike physical property, which lasts as long as the
object in which it is vested, copyright subsists for a limited period of time. After expiration of this period, the work
passes into the “public domain”. In other words, it becomes public property and can be freely used by anyone
without any hindrance. Thus, exclusive rights in copyrighted work for a limited period serve public interest.
14 See also Time Warner Entertainment Company v. RPG Netcom , 2007 (34) PTC 668 (Del) (DB) at p. 672 .
End of Document
IV. COPYRIGHT VIS-À-VIS PUBLIC INTEREST
V K AHUJA
In India, 2e 2015 > CHAPTER 1 Introduction to Copyright > IV. COPYRIGHT VIS-À-VIS PUBLIC
INTEREST
IV. COPYRIGHT VIS-À-VIS PUBLIC INTEREST

It is sine qua non for the copyright system of a country to strike a balance between the interests of the copyright
owner and the reasonable demands of the organised society. The basic limitations which are peculiar to copyright
and which flow directly from the balance between the interests of copyright owner and the public, can be found in
the international conventions on copyright and copyright laws of nations. So far as the interests of the copyright
owner are concerned, they are generally assigned by the author to an entrepreneur in a large majority of cases
such as a publisher of books or music, a film producer or a record producer. Generally, the owner of copyright in a
work is its author. However, the ownership of copyright may be assigned by him to some other person. Thus, the
entrepreneur to whom the ownership of copyright or some other rights have been assigned, uses his judgement,
both artistic and commercial, and in the case of film producer or the record producer adds his own artistic and
technical input. Once again, it is the entrepreneur who carries the risk of failure and reaps the profit of success. He
also pays for the marketing and advertising of the work in its fixed form. It is, therefore, the rationale of copyright
that if he is to recoup his investment and make a profit, he has to be protected against unauthorised reproduction. If
he were not so protected, the ‘pirate’ could almost invariably produce copies at a much lower price. In book
publishing, the pirate’s price will be lower, but he still has substantial costs. In record production the pirated product
is sold at a much lower price because the pirate only bears the cost of manufacture and distribution and saves both
copyright royalties and recording costs. But in film production the pirate’s costs are only a small fraction because of
the very high cost of making the original film.
The copyright protection therefore, is sine qua non for the protection of economic rights of the author/copyright
owner. At the same time, it is also indispensable to confer certain rights on the public in the copyrighted work of the
author. This is also known as the limitations of copyright, which are necessary to keep the balance between two
conflicting interests; the interests of the copyright owner by rewarding him and the public interest. As copyright is a
creature of statute, these limitations are therefore statutory limitations and are mainly of three kinds.
End of Document
(i) Limited duration of copyright
V K AHUJA
INTEREST

(i) Limited duration of copyright
The first statutory limitation is the limited duration of copyright in a work. The term of copyright protection is limited
to the life of the author and sixty years after his death (usually referred to as ‘sixty years pma’ i.e. post mortem
auctoris). After expiry of the copyright term, the work falls into public domain. In other words, after the expiry of
copyright term, any person can use the copyrighted work without any authorisation or permission and without
paying any fee or royalty.
The term, in fact, is a compromise between those who argue that copyright should be permanent i.e. last as long as
the work is used because it is appreciated and enjoyed by the public, and those who argue that it is a personal right
and should terminate with the life of the author so that the public can enjoy its unrestricted use after his death. The
concept of public interest, thus, gives rise to the notion that eventually the work should enrich the national culture
and become public property after a fixed period i.e. when the term of copyright in a work expires.
End of Document
(ii) Doctrine of fair use
V K AHUJA
INTEREST

(ii) Doctrine of fair use
The second statutory limitation on the rights of copyright owner is fair dealing with his work. Under copyright law,
some uses of protected works are free. These are usually referred to in general terms as ‘fair use’ or ‘fair dealing’.
The free uses can be made e.g. for private study and research, teaching, criticism, reporting current events, etc. 15
These uses have elaborately been discussed in Chapter 14.
15 In India, section 52 of the Copyright Act, 1957 lays down a list of permitted uses.
End of Document
(iii) Non-voluntary licences (compulsory or statutory licences)
V K AHUJA
INTEREST

(iii) Non-voluntary licences (compulsory or statutory licences)
The third statutory limitation on the rights of copyright owner is grant of non-voluntary licences in accordance with
copyright law. Thus, in some cases the right owner is not given an absolute right subjecting all uses of the protected
work to his prior authorisation, but only the right to equitable remuneration for each use. The non-voluntary licence
may either be a compulsory licence or a statutory licence.
Statutory licence is ‘a licence under which the protected works can be freely used on condition that the user will pay
a fee, fixed by the competent authority, to the body designated by that authority and distributed in accordance with
the rules established by the latter’.16
Compulsory licence, on the other hand, is ‘a licence requiring the copyright owner to grant the necessary
authorisation without, however, depriving him of his right to negotiate the terms of the authorisation, with the proviso
that the administrative or judicial authorities (civil courts or special jurisdictions) would fix the amount of
remuneration if no amicable agreement can be reached between the parties’.17
The essential difference between statutory licence and compulsory licence is that in the case of the former, the right
of the licensee to use the work derives directly and solely from the statute which also regulates the equitable
remuneration, whereas in the case of latter, the user is not entitled to use the work against the payment of a
standard royalty, he must negotiate with the author or with the collecting society representing him but these are
bound by law to permit the use of the work against payment of an equitable remuneration.
16 Report of the Sub-Committee of the Intergovernmental Committees, Copyright (1978) p.208, paras 48 and 49.
17 Ibid.
End of Document
V. NEIGHBORING RIGHTS/RELATED RIGHTS
V K AHUJA
In India, 2e 2015 > CHAPTER 1 Introduction to Copyright > V. NEIGHBORING RIGHTS/RELATED
RIGHTS
V. NEIGHBORING RIGHTS/R ELATED RIGHTS

The concept of “neighboring rights” which is also known as “related rights” emerged primarily due to technological
developments which took place since the second half of the nineteenth century. The recognition to these rights at
international level was, however accorded in 1961 by the Rome Convention.
The term “neighboring rights” generally covers three kinds of rights: the rights of performing artists in their
performances, the rights of producers of phonograms in their phonograms, and the rights of broadcasting
organizations in their radio and television programmes. Protection of those who assist intellectual creators in
communicating the message of the author or creator of a work and help to disseminate works intended by their
creators and authors to be conveyed to, and enjoyed by the public at large, is sought to be provided by what are
known as neighboring rights or rights neighboring on copyright.
End of Document
Reasons for recognising neighboring rights
V K AHUJA
In India, 2e 2015 > CHAPTER 1 Introduction to Copyright > V. NEIGHBORING RIGHTS/RELATED
RIGHTS

Reasons for recognising neighboring rights
The reason for protecting neighboring rights is that since works of human intellect are created in order to be
disseminated among as large a clientele as possible and this can not always be done by the author himself, for it
often requires intermediaries whose professional capability gives to the works those forms of presentation that are
appropriate to make them accessible to a wide public, all persons, therefore, who make use of literary, artistic,
dramatic, or musical works in order to make them publicly accessible to others require their own protection against
the illegal use of their contributions in the process of communicating the work to the public. These persons, as
discussed above, are generally performing artists, record producers and broadcasters.
The rights of performers are recognised because their creative intervention is necessary to give life, e.g. to musical
works, dramatic and choreographic works, and motion pictures. The rights of producers of phonograms are
recognised because their creative, financial and organizational resources are necessary to make recorded sounds
available to the public in the form of commercial phonograms. The rights of broadcasting organizations are
recognised because of their role in making works available to the public and in light of their justified interest in
controlling the transmission and retransmission of their broadcasts.18
The rights of these persons are referred to as neighboring rights because they have developed in parallel with
copyright, and the exercise of these rights is very often linked with the exercise of copyright. The development of
technology resulted in the need not only to ensure protection of literary, dramatic, musical and artistic works by
means of copyright, but also to establish effective protection for the various intermediaries associated with the
dissemination and broadcasting of works.
18 Sanjay Tandon, Neighboring Rights, in A.K. Koul and V.K. Ahuja (ed.), LAW OF COPYRIGHT: FROM GUTENBERG’S
INVENTION TO INTERNET (Delhi, 2001), pp. 116-17.
End of Document
CHAPTER 2 Subject-Matter of Copyright
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright

According to section 13 of the Copyright Act, 1957, copyright subsists in the following works: (a) original, literary,
dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings. Section 13(a) protects
original work whereas section 13(b) and (c) protect derivative works. It provides for commercial manifestation of
original work and the fields specified therein.1Section 13 of the Act stipulates that right to claim copyright is subject
to the provisions of the said section and the other provisions of the Act and does not exist de hors and outside the
Act. It is the right created under the statute and no right outside the said Act can be claimed.2
In Star India Pvt. Ltd. v. Piyush Agarwal & Ors. ,3 the court stated that though the definition of ‘work’ in section 2(y)
did not include the performer’s right, however, it had necessarily to be read with section 38 which provided for a
performer to have a copyright in his performance and therefore performance was a work in which copyright was
created under the Act. Thus, copyright could exist in those works which were found on a simultaneous reading of
sections 13 and 38 of the Copyright Act, 1957.4
1 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. & Others , (2008) 13 SCC 30 [LNIND 2008 SC
1247] : 2008 (37) PTC 353 (SC) at p. 377 .
2 Time Warner Entertainment Company, L.P. & Others v. RPG Netcom , 2007 (34) PTC 668 (Del) (DB) at p. 672 .
3 Star India Pvt. Ltd. v. Piyush Agarwal & Ors. , 2014 (58) PTC 169 (Del) at p. 175 .
4 Section 38 is discussed in Chapter IX.
End of Document
I. ORIGINAL LITERARY WORKS
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > I. ORIGINAL LITERARY WORKS

Copyright subsists in an original literary work. It is not necessary that the work should be the expression of the
original or inventive thought, as the Copyright Act is not concerned with the originality of ideas, but with the
expression of thought, and in the case of a literary work, with the expression of thought in print or writing. Originality
for the purpose of copyright law relates to the expression of thought. Such expression need not be copied from
another work but must originate from the author.5
An original literary work, therefore, is the product of the human mind which may consist of a series of verbal or
numerical statements, not necessarily possessing aesthetic merit, capable of being expressed in writing, and which
has been arrived at by the exercise of substantial independent skill, creative labour, or judgment.
The expression “literary work” means not only such work which deals with any particular aspect of literature in prose
and poetry but also indicates work which is literature i.e. anything in writing which could be said to come within the
ambit of literary work.6
The Copyright Act, 1957, provides an inclusive definition of literary work. It defines literary work to include ‘computer
programmes, tables and compilations including computer databases’.7
An original literary work may enjoy protection even though it is devoid of any aesthetic merit. Peterson J. stated in
University of London Press Ltd. v. University Tutorial Press Ltd. ,8 that the words ‘literary work’ covered work which
was expressed in print or writing, irrespective of the question whether the quality or style was high.9 The word
“literary” seemed to be used in a sense somewhat similar to the use of the word “literature” in political or
electioneering literature and referred to written or printed matter.
In Eastern Book Company v. D.B. Modak ,10 the Supreme Court stated that broadly speaking, there would be two
classes of literary works: (a) primary or prior works: these are the literary works not based on existing subject-
matter and, therefore, would be called primary or prior works; and (b) secondary or derivative works: these are
literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are
called derivative works or secondary works.
5 See Camlin Private Limited v. National Pencil Industries , 96 (2002) DLT 8 : 2002 (24) PTC 349 (Del) (DB) .
6 Shyam Lal v. Gaya Prasad , AIR 1971 All 192 . See also Sulamangalam R. Jayalakshmi and Another v. Meta Musicals,
Chennai and Others , AIR 2000 Mad 454 [LNIND 2000 MAD 516]: 2000 (20) PTC 681 at p. 694 .
7 Section 2(o),Copyright Act 1957.
8 University of London Press Ltd. v. University Tutorial Press Ltd. , (1916) 2 Ch 601.
9 Id. at p. 608.
10 Eastern Book Company v. D.B. Modak , AIR 2008 SC 809 [LNINDU 2007 SC 1]: 2008 (36) PTC 1 : (2008) 1 SCC 1
[LNINDU 2007 SC 1].
Page 2 of 2
End of Document
Test of originality
V K AHUJA
II. ORIGINAL COMPUTER PROGRAMMES

Test of originality
For a work to be original, it is important that it should not have been copied from another work. The word “original”
does not mean that the work must be the expression of original or inventive thought. Copyright Act is not concerned
with the originality of ideas, but with the expression of thought, and, in the case of “literary work”, with the
expression of thought in print or writing. The originality which is required relates to the expression of the thought.
But the Act does not require that the expression must be in an original or novel form, but that the work must not be
copied from another work - that it should originate from the author.11
It was held in Macmillan v. Cooper ,12 that it was the product of the labour, skill and capital of one man which must
not be appropriated by another, not the elements, the raw materials, upon which the labour and skill and capital of
the first had been expended. To secure copyright for the product, it was necessary that the labour, skill and capital
should have been expended sufficiently to impart to the product some quality or character which the raw material
did not possess, and which differentiated the product from the raw material. What was the precise amount of
knowledge, labour, judgement or literary skill or taste which the author of any book or other compilation must
bestow upon his composition in order to acquire copyright in it could not be defined in precise terms. Thus, a work
may be ‘original’ if the author has applied his skill or labour, even though he has drawn on knowledge common to
himself and others or has used already existing material. A mere copyist does not obtain copyright in his copy.
In Rupendra Kashyap v. Jiwan Publishing House ,13 the court held that the word “original” in section 13 of the
Copyright Act, 1957, did not imply any originality of ideas but merely meant that the work in question should not be
copied from some other work and should originate from the author being the product of his labour and skill. Thus,
the term “original” in reference to a work means that the particular work “owes its origin” to the author. Original
simply means that the work has independently been created by the author and has not been copied from someone
else’s works.
As regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that
has been involved in making the compilation. The words “literary work” cover work which is expressed in print or
writing irrespective of the question whether the quality or style is high. The commonplace matter put together or
arranged without the exercise of more than negligible work, labour and skill in making the selection will not be
entitled to copyright.14 In Dr. Reckeweg & Co. GMBH v. Adven Biotech Private Ltd. 15 also, the court stated that in a
derivative work, the standard of creativity required to qualify as a work in which copyright subsisted was higher than
the standard required in cases of primary works. Dismissing the application for interim relief, the court stated that
the document was merely a compilation as the plaintiff had failed to demonstrate how they had employed any skill,
judgement and labour in the manner in which the sequencing was done and the technique or criteria employed to
place the medicines in that particular sequence.
In case of dictionary, a man is not allowed to appropriate for himself the arrangement, sequence, order, idioms, etc.
employed by another, using his brain, skill and labour.
Page 2 of 2
Test of originality
11 University of London Press Ltd. v. University Tutorial Press Ltd. (1916) 2 Ch. D. 601. In Rediff.com India Ltd. v. E-
Eighteen.com Ltd. , 2013 (55) PTC 294 (Del) at p. 312, the court stated that the Copyright Act was not concerned with
the original idea, but with the expression of thought. Copyright had nothing to do with originality of the idea, or literary
merit. Copyright subsists in work which is created by the author by his own skill, labour and investment of capital. It
could be a derivative work, which has a flavour of creativity.
12 Macmillan v. Cooper , AIR 1924 PC 75 .
13 Rupendra Kashyap v. Jiwan Publishing House , (1996) PTC 439 (Del) .
[LNINDU 2007 SC 1]. In Periyar Self Respect Propaganda Institution v. Periyar Dravidar Kazhagam , 2010 (44) PTC
422 (Mad) (DB) at p. 441, the court stated that either as a collective work or a compilation, there should exist something
new of the collected literary work which was already existing. In other words, while either collecting the set of literary
works by the author or compiling the same, either there should be some special role played by the participants of the
collective works or the compiliant by way of editing or some other creativity in it. Therefore, a mere compilation of
existing literary works will not by itself cloth the person who claims to have compiled or collected it, with any right, much
less copyright.
15 Dr. Reckeweg & Co. GMBH v. Adven Biotech Private Ltd. , 2008 (38) PTC 308 (Del) .
End of Document
Doctrine of sweat of brow
V K AHUJA

The doctrine of “sweat of brow” has been rejected in the United States. The Supreme Court of United States held in
Feist Publications Inc. v. Rural Telephone Service Co. Inc. ,16 that the sine qua non of copyright is originality. To
qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright law,
means only that the work was independently created by the author (as opposed to copied from other works), and
that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low; even a
slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative
spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be
original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.
The Court further held that no one can claim originality as to the facts. This is because facts do not owe their origin
to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a
particular fact has not created the fact; he or she has merely discovered its existence. Factual compilations, on the
other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in
what order to place them, and how to arrange the collected data so that they may be used effectively by readers.
These choices as to selection and arrangement, so long as they are made independently by the compiler and entail
a minimal degree of creativity, are sufficiently original. Thus, if the compilation author clothes facts with an original
collocation of words, he or she may be able to claim a copyright in this written expression.
In Eastern Book Company v. D.B. Modak ,17 the Supreme Court held that only the compiler’s selection and
arrangement may be protected. The raw facts may be copied at will. The Court rejected the doctrine of the “sweat
of the brow” as this doctrine had numerous flaws, the most glaring being that it extended copyright protection in a
compilation beyond selection and arrangement—the compiler’s original contributions—to the facts themselves. A
subsequent compiler was not entitled to take one word of information previously published, but rather had to
independently work out the matter for himself, so as to arrive at the same result from the same common sources of
information. “Sweat of the brow” courts thereby eschewed the most fundamental axiom of copyright law that no one
may copyright facts or ideas. The “sweat of the brow” doctrine flouted basic copyright principles and it creates a
monopoly in public domain materials without the necessary justification of protecting and encouraging the creation
of writings by authors.
Originality requires only that the author makes the selection or arrangement independently and that it displays some
material with minimal level of creativity. While a copy of something in the public domain will not, if it be merely a
copy, support a copyright, a distinguishable variation will. To support a copyright there must be at least some
substantial variation, not merely a trivial variation such as might occur in the translation to a different medium.18
The United States Court of Appeal held in Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc. ,19
that individual components of compilation are generally within the public domain and thus available for public. There
are three requirements for a compilation to qualify for copyright protection: (1) the collection and assembly of pre-
existing data; (2) selection, coordination or arrangement of the data; and (3) the resulting work that comes into
being is original, by virtue of the selection, coordination or arrangement of the data contained in the work. For
originality, the work is not required to contain novelty.
Page 2 of 2
The doctrine of “sweat of the brow”, rewarded compilers for their efforts in collecting facts with a de facto copyright
to those facts and this doctrine would prevent, preclude the author absolutely from saving time and effort by
referring to and relying upon prior published material. It extended copyright protection in compilation beyond
selection and arrangement—the compiler’s original contribution—to the facts themselves drawn on “sweat of the
brow”. The Court discarded “sweat of the brow” notion of copyright law.
In Eastern Book Company v. D.B. Modak ,20 the Supreme Court held that although for establishing a copyright, the
creativity standard applies was not that something must be novel or non-obvious, but some amount of creativity in
the work to claim a copyright was required. It did require a minimal degree of creativity.21 Arrangement of the facts
or data or the case law was already included in the judgment of the Court. Therefore, creativity of SCC would only
be addition of certain facts or material already published, case law published in another law report and its own
arrangement and presentation of the judgment of the Court in its own style to make it more user-friendly. The
selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital
lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original
work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation,
not the variation of the type where limited ways/uniqueness of expression are available and an author selects one
of them which can be said to be a garden of variety. Novelty or invention or innovative idea is not the requirement
for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by
the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.
16 Feist Publications Inc. v. Rural Telephone Service Co. Inc. , 499 US 340 : 113 L Ed 2d 358: 111 S Ct 1282: 18 USPQ
2d 1275 (1991).
[LNINDU 2007 SC 1].
18 In Emergent Genetics India Pvt. Ltd. v. Shailendra Shivam and Others , 2011 (47) PTC 494 (Del) at pp. 505-06 : (2011)
125 DRJ 173, the court stated that our law mandated that not every effort or industry, or expending of skill, resulted in
copyrightable work, but only those which created works that were somewhat different in character, involved some
intellectual effort, and involved a minimum degree of creativity. The court further stated that mere labour (sweat of the
brow) or investment of manpower and resources was not a substitute for originality. Sequences obtained from nature
(e.g. the sequence for a gene) could not per se, be original. The microbiologist or scientist involved in gene sequencing
“discovers” facts. There was no independent creation of a “work”, essential for matching the originality requirement.
Such a scientist merely copies from nature genetic sequence that contained codes for proteins. Therefore there was no
minimum creativity. So long as a researcher constructed a DNA sequence based on a sequence discovered in nature,
there was no independent creation, no minimum creativity and thus no originality.
19 Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc. , 945 F 2d 509 (2d Cir 1991).
20 Eastern Book Company v. D.B. Modak , (2008) 1 SCC 1 [LNINDU 2007 SC 1] at p. 113 : AIR 2008 SC 809 [LNINDU
2007 SC 1]: 2008 (36) PTC 1.
21 In Syndicate of the Press of the University of Cambridge v. B.D. Bhandari & Another , 2011 (47) PTC 244 (Del.) (DB) at
p. 293 : 185 (2011) DLT 346, the court stated that doctrine of ‘modicum of creativity’ was present when even
mathematical questions were framed by the author of the book to test the knowledge and understanding of the
students.
End of Document
Copyright in events
V K AHUJA

Copyright in events
There is no copyright in facts,54 or events which have actually taken place. In Indian Express Newspaper (Bombay)
Pvt. Ltd. v. Jagmohan ,55 the Bombay High Court observed:
There cannot, however, be a copyright in an event which has actually taken place. There is a distinction between the
materials upon which one claiming copyright has worked and the product of the application of his skill, judgement, labour
and literary talent of these materials. Ideas, information, natural phenomena and events on which an author expends his
skill, labour, capital, judgement and literary talent are common property and are not the subject of copyright.
54 Feist Publications, Inc. v. Rural Telephone Service Co. 499 U.S. 340 (1991) at pp. 350-51 .
55 Indian Express Newspaper (Bombay) Pvt. Ltd. v. Jagmohan , AIR 1985 Bom 229 [LNIND 1984 BOM 337].
End of Document
Does copyright subsist in ideas, plots or themes?
V K AHUJA

Copyright subsists in expressions, not in ideas. Idea is not a subject-matter of copyright.56 In Donoghue v. Allied
Newspaper, Ltd .,57 it was held by Farwell J. that:
…If the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of
words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not, until it
is reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists in the
particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the
information or the idea is conveyed to those who are intended to read it or to look at it.58
In Hollinrake v. Truswell ,59 Lord Lindley observed that the defendant might have got her own idea from the
plaintiff’s chart, but the defendant had not copied more than the plaintiff’s method of measuring. Copyright did not
extend to ideas, or schemes, or systems, or methods; it was confined to their expression; and if their expression
was not copied the copyright was not infringed.60
In Harnam Pictures N. V. v. Osborne ,61 Goff, J. observed that there was no copyright in ideas, schemes, system or
methods. It was confined to their expression. In R. G. Anand v. Delux Films ,62 the Supreme Court held that there
could be no copyright in an idea, subject-matter, themes, plots or historical or legendry facts and violation of the
copyright in such cases was confined to the form, manner and arrangement and expression of the idea by the
author of the copyrighted work.63
The idea/expression dichotomy was explained by the Calcutta High Court in Barbara Taylor Bradford v. Sahara
Media Entertainment Ltd .,64 where the court pointed out that the law protected originality of expression and not
originality of the central idea due to the balancing of two conflicting policies. The first policy was that the law must
protect originality of work, thereby allowing the authors to reap the fruits of their labour and stopping unscrupulous
pirates from enjoying those fruits. The second policy was that the protection must not become an over protection,
thus, curbing down future creativity. If mere plots and characters were to be protected by copyright, an author could
not write anything “original” at all, on a similar plot or on similar characters. The Court observed:
…If plots and ordinary prototype characters were to be protected by the copyright law, then soon would come a time in the
literary world, when no author would be able to write anything at all without infringing copyright… an intending author,
instead of concentrating upon the literary merit of his expression, would be spending his life first determining whether he is
infringing the copyright of the other authors who have written on this topic or that. The law of copyright was intended at
granting protection and not intended for stopping all literary works altogether by its application.65
The court further observed that where a person copied a plot, be it consciously or unconsciously, he must also
weave into the plot sufficient creations of his own imagination and literary skill, to make the work his own and not a
copy of the work which might have inspired him in the first place.
Page 2 of 3
The court also referred to questions as to how to make a distinction between a copy of an idea or a plot, which was
permitted and the copy of an expression of the author, which was protected? Where did idea end and expression
begin? The court observed that these were the questions most difficult to answer or even to explain. The best
answer was that there were no final answers, and there was also no hope that there would be any final answers
ever. These were situations of legal assessment. There was no final and exact way of determining as to what was a
copy, or what was a copy of the expression, or what was a copy of the idea only. It was an exercise doomed to
failure from the very beginning. It would either become too long for an Act, seeking to encompass in it all the judicial
pronouncements of value of all the civilized countries in the world in all the different cases, or it would be short,
simple and wrong.66
In Institute for Inner Studies & Ors v. Charlotte Anderson & Ors .,67 the court stated that there were cases where the
courts had to draw the line between the ideas and expression of such ideas by indulging into the depth enquiry in
order to identify as to what could constitute idea in a particular work and what was an expression of such idea
where the originality resided.
Such kind of idea/expression problem often arises in the cases of derivative works or where the work contains the
historical facts collated from history or ancient times or in cases where work consists of methods of construction,
any theorems, principles which are common place or scientific principles or experiments touching the patents which
are sought to be protected under the guise of original works of authorship. In all such cases, the court makes fair
attempt to draw a line between what is an idea and expression within the same work by testing the original quotient
of the work.68
Whenever the protection on the premise of copyright is sought for in relation to books and literature describing the
useful art, principle, historical fact or events or mode of performing ancient exercise or any other process for that
matter, the copyright protection shall vest in the language employed to describe in the art in the book, the selection
and arrangement of the facts or Asanas and their presence in the sequential manner in the book wherein the hard
work, skill, labour has been expended by the master in doing so and the reproduction right to this shall be available
exclusively to the master or persons deriving title from him. However, the protection shall not be extended to include
the monopoly right over the performance of the said Asanas of Yoga or Pranic Healing on the strength of the
manner of the expression as stated in the book as doing the same would be giving the monopoly right to the art or
technique itself which is available in public domain from time immemorial.69
In Open Source Yoga Unity v. Bikram Choudhury ,70 the District Court of North California observed:
[C]opyright law provides that while functional and public domain material remains free for all to use, a compilation of that
material may nonetheless qualify for copyright protection if the compiler can demonstrate a sufficient level of creativity in
the selection and arrangement of the elements in the compilation. … OSYU has provided no persuasive authority that a
compilation of yoga asanas cannot be protected under the copyright laws in the same manner as other compilations.
56 In Twentieth Century for Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. & Another , 2010 (44) PTC 647
(Bom) at p. 651 : (2011) 1 Bom CR 750 [LNIND 2010 BOM 823], the court stated that an idea, which was available in
the world, could not be the monopoly of anyone. That idea could be presented by various people in various artistic
works. In Time Warner Entertainment Company v. RPG Netcom , 2007 (34) PTC 668 (Del) (DB) at p. 672, the court
stated that “the object of copyright is not to create any legal or intellectual property rights in the idea but in the final
object or the work which is created as a result of the effort made to give a ‘physical’ shape to an idea.”
57 Donoghue v. Allied Newspaper, Ltd. , (1937) 3 Ch. D. 503 .
58 See also Prestige Housewares (India) Limited & Another v. Prestige Estates and Properties & Others , 2002 (25) PTC
108 (Karn) at p. 120 .
59 Hollinrake v. Truswell , 1894 Ch. 420 .
60 See also Twentieth Century Fox Film Corporation v. Zee Telefilms Ltd. & Other , 2012 (51) PTC 465 (Del) at p. 507, the
court observed that “a mere outline or theme is not copyrightable since it is only an idea, nor is there any protected
Page 3 of 3
property right in the ‘theme’ of a work, or in locale or setting of a story. But a distinctive treatment of a plot or theme is
copyrightable as a literary work or as a dramatic work”.
61 Harnam Pictures N. V. v. Osborne , (1967) 1 WLR 723.
62 R. G. Anand v. Delux Films , AIR 1978 SC 1613 [LNIND 1978 SC 201]. In Chatrapathy Shanmugham v. S. Rangarajan
, the Madras High Court held that the law recognised that reproduction of ideas, system, information, matter in public
domain did not form the subject-matter of infringement. Thus, there could not be a copyright in a theme.
63 In Time Warner Entertainment Company v. RPG Netcom , 2007 (34) PTC 668 (Del) (DB) at p. 672, the Division Bench
held that the object of copyright was not to create any legal or intellectual property rights in the idea but in the final
object or the work which was created as a result of the effort made to give a “physical” shape to an idea.
64 Barbara Taylor Bradford v. Sahara Media Entertainment Ltd. , 2004 (28) PTC 474 (Cal)(DB) .
65 Id. at pp. 489-90.
66 Id. at p. 490.
67 Institute for Inner Studies & Ors v. Charlotte Anderson & Ors. , 2014 (57) PTC 228 (Del) at pp. 285-86 .
68 Id. at p. 286.
69 Id. at pp. 296-97.
70 Open Source Yoga Unity v. Bikram Choudhury , 74 USPQ 2D (BNA) 1434.
End of Document
Copyright in concept note
V K AHUJA

Whether copyright subsisted in a concept note was an issue which came up before Delhi High Court in Anil Gupta
v. Kunal Dasgupta. 71 The plaintiff conceived the idea of producing a reality television programme containing the
process of match making to the point of actual spouse selection in which ordinary persons would participate before
a TV audience. The plaintiff devised a unique and novel concept of leaving it to the prerogative of a woman to
select a groom from a variety of suitors. The concept was named as ‘Swayamvar’. The plaintiff disclosed this
concept to defendant under confidential agreement in 1998 and a concept note was sent to him for the purpose of
the production of the TV serial. Subsequently, the plaintiff came to know about the defendant’s plans of launching a
high reality show for matchmaking by the name of ‘Shubha Vivah’. The plaintiff filed a suit for copyright violation of
the concept of reality show of matchmaking and violation of confidential information.
The defendant contended that the concept was in public domain and there was no copyright in ideas. It was also
contended that information given was a broad, vague and rough preliminary note which could not have protection
under confidential information. The court held:
An idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is
capable of registration under the Copyright Act. The novelty and innovation of the concept of the plaintiff resides in
combining a reality TV show with a subject like matchmaking for the purpose of marriage…. Therefore, originality lies in the
concept of plaintiff by conceiving a reality TV programme of matchmaking and spouse selection by transposing
mythological swayamvar to give prerogative to woman to select a groom from variety of suitors and making it presentable to
audience and to explore it for commercial marketing. Therefore, the very concept of matchmaking in view of concept of the
plaintiff giving choice to the bride was a novel concept in original thought capable of being protected.72
In India, the court, for the very first time held that the concept might be subject matter of copyright protection.
In Fraser v. Thames Television ,73 it was observed by the Court:
I accept that to be capable of protection the idea must be sufficiently developed, so that it would be seen to be a concept
which has at least some attentiveness for a television programme and which is capable of being realised as an actuality.
But I do not think this requirement necessitates in every case a full synopsis. In some cases the nature of the idea may
require extensive development of this kind in order to meet the criteria. But in others the criteria may be met by a short
unelaborated statement of an idea. In Talbot’s case [Talbott v. General Television Corporation (1981) RPC 1 ] itself I do not
think the detailed submission added very much of substance to the idea which is set out in one sentence.
In Zee Entertainment Enterprises Ltd. v. Gajendra Singh ,74 the Bombay High Court observed that as a general
proposition, a concept note which contains literary work, is entitled to be protected under the Copyright Act if it
contains work which is copyrightable under the said Act. If it contains copyrightable work, the author/owner thereof
Page 2 of 2
would be entitled to the protection afforded under the Copyright Act, 1957. There is no magic in the expression
“concept note”. It appears to be an expression used in the television/film industry. The mere use of the term
“concept note” however, would make no difference. It would be necessary for a Court in each case, to examine
whether the concept note constitutes work which is copyrightable and entitled to protection under the provisions of
the Act.
In Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd .,75 the Bombay High Court observed that the law did not
recognize property rights in abstract ideas, nor was an idea protected by a copyright. It became copyrighted work
only when it was given embodiment in a tangible form. But where the plaintiff had developed an idea into various
concept notes, character sketches, detailed plot of episodes, they would become subject matter of copyright
protection.76
71 Anil Gupta v. Kunal Dasgupta , 2002 (25) PTC 1.

72 Id. at p. 15.
73 Fraser v. Thames Television , (1983) All ER 101.
74 Zee Entertainment Enterprises Ltd. v. Gajendra Singh , 2008 (36) PTC 53 (Bom) .
75 Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd. , 2003 (27) PTC 457 (Bom) (DB) .
76 In Zee Telefilm Limited v. Aalia Productions and Others , 2000 PTC 382 at p. 393, the Bombay High Court stated that
there could not be copyright in any concept as such and in the absence of any definite and certain agreement between
the parties about the structure and format of the programme, the plaintiffs could not be said to have acquired copyright
in whatsoever was produced by the defendants.
End of Document
Slogans
V K AHUJA

Slogans
The court has, however refused to recognize copyright in slogans. The Delhi High Court in Pepsico Inc. v.
Hindustan Coca Cola ,77 examined the question as to whether copyright subsists in slogans and words. In this case,
the plaintiff has registered the slogan “YEH DIL MANGE MORE” under the Copyright Act, 1957. The plaintiff
argued, inter alia, that the use of the phrase by the defendant in their advertisements violated the copyright of the
plaintiff. The court held that the advertising slogans were prima facie not protectable under the Copyright Act, 1957.
They could be protected under the law of passing off in case the plaintiff has made out a case.78
In Prestige Housewares (India) Limited & Another v. Prestige Estates and Properties & Others ,79 the court held that
“there can be no copyright in word or words, but the right can only be in the artistic manner in which it is written.”80
77 Pepsico Inc. v. Hindustan Coca Cola , 2001 PTC 699 (Del) .

78 Id. at p. 719.
79 Prestige Housewares (India) Limited & Another v. Prestige Estates and Properties & Others , 2002 (25) PTC 108 (Karn)
.
80 Id. at p. 120.
End of Document
Fictional characters
V K AHUJA

Fictional characters
A fictional character is a word portrait and the physical appearance and characterization reside in the mind of the
reader. Such imagination is brought about by reading about the character through the pages of a book. The
character, therefore is not apparent for the reader.81 Protection is granted to fictional characters only when the court
is made to believe beyond doubt that the characters are well delineated.
In Warner Brothers Pictures v. Columbia Broadcasting Systems 82 the court held that no character was protectable
under copyright law unless the character was extremely well-delineated as to constitute ‘the story being told’ rather
than merely being a ‘chess man in the game of telling the story.’83 In Universal City Studios v. Kamar Industries ,84
the character ET was held copyrightable because of its being a unique and distinctive character about whom the
movie revolved.
In V.T. Thomas v. Malayala Manorama ,85 a newspaper publisher employed a cartoonist to produce cartoons for
him of characters created by the cartoonist. The court held that the employer did not acquire a property right in the
names of such characters even though he became the owner of the copyright in the cartoons published during the
terms of employment and the publisher had no right to continue to use the names of such characters after
termination of the employment especially where the title (characters) were created by the artist prior to his
employment by the newspaper. Though the court basically confined to the issue of ownership, yet by drawing an
inference it can be stated that the court has recognized copyright protection for the characters.
81 S.K.D.Biswas, Copyrightability of Characters, 9 JOURNAL OF INTELLECTUAL PROPERTY RIGHTS, March 2004, pp.
148-56 at p. 149.
82 Warner Brothers Pictures v. Columbia Broadcasting Systems , 216 F 2d 945, 104 US P Q 103 (9th Cir 1954).
83 Id. at 950, 104 US P Q at p. 107.
84 Universal City Studios v. Kamar Industries , 1982 Copyright L Decisions (CCH) 25,452 (SD Tex. 1982).
85 V.T. Thomas v. Malayala Manorama , AIR 1989 Ker 49 [LNIND 1987 KER 584].
End of Document
Abridgment
V K AHUJA

Abridgment
Copyright subsists in an abridgment of a literary and dramatic work. Abridgment means to reduce a large work into
a small one by preserving the sense and meaning of the entire work. In Macmillan & Co. Ltd. v. K. & J. Cooper 86
the court cited following passage from the Copinger’s Law of Copyright (1904) (p.39):
To constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning,
and then the act of abridgment is an exertion of the individuality employed in moulding and transfusing a large work into a
small compass, thus rendering it less expensive and more convenient both to the time and use of the reader. Independent
labour must be apparent, and the reduction of the size and work by copying some of its parts and omitting others confers
no title to authorship, and the result will not be an abridgement entitled to protection. To abridge in the legal sense of the
word is to preserve the substance, the essence of the work in language suited to such a purpose, language substantially
different from that of the original. To make such an abridgment requires the exercise of mind, labour skill and judgment
brought into play, and the result is not merely copying.
Being species of abridgment, copyright also subsists in head notes, side notes and marginal notes of a report. In
Sweet v. Benning ,87 the court held that the head note, or the side or marginal note of a report, was something upon
which much skill and exercise of thought is required, to express in clear and concise language the principle of law to
be deduced from the decision, or the facts and circumstances, which bring the case within some principle or rule of
law or of practice. Copyright also subsists in abstract of an article.
86 Macmillan & Co. Ltd. v. K. & J. Cooper , (1923) 40 TLR 186 at p. 187 .
87 Sweet v. Benning , (1855) 16 CB 459.
End of Document
V K AHUJA

The term “computer” is defined under the Act to include any electronic or similar device having information
processing capabilities,88 whereas the term “computer programme” is defined to mean a set of instructions
expressed in words, codes, schemes or in any other form including a machine readable medium, capable of
causing a computer to perform a particular task or achieve a particular result.89
For copyright to subsist in a computer programme, the computer programme must be ‘original’ and ‘recorded’ in
writing or otherwise. The requirement of originality is not an onerous one and does not mean that the computer
programme must be novel or unique in some respect. It merely means that the programme has been the result of a
modest amount of skill, labour or effort and that it originates from the author.
The Copyright Act, 1957, specifically provides that copyright subsists in original literary works.90 Thus, a computer
programme is required to be original in order to qualify for copyright protection. The definition of “computer
programme” in the Copyright Act, 1957, makes it clear that the programme must contain a set of instructions
expressed in words, codes, schemes or in any other form including a machine readable medium. Further, a
computer database, stored on tape, disk or by other electronic means, would generally be a compilation and
capable of protection as a literary work. The protection however, depends on whether it satisfies the requirement of
originality. In case of compilations, the originality is not on the materials but on the manner of organization of the
material since in some cases the materials as such can enjoy separate copyright protection. In Burlington Home
Shopping Pvt. Ltd. v. Rajnish Chibber & Another ,91 the question of the protection of computer databases came up
for consideration before the Delhi High Court. The Court held that a compilation of addresses developed by any one
by devoting time, money, labour and skill amounted to a ‘literary work’ though the sources might be commonly
situated.
In Express Newspapers plc v. Liverpool Daily Post & Echo plc ,92 random numbers selected by computer for a
newspaper competition called ‘Millionaire of the Month’ were held to be protected by copyright. The court rejected
the argument that as there was no human author and therefore the lists of numbers drawn by the computer could
not be protected by copyright. The court held that the human expertise in computer-derived works could be found to
reside in the programmes which produced the lists of random numbers.
Section 2(d) of the Copyright Act, 1957, defines ‘author’ to mean in relation to any literary, dramatic, musical or
artistic work which is computer-generated, the person who causes the work to be created.
88 Section 2(ffb), Copyright Act, 1957.

89 Section 2(ffc), id.
90 Section 13(1)(a),id.
91 Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Another , 1995 PTC 278.
92 Express Newspapers plc v. Liverpool Daily Post & Echo plc , (1985) 1 WLR 1089.
Page 2 of 2
End of Document
III. ORIGINAL DRAMATIC WORKS
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > III. ORIGINAL DRAMATIC WORKS

An original dramatic work is the product of human mind, arrived at by the exercise of substantial independent skill,
creative labour or judgement, which requires acting or dancing for its proper representation and is of a sufficiently
definite and permanent nature as to be capable of being recorded in writing.93 In Green v. Broadcasting Corp. of
New Zealand ,94 Lord Bridge stated that a dramatic work must be capable of performance. Similarly, in Norowzian
v. Arks Ltd. (No.2) ,95 the Court of Appeal held that a dramatic work was any work of action, with or without words or
music, that was capable of being performed before an audience. Thus, dramatic work involves action and
movement.96
The Copyright Act, 1957, provides that “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.97 Since the definition is an inclusive one, the other things which fall within
the general meaning of dramatic work, may also be covered by the definition.
“Dramatic work” is in the nature of physical manifestation of such recitation of choreographic work or entertainment
but does not include a cinematograph film. When someone does those acts as mentioned in section 2(h) physically
and live and is not a photographic imprint thereof, it would mean dramatic work.98
A dramatic work can be defined as ‘a work created in order to be communicated in motion, that is, through a
sequence of actions, movements, irrespective of the technique by which this movement is retrieved or expressed’.1
In Institute for Inner Studies & Ors v. Charlotte Anderson & Ors .,2 the Delhi High Court stated that for a work to be
called as a dramatic work, the “work has to be the one which is capable of physically performed or accompanied by
action. The other requirement for a work to be called as dramatic work is fixation of the matter in the form of writing
or otherwise which means certainty of incidents as a predetermined plan. Where there exists a reasonable doubt as
to complete certainty of the performance of the work in the manner conceived by the author or writer, in such cases,
the work falls short of the requirement of fixation or certainty of the performance and therefore cannot be called as
dramatic work. Such instances of doubtful nature of certainty include sport games, news presentations, aerobics
and by necessary implication also include other exercises, daily routines, Yoga and Pranic Healing techniques. … it
can be said that prima facie the Asanas of Yoga or Pranic Healing do not fall within the ambit of the dramatic work.”
93 Hugh Laddie et. al., THE MODERN LAW OF COPYRIGHT (London, 1980), p. 16.
94 Green v. Broadcasting Corp. of New Zealand , (1989) 2 All ER 1056.
95 Norowzian v. Arks Ltd. (No.2) , [2000] FSR 363.
96 See also Paul Torremans, HOLYOAK AND TORREMANS INTELLECTUAL PROPERTY LAW (2010), p. 215.
97 Section 2(h), Copyright Act 1957.
98 Saregama India Ltd. v. Suresh Jindal & Others , 2007 (34) PTC 522 (Cal.) at p. 534 .
Page 2 of 2
1 P. Kanina, Authorship of films and Implementation of the Term Directive: The Dramatic Tale of Two Copyrights(1994)
EIPR 319, 320.
2 Institute for Inner Studies & Ors v. Charlotte Anderson & Ors. , 2014 (57) PTC 228 (Del) .
End of Document
Choreographic work
V K AHUJA

Choreographic work
Choreography is the art of arranging or designing of ballet or stage dance in symbolic language. In order to qualify
for copyright protection, it must be reduced to writing. The form of writing is immaterial. The term “writing” may be
defined to include any form of notation or code, whether by hand or otherwise and regardless of the method by
which, or medium in or on which, it is recorded. There are various systems used for this purpose - the shorthand
notation of Benesch, the longer, more academic and elaborate Laban system or even a choreographer’s personal
notes in his own invented system.3
Whether Asanas of Yoga or Pranic Healing can be considered as choreographic work? This issue came up before
Delhi High Court in Institute for Inner Studies & Ors v. Charlotte Anderson & Ors .4 The Court stated that on careful
understanding of the concept of dramatic work, it could be concluded that the arts and exercises like Yoga, Pranic
Healing Technique or daily routine exercises though appeared to be choreographic work but they were as a matter
of fact not a choreographic work.5 The Court referred to the judgement of the District Court of North California in
Open Source Yoga Unity v. Bikram Choudhury ,6 in which it was observed that “a compilation of simple routines,
social dances, or even exercises would not be registrable unless it results in a category of copyrightable authorship.
A mere compilation of physical movements does not rise to the level of choreographic authorship unless it contains
sufficient attributes of a work of choreography. And although a choreographic work, such as a ballet or abstract
modern dance, may incorporate simple routines, social dances, or even exercises routines as elements of the
overall work, the mere selection and arrangement of physical movements does not in itself support a claim of
choreographic authorship.
Thus, preferable forms of pantomimes or choreographic works - ones that satisfied the fixation requirement for
copyrights - are ones recorded in either the Laban system of notation or as a motion picture of the dance. …”7
3 Michael F. Flint, A USER’S GUIDE TO COPYRIGHT (London, 1990), p. 187.

4 Institute for Inner Studies & Ors v. Charlotte Anderson & Ors. , 2014 (57) PTC 228 (Del) .
5 Id. at p. 303.
6 Open Source Yoga Unity v. Bikram Choudhury , 74 USPQ 2D (BNA) 1434.
7 Cited in Institute for Inner Studies & Ors v. Charlotte Anderson & Ors. , 2014 (57) PTC 228 (Del) at p. 306 .
End of Document
Scenic arrangement
V K AHUJA

Scenic arrangement
Scenic arrangement or acting form is protected under Copyright Act, 1957, provided it is fixed in writing or
otherwise. Thus, in order to secure copyright protection, it is necessary that the scenic effects or stage situations be
reduced into some permanent form.
In Tate v. Fullbrook ,8 the court held that mere scenic effects, taken by themselves and apart from the words and
incidents of the piece, were not protected by copyright. But once there is dialogue, scenic effects become
accessory to the dramatic work, and the whole becomes the subject of copyright, in the sense that they are the
background of the dramatic action and are therefore part of it. If the scenic effects are fitted to a totally different
dialogue, that may not be an infringement.
8 Tate v. Fullbrook , (1908) 1 K.B. 821 .
End of Document
IV. ORIGINAL MUSICAL WORKS
V K AHUJA

The Copyright Act, 1957, defines “musical work” to mean a work consisting of music and includes any graphical
notation of such work, but does not include any words or any action, intended to be sung, spoken or performed with
the music.9 In order to qualify for copyright protection, a musical work must be original. According to Laddie, a
musical work is intended to be performed by the production of a combination of sounds to be appreciated by the
ear.10
Section 2(p) makes it clear that musical work is the music itself and the graphical notation of such music but does
not include any words or any action intended to be sung, spoken or performed with the music. Therefore, the
statute has made a distinction between musical work and a song which may or may not be without music. But even
a song is sung which has music it will not become a musical work under the said section.11
In Star India Pvt. Ltd. v. Piyush Agarwal & Ors. ,12 the Delhi High Court stated that music was different from sound
i.e. music only meant what were musical notes which were found on the paper or other writing medium, and not
what was heard. What was heard, and which was called music in layman’s terms, was really a sound created by the
musician by playing an instrument in terms of musical notes (which was the musical work and the subject matter of
a copyright).
In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn .,13 Justice Krishna Iyer observed
“copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the
melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be
enthralled or enchanted by the nada brahma, the sweet concord of sounds, the raga, the bhava, the laya and the
sublime or exciting singing.”
In Gramophone Company of India Ltd. v. Super cassette Industries Ltd. ,14 the Delhi High Court observed:
“Musical work” is not merely a combination of melody and harmony or either of them. It must necessarily also have been
“printed, reduced to writing or otherwise graphically produced or reproduced”. As we know figurations, progressions and
rythemic patterns are sometimes used in creation of melodies. Every musical composition has a structure, or shape, that is,
the arrangement of individual elements so as to constitute a whole and that musical notation means a visual record of
musical sound (heard or imagined) or a set of visual instructions for performance of music. Its main elements are pitch
(location of musical sound on the scale), duration, timbre, and volume. There are various systems of notation like verbal,
alphabetical, numerical, graphic and tablatures. The words “printed, reduced to writing or otherwise graphically produced or
reproduced” are thus not an empty formality.
9 Section 2(p), Copyright Act 1957.

10 H. Laddie, P. Prescott, and M. Vitoria, THE MODERN LAW OF COPYRIGHT AND DESIGNS (2000), p. 79.
Page 2 of 2
11 Saregama India Ltd. v. Suresh Jindal & Others , 2007 (34) PTC 522 (Cal.) at p. 534 .
13 Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn. , (1977) 2 SCC 820 [LNIND 1977 SC 128]
at p. 834 .
14 Gramophone Company of India Ltd. v. Super cassette Industries Ltd. , 1995 PTR 64 .
End of Document
V. ORIGINAL ARTISTIC WORKS
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > V. ORIGINAL ARTISTIC WORKS
V. ORIGINAL ARTISTIC WORKS

Section 2(c) of the Copyright Act, 1957, defines “artistic work” to mean:
(i) 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;
(ii) a work of architecture; and
(iii) any other work of artistic craftsmanship.
End of Document
Engraving
V K AHUJA

Engraving
Engravings which were the first artistic works to receive statutory protection15 include etchings, lithographs, wood-
cuts, prints and other similar works not being photographs.16 According to Concise Oxford Dictionary, “engraving”
means the art of inscribing or carving figures etc. upon surfaces, particularly hard surfaces, or cutting figures etc. in
lines on metal surfaces for printing. Further, “etching” means engraving the plate with acid or other corrosive
material whereas “lithograph” means treating parts of the surface of a stone, metal plate, etc., with ink-rejecting
substances so that the desired pattern will be picked up by the remaining untreated parts. “Wood-cut” means
engraving performed on a wood block. “Engraving” includes not only the image made from the engraved plate but
also the engraved plate itself.17 In American Historical Co. v. Clarke ,18 it was held that engraving was the art of
producing on hard material incised or raised patterns, lines, and the like from which an impression or print was
taken. The term could apply to a text or script, but was generally restricted to pictorial illustrations or works
connected with the fine arts, not including the reproduction of pictures by means of photography.
15 Engraving Copyright Act 1734.

16 Section 2(i), Copyright Act 1957.
17 James Arnold v. Miafern , (1980) RPC 397 at p. 403 .
18 American Historical Co. v. Clarke , 316 Ill. App. 309.
End of Document
Painting
V K AHUJA

Painting
Painting, another expression used in the definition of artistic work, is a product of the art of representing or depicting
by colours on a surface. Painting is protected as artistic work whether or not it possesses any artistic quality. But a
painting cannot be protected under Copyright Act 1957, unless it is found as an original work of the author. In other
words, unless the author of a painting employs either skill in painting or work and labour in seeking to depict some
actual object or abstract design, the work cannot be protected.19
Further, a painting is an object and not an idea, therefore, it can only be done on some kind of surface. In an
English case, Merchandising Corporation of America v. Harpbond ,20 it was held that facial make-up as such,
however, idiosyncratic it might be as an idea, was not a painting within the meaning of section 3 of the UK
Copyright Act, 1956.
20 Merchandising Corporation of America v. Harpbond , (1983) FSR 32.
End of Document
Sculpture
V K AHUJA

Sculpture
Sculpture, another form of artistic work, is the product of art of forming representations of things or abstract designs
in the round or in relief by chiseling stone, carving wood, modeling clay, casting metal, or similar processes. Work of
sculpture includes casts and models.21 Wooden models of plastic flying discs manufactured as toys are covered by
the definition of sculpture.22 According to New Encyclopedia Britannica, “sculpture” is the name of an art that grows
and changes and is continually extending the range of its activities and evolving new kinds of object.23 Copyright
subsists in a sculpture irrespective of its artistic quality.
21 Section 2(za), Copyright Act 1957.

22 Wham-O-Mfg. v. Lincoln , (1985) RPC 127 at p. 157 .
23 Vol. 16 at p. 421.
End of Document
Drawing
V K AHUJA

Drawing
Artistic works also include a drawing which further includes a diagram, map, chart or plan irrespective of their
artistic quality.24 It also includes engineering and mechanical drawings. The object of copyright is to grant the
draftsmen of such drawings, exclusive rights to copy and make for sale three dimensional reproductions by the
grant of licences, so that the skill and labour put by them in such drawings could be rewarded.25 A drawing based
upon an earlier drawing can also get copyright protection provided sufficient original skill and labour has been spent
on creating it.26 Copyright protection will not be denied to a drawing merely on score of simplicity. But copyright may
be denied to something which cannot fairly be called a diagram or a drawing e.g. a single straight line drawn with
the aid of a ruler.27
Ideas of making a drawing, however original are not protected by copyright. In a case where the plaintiff procured
an artist to make under his directions, a drawing of the representation, it was held that the plaintiff was not entitled
to prevent the artist to publish such drawing afterwards because copyright did not subsist in ideas.28 But copyright
may subsist in drawings derived in part from earlier drawings provided the former is not a reproduction of the later.29
Whether derivative drawings are original artistic works so as to qualify for copyright will depend on the degree of
skill, labour or judgement required to produce them as an end product as skill and labour merely in the process of
coping can not confer originality.30 The original drawings and three dimensional articles made therefrom are ‘artistic
works’ irrespective of any artistic quality, and therefore attract copyright.31
24 Section 2(c)(i), Copyright Act 1957.

25 British Layland v. Armstrong Patents , (1983) FSR 50 at p. 53(Ch d) .
26 Alibert v. O’Connor , 1982 FSR 317.
27 British Northrop Ltd. v. Texteam Blackburn Ltd. , (1974) RPC 57 at p. 68 .
28 Kenrick & Co. v. Lawrence & Co. , (1890) 25 QBD 99.
29 L.B. (Plastics) v. Swish , (1979) RPC 551 at p. 569 ; James Arnold v. Miafern , (1980) RPC 397 at p. 402 .
30 Interlego v. Tyco , (1988) RPC 343 at pp. 371-72(PC) .
31 Wham-O-Mfg. v. Lincoln , (1985) RPC 127 at 157 ; Plix Products v. Frank , (1986) FSR 63 at p. 81 (HC NZ) .
End of Document
Photograph
V K AHUJA

Photograph
Original photographs are also protected as artistic work irrespective of their artistic quality. “Photograph” includes
photolithograph and any work produced by any process analogous to photography but does not include any part of
a cinematograph film.32 The reason of excluding films from photography is that they have their own special
copyright governed by different rules as to root of title, term and privileges of ownership.
Photography is the art of taking pictures by the chemical action of light or other radiation such as heat or x-rays on
sensitive film or other material and it embraces xerography and similar processes.33 A photograph must be original
in order to attract copyright and some degree of skill and effort must have been expended on it. A mere copy of a
photograph made on photocopying machine would not be qualified for copyright protection as there would not be
enough independent skill or labour employed on it. Where a photograph of some common place has been taken, it
will be open to rest of the world to have recourse to that object and take a similar photograph from the same angle.
But where the photographer has expended skill and time in arranging the grouping of the figures, the lighting and so
on, there may be an infringement of copyright if someone consciously repeats the process so as to arrive at
substantially the same result.
In Bauman v. Fussel ,34 it was observed by Somarwell L.J. that a painter who was minded to make a picture of the
procession, in his own style, would not be committing a breach of copyright if he used the photograph of the plaintiff
to enable him to get accurately the relative position of those taking part. Further, a portrait based on two
photographs could become the subject of copyright if it is original and produced a result different from the
photographs.35
32 Section 2(s), Copyright Act, 1957.

34 Bauman v. Fussel , (1978) RPC 485 at p. 487 .
35 Associated Publishers v. Bashyam , AIR 1964 Mad 114 .
End of Document
Graphic characters
V K AHUJA

Graphic characters
Copyright subsists in visual expression of a character depicted by drawing. A graphic character is depicted by a
cartoon or other graphic representation. A graphic character is considered to be easily perceivable and more
apparent for the reader. The court in Hill v. Whalen Mortell ,36 held that the defendant’s stage characters of ‘Nutt’
and ‘Giff’ were carbon copies of plaintiff’s characters ‘Mutt’ and ‘Jeff’ and therefore, theatre production has infringed
the plaintiff’s copyright in his characters.
Copyright subsists in visual expression of a character and not in general ideas about a character. The court in
Detective Comic v. Bruns Publication ,37 opined that the idea of a man with ‘superhuman powers’ is not capable of
protection, but if that idea is clothed with specific features like that of ‘superman’, then the character becomes an
expression. Any other person is free to develop character with ‘superhuman powers’, but having characteristics and
personalities different from the existing character of ‘Superman’. The court held that since the defendant’s character
‘Wonderman’ had the same physical and emotional characteristics as that of the plaintiff’s well-known cartoon
character ‘Superman”, the defendant had infringed plaintiff’s copyright in the character ‘Superman’ by copying more
than the general types and ideas from ‘Superman’ and also appropriating pictorial and literary details.
In Nichols v. Universal Pictures Corp. ,38 Hand, J. laid down the ‘character delineation’ test which meant ‘whether
the particular character is sufficiently and distinctively delineated so that it warrants protection.’ Hand, J. further
stated that ‘it follows that the less developed the characters, the less they can be copyrighted; that is the penalty an
author must bear for making them too indistinct.’ In Walt Disney v. Air Pirates ,39 the defendants portrayed Disney’s
characters in incongruous settings. The court while holding the defendants liable for copyright infringement held that
a two-step test should be applied to determine copyright infringement. First, the visual similarities of the characters
are to be determined and secondly, if that does not determine infringement, then the court would analyze the
personalities of the cartoon characters. The second test had to be done with the ‘character delineation’ test as
developed in Nichols case.
In India, the Kerala High Court in V.T. Thomas v. Malayala Manorma ,40 allowed V.T. Thomas (author) to carry on
with his work of drawing the characters in Toms Boban and Molly even after leaving employment. The Court found
the character and image in the cartoon to have been well developed by the author and prohibited the publishers
from claiming copyright over the character and continuing to draw the same character after terminating the author’s
employment. The Court opined that since Mr. Thomas had created the character before entering into employment
with the publishers, he is the one who should be allowed to carry on the exploitation of his work even after leaving
employment. Since the publishers did not play any role in creation of the character, they would not get copyright
over the character.
36 Hill v. Whalen Mortell , 220 F 359 (S D NY, 1914).

37 Detective Comic v. Bruns Publication , 111F 2d 432 (2d Cir, 1940).
Page 2 of 2
Graphic characters
38 Nichols v. Universal Pictures Corp. , 45 F 2d 119 (2d Cir 1930).

39 Walt Disney v. Air Pirates , 581 F. 2d 751 (9th Cir 1978).
40 V.T. Thomas v. Malayala Manorma , AIR 1989 Ker 49 [LNIND 1987 KER 584].
End of Document
Work of architecture
V K AHUJA

Work of architecture
The second category in the definition of artistic works is a work of architecture. A work of architecture means any
building or structure having an artistic character or design, or any model for such building or structure.41 Copyright
shall subsist only in the artistic character and design and shall not extend to processes or methods of
construction.42 Further, copyright shall not subsist in work of architecture unless the work is located in India,
provided it is not a work to which section 40 or 41 apply. Although it is difficult to give a general definition of
“building” but it is thought that the building or structure must be of such a character as is usually erected upon, or
constructed under, the ground and that in each case it involves something of substance, with an element of
permanence.43 A building or structure will not only be protected as a whole but also in individual architectural
features, including internal features of design. A garden with a pond, steps and wallwork was held to be a
structure.44
41 Section 2(b), Copyright Act, 1957.

42 Section 13(5),id.
43 E.P. Skone James, et. al., COPINGER AND SKONE JAMES ON COPYRIGHT (London, 1991), para 2-25.
44 Vincent v. Universal Housing Co. Ltd. , (1928-35) MCC 275 .
End of Document
Work of artistic craftsmanship
V K AHUJA

The primary purpose of conferring copyright on work of artistic craftsmanship is to protect the man who puts on the
market articles each one of which is a work of artistic craftsmanship, a product of his own handicraft, from
reproduction whether by hand, machine or otherwise.45
The term “artistic craftsmanship” has not been defined under the Copyright Act 1957. According to Jermy Phillips, it
may reasonably be inferred that nothing could be a work of artistic craftsmanship unless it satisfies some unspoken
criterion of artistic quality.46 These unspoken criterions have been defined in George Hensher Ltd. v. Restawile
Upholstery (Lancs) Ltd. 47 The case dealt with the issues whether the prototype furniture was a work of artistic
craftsmanship and therefore qualified for copyright protection. There was no uniformity of approach in the House of
Lords. Three important questions arose in this case. First, is it the craftsman’s intention to create something artistic
that counts or rather the perception by the public of artistic quality in the article? Second, what level of artistic
aspiration or attainment must be shown? Third, is it for the judge to make up his own mind on the question, or is his
function to weigh the relative strength of expert and other testimony given to the court?
As far as first question is concerned, Lord Reid attached more importance to the attitude of the public and stated
that a work of craftsmanship would be artistic if a substantial section of the public admired and valued it for its
appearance.48 Lord Russell was of the opinion that in order for a work to be of artistic craftsmanship, it should be
purchased for its aesthetic and not its functional qualities. Lord Kilbrandon, on the other hand, laid emphasis on the
conscious intention to produce a work of art and stated that one determines the status of a work of artistic
craftsmanship by examining the state of the craftsman mind.49 Lord Simon, although took a similar starting point but
he also brought into account the result so achieved and pointed out that “work of artistic craftsmanship” is literally, a
work the craftsmanship of which is artistic.50
As far as second question is concerned, Graham J. was satisfied that the prototype furniture qualified for copyright
because it had distinctive characteristics of shape, form and finish, and resulted in articles that were much more
than purely utilitarian.51 But Lord Reid and Morris doubted whether mere prototype furniture not intended to have
value or permanence in itself, could be considered as work of artistic craftsmanship.52 The House of Lords were
also of the opinion that such a prototype furniture could not qualify for copyright protection. Therefore, it becomes
quite clear that some higher level of artistic intent or attainment is necessary for a work to qualify as work of artistic
craftsmanship for copyright protection.
Responding to the third question, Lord Kilbrandon emphasized the place of the judge’s own evaluation by treating
the question as one of law,53 while on the other hand, Lord Viscount Dilhorne considered it a question of fact which
would be decided on the evidence.54 According to Lord Reid, a substantial section of the public should regard the
article as artistic,55 while Lord Simon laid stress on expert evidence.56 Since there is no uniformity in the views taken
by the judges, therefore, expert and non-expert evidences should be given in order to claim copyright protection
under this category.
In Merlet v. Mothercare Plc ,57 it was held by the House of Lords that prototype of a cape for a mother and child was
not a work of artistic craftsmanship.
Page 2 of 2
Further, like in case of literary, dramatic and musical work, originality is required for a work to be protected as
artistic work. Originality does not mean novelty or uniqueness nor does it require inventiveness. What is important is
that the author should have employed a substantial amount of his own skill or labour. Inventiveness, though not an
essential ingredient of an original artistic work, may be taken into account when assessing the degree of originality.
45 Lord Reid in George Hensher v. Restawile Upholstery (Lancs) , (1975) RPC 31 at p. 52 .

46 Jermy Philips et. al., INTRODUCTION TO INTELLECTUAL PROPERTY LAW (London, 1990), p. 128.
47 George Hensher Ltd. v. Restawile Upholstery (Lancs) Ltd. , (1975) RPC 31.
48 Id. at p. 54.
49 Id. at p. 72.
50 Id. at p. 70.
51 Id. at p. 40.
52 Id. at p. 53, 56.
53 Id. at p. 72.
54 Id. at pp. 62-63.
55 Id. at pp. 69-70.
56 Ibid.
57 Merlet v. Mothercare Plc , (1984) FSR 358.
End of Document
VI. CINEMATOGRAPH FILMS
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > VI. CINEMATOGRAPH FILMS
VI. CINEMATOGRAPH FILMS

There was no direct statutory provision dealing with cinematograph films before the Copyright Act, 1911. It was,
therefore to the common law or the then existing categories of statutory copyright that a producer of such film had
to turn. Normally, this meant that the film would be protected as a series of photographs. By the time of the revised
text of 1908 of the Berne Convention, it was recognized that cinematograph films were a new art form and the
Convention and the Copyright Act 1911 for the first time accorded such films copyright in their own right.
The Copyright Act, 1957, defines “cinematograph film” to mean any work of visual recording and includes a sound
recording accompanying such visual recording and the expression “cinematograph” shall be construed as including
any work produced by any process analogous to cinematography including video films.58
The expression “visual recording” means the recording in any medium, by any method including the storing of it by
any electronic means, of moving images or of the representations thereof, from which they can be perceived,
reproduced or communicated by any method.59 “Sound recording” means a recording of sounds from which such
sounds may be produced regardless of the medium on which such recording is made or the method by which the
sounds are produced.60
Under old as well as new definition of cinematograph film, sound track is protected as a part of the cinematograph
film and not as sound recording. However, independent copyright may also subsist in those sound recordings which
are made from film sound tracks, for example making records of songs from the sound track of a film. Section 13(4)
of the Copyright Act, 1957, also provides that copyright in a cinematograph film shall not affect the separate
copyright in any work in respect of which or a substantial part of which, the film is made.
58 Section 2(f), Copyright Act, 1957.

59 Section 2(xxa), id.
60 Section 2(xx), id.
End of Document
Do cinematograph films require to be original?
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > VI. CINEMATOGRAPH FILMS

Do cinematograph films require to be original?
Unlike literary, dramatic, musical and artistic works, the Copyright Act does not stipulate that cinematograph films
must be ‘original’ to qualify for copyright protection.
In UK, the Gregory Committee conceded that in the production of films and records also a variety of skills were
employed. However, it did not consider that such subject matters were ‘original’ in the same sense as ‘original
artistic works’.61 The Committee considered that films and records usually did not have the same artistic or literary
merit and novelty of concept as found in artistic and literary works. It is because of this that the word ‘original’ does
appear in relation to literary, dramatic, musical and artistic works but not in relation to cinematographic films and
records.
Although, there is no express stipulation in the Copyright Act, 1957, that it should be original, the copyright does not
subsist in a cinematograph film if a substantial part of the film is an infringement of the copyright in any other work.62
61 Cmnd. 8662, paras 85 and 86.

62 Section 13(3)(a),Copyright Act, 1957.
End of Document
VII. SOUND RECORDINGS
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > VII. SOUND RECORDINGS

Sound recordings were not the subject-matter of copyright protection prior to the Copyright Act, 1911. The growth of
an industry in the manufacture and sale of phonographs resulted in representations being made to Copyright
Committee of 1909 to the effect that such recorded music should be protected by copyright. The Committee
accepted that the production of phonographs might involve considerable skill and expenditure and that in those
circumstances phonographs deserved to be protected from unlicensed copying. As a result of this, the Copyright
Act, 1911, provided that copyright protection should be afforded to ‘records, perforated rolls and other contrivances
by means of which sounds may be mechanically reproduced’.63The term of copyright was limited to 50 years from
the date on which the original plate was made. However, rather than creating an entirely new type of copyright, the
Act provided that such contrivances should be treated ‘in like manner as if such contrivances were musical works’.64
The Copyright Act, 1957, originally contained the terms “record” and “recording”. The Copyright (Second
Amendment) Act, 1994, has omitted the definition of “record” and substituted a new definition for “recording”. The
term “recording” has been substituted by “sound recording”, which means a recording of sounds from which such
sounds may be produced regardless of the medium on which such recording is made or the method by which the
sounds are produced.65
The reason for substituting the term “sound recording” for “recording” is that the latter term has become outdated
through association with an obsolescent technology of sound reproduction. The new definition of “sound recording”
has not been tied to any particular technology.
The general rule in respect of all categories of work is that copyright does not subsist in any work unless in the case
of a published work, the work is first published in India, or where the work is first published outside India, the author
is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death,
a citizen of India. In case of an unpublished work, the copyright subsists only when the author is at the date of the
making of the work is a citizen of India or domiciled in India.66
Section 13(3) of the Copyright Act, 1957, provides that copyright does not subsist in any sound recording made in
respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been
infringed. Further, it is provided by section 13(4) that copyright in a sound recording does not affect the separate
copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound
recording is made.
The underlying literary and musical works do not lose their existence upon a cinematograph film or sound recording
being made. All the works remain mutually exclusive and the ownership therein can be exercised to the extent
prescribed by the Act.67
63 Section 19(1),Copyright Act, 1911.

64 Ibid.
Page 2 of 2
65 Section 2(xx), Copyright Act, 1957.

66 Section 13(2),id.
67 Indian Performing Right Society Ltd. v. Aditya Pandey & Others , 2012 (50) PTC 460 (Del) (DB) at p. 477 .
End of Document
Version recording
V K AHUJA
In India, 2e 2015 > CHAPTER 2 Subject-Matter of Copyright > VII. SOUND RECORDINGS

Version recording
Version recording is a sound recording made of an already published song by using another voice or voices and
with different musicians and arrangers. Version recording is thus neither copy nor reproduction of the original
recording.68 In Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd .,69 the Delhi High Court
observed that ‘version recordings would really be such sound recordings where while being inspired by the original
melody a distinct interpretation, different both in presentation, rhythm and orchestral arrangement emerges’.
On the issue of exclusive rights in version recording, the court held:
…by taking recourse to the traditional reservoir of Indian Classical Raags and traditional folk music, compositions based
thereon may result in a sound recording. Such a derivative by a contemporary composer/performer may not refer to the
original source in their sound recording. In such a situation, the current composer cannot claim exclusive rights to such a
sound recording, which are assertable against any other performer/sound recording based on such traditional repertoire.
Thus no enforceable rights can be acquired by any contemporary musician in rendering/recording traditional compositions.
Consequently, the traditional repertoire of Indian music which may not now enjoy copyright protection due to passage of
time and being in the public domain, cannot be appropriated by any individual by virtue of a later and current sound
recording by excluding other performers and/or composers. The tradition of Indian classical and folk music is a valuable
public heritage common to all adherents and cannot be purloined by a contemporary performer/composer by denying to
others the benefit of the same.
68 Gramophone Company of India Ltd. v. Super cassette Industries Ltd. , 1995 PTR 64 at p. 65 .
69 Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd. , 2003 (27) PTC 280 (Del) at 303 .
End of Document
VIII. ADAPTATION OF THE WORK
V K AHUJA
VIII. ADAPTATION OF THE WORK

Copyright also subsists in the adaptation of a work. In India, section 2(a) of the Copyright Act, 1957, defines
‘adaptation’ to mean:
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of
performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which
the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in
a book, or in a newspaper, magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription70 of the work; and
(v) in relation to any work, any use of such work involving its re-arrangement or alteration.
Clause (v) was inserted in the Act by the Copyright (Second Amendment) Act 1994. In relation to musical work,
however, if a musical arranger so decorates, develops, transfers to a different medium or otherwise changes the
simple music of a popular song as to make his arrangement fall within the description of an original musical work,
such arrangement or adaptation is capable of attracting an independent copyright. Such new arrangement shall not
amount to infringement of the musical work of the author.
70 ‘Transcription’ in relation to music may be defined as an arrangement of a musical composition for some instrument or
voice other than the original.
End of Document
I. OWNERSHIP IN LITERARY, DRAMATIC AND MUSICAL WORKS
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > I. OWNERSHIP IN LITERARY,
DRAMATIC AND MUSICAL WORKS
CHAPTER 3 Ownership of Copyright
I. OWNERSHIP IN LITERARY, DRAMATIC AND MUSICAL WORKS

Barring some exceptions, the author of a literary, dramatic or musical work is the first owner of the copyright in that
work.1 Under Copyright Act 1957, “author” means:
(a) in relation to a literary or dramatic work, the author of the work; and
(b) in relation to a musical work, the composer.2
Section 2(ffa) defines “composer” to mean the person who composes the music regardless of whether he records it
in any form of graphical notation. In relation to any literary, dramatic or musical work which is computer-generated,
the Copyright Act, 1957 provides that author is the person who causes the work to be created.3

2 Section 2(d)(i) and (ii), id.
3 Section 2(d)(vi), id.
End of Document
Ownership - No copyright in ideas
V K AHUJA
II. OWNERSHIP OF COPYRIGHT IN LECTURES, ADDRESSES, ETC.

Ownership - No copyright in ideas
Normally, it is not difficult to decide as to who is the author of the work, but sometimes problem may arise. Thus,
where a person merely suggests the plot of a novel or play to the writer, he will not be considered as author of the
novel or play as there is no copyright in ideas. Thus, if a person who has an idea for a story, picture, or play,
communicates it to another, the production which is the result of the communication of the idea is the copyright of
the person who has clothed the idea in form.4 It is equally clear that a mere amanuensis does not by taking down
word for word the language of the author, become in any sense the author of the work.5
4 Donoghue v. Allied Newspapers Ltd. , (1937) All. E.R. 503 ; R.G. Anand v. Delux Films , AIR 1978 SC 1613 [LNIND
1978 SC 201]: (1978) 4 SCC 118 [LNIND 1978 SC 201].
5 Donoghue v. Allied Newspapers Ltd. , ibid.
End of Document
Joint authorship
V K AHUJA

Joint authorship
“Work of joint authorship” means a work produced by the collaboration of two or more authors in which the
contribution of one author is not distinct from the contribution of the other author or authors.6
In Donoghue v. Allied Newspapers Ltd .,7 entire material was supplied by Donoghue to Felstead, who was a
journalist. The material was in fact, his experiences which he shared with Felstead for the purpose of writing article
for a newspaper. The court held that Donoghue was not an author or even a joint author of those articles.
The issue of authorship of a book India Wins Freedom came up before Delhi High Court in Najma Heptulla v. M/s
Orient Longman Ltd .8 The book recorded experiences of Maulana Abul Kalam Azad. Azad used to describe his
experiences and Humayun Kabir, a close associate of Azad, used to make copious notes. When sufficient material
was collected for a chapter, Kabir prepared a draft in English and gave it to Azad. Azad read each chapter and after
that both Azad and Kabir went over that chapter together. Azad used to make many amendments, additions,
alterations and omissions. Kabir’s function was only to record Azad’s feelings. Kabir did not interfere with the
opinions and judgments in the book, even if he did not agree with Azad. Azad communicated his thought to Kabir in
Urdu and the later strived as far as he could to reflect it with complete accuracy in English.
Disagreeing with the judgement in Donoghue’s case, the court observed that if the reasoning in Donoghue’s case
was correct, it would mean that material on the basis of which a literary book was written would be of no
importance, while deciding as to who was the author of a book. The Court concluded that the work India Wins
Freedom was the product of the active and close intellectual collaboration between Azad and Kabir in pursuance of
a preconcerted joint design between the two that Azad would contribute the material for the book and Kabir write
the same in English. Such a work could neither be regarded as the sole creation of Azad nor as the sole creation of
Kabir, but was a “work of joint authorship.”
It is noteworthy that the aforesaid judgement is not in conformity with section 2(z) which defines “work of joint
authorship” as “a work produced by the collaboration of two or more authors in which the contribution of one author
is not distinct from the contribution of the other author or authors.”
In Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Others ,9 the court stated that where a partnership firm makes a
film and takes various steps including funding the film, the financial contribution of one partner is not distinct from
the contribution of the other partners. Therefore, the partners of a partnership firm would be the joint authors and as
such the owners of the copyright. After referring to the work of Laddie, Prescott and Vitoria on the Modern Law of
Copyright and Designs (2011), the Delhi High Court in Institute for Inner Studies & Ors v. Charlotte Anderson & Ors
.,10 stated that there were three ingredients to be established for the work to be called as a work of joint authorship
which were collaboration, non-distinction of the contribution from one and other and creative input.
The intellectual contribution should be in the sense of contribution towards the creativity in copyright sense which is
Page 2 of 2
Joint authorship
the hard work, skill and labor expended in the creativity having role to play in the work considering the very nature
of the work.11
6 Section 2(z), Copyright Act 1957.

7 Donoghue v. Allied Newspapers Ltd. , (1937) All. E.R. 503 .
8 Najma Heptulla v. M/s Orient Longman Ltd. , AIR 1989 Del 63 [LNIND 1987 DEL 348].
9 Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Others , 2013 (55) PTC 95 (Bom) at p. 114 .
10 Institute for Inner Studies & Ors v. Charlotte Anderson & Ors. , 2014 (57) PTC 228 (Del) at p. 311 .
11 Id. at p. 314.
End of Document
Author of compilation
V K AHUJA

Author of compilation
In the case of collective or composite works, such as encyclopedias, there will be distinct copyrights namely, the
copyright in the entire work and the copyright in the separate contributions. The person who collects and arranges
the entire work will generally be the author of the work, considered as compilation, whereas the authors of separate
contributions will be the person who wrote them.
End of Document
Work made in the course of employment
V K AHUJA

Work made in the course of employment
The author of a literary or dramatic work may not be the first owner of the copyright in two circumstances. The first
circumstance deals with the work of employees of proprietors of newspapers, magazines and similar periodicals
and the second is concerned with the work of employees generally.
End of Document
‘Contract of service’ and ‘contract for services’
V K AHUJA

The law distinguishes between ‘contract of service’ and ‘contract for services’. Thus, not every contract under which
one works for another or provides services for another is a contract of service.
According to Halsbury’s Laws of England, a contract of service is not the same thing as a contract for services, the
distinction being the same as that between an employee and an independent contractor; an employee is a person
who is subject to the commands of his employer as to the manner in which he shall work. The existence of direct
control by the employer, the degree of independence on the part of the person who renders services, and the place
where the service is rendered are all matters to be considered in determining whether there is a contract of
service.14
Generally, there are not many difficulties in deciding whether the person is an employee or an independent
contractor but sometimes difficulties may arise. Earlier, emphasis was placed on the amount of control of employer
over employee. In Simmons v. Heath Laundry Co. ,15 it was held by Fletcher-Moulton L J.:
“The greater the amount of direct control exercised over the person rendering the services by the person contracting for
them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of
independence of such control the greater the probability that the services rendered are of the nature of professional
services and that the contract is not one of service.”16
In University of London Press Ltd. v. University Tutorial Press Ltd. 17 also, the element of control was considered
important in deciding whether or not the authors of certain examination papers, who were not on the staff of the
University of London were employed under a contract of service. The court answered in negative.
It has been recognized that degree of control is not always so important, particularly in the case of professional
people who may be employed under contracts of service.18 Thus, in Stephenson, Jordan and Harrison v.
Macdonald and Evans ,19 it was held by Lord Denning MR that under a contract of service a man is employed as
part of the business, and his work is done as an integral part of the business; whereas under a contract for services,
his work, although done for the business, is not integrated into it but is only accessory to it.
The test was approved in Market Investigations Ltd. v. Minister of Social Security ,20 where Cooke J. stated that the
fundamental test to be applied appeared to be whether the person who performs the services is performing them in
business on his own account. If yes, the contract is one for services; if not, it is a contract of services.
14 HALSBURY’S LAWS OF ENGLAND, vol. 9, fourth edition, para 860.

Page 2 of 2
15 Simmons v. Heath Laundry Co. , (1910) 1 KB 543.

16 Id. at pp. 549-50.
17 University of London Press Ltd. v. University Tutorial Press Ltd. , (1916) 2 Ch 601.
18 Morren v. Swinton and Pendlebury Borough Council (1965) I WLR 576 ; Whittaker v. Minister of Pensions and National
Insurance (1967) I QB 156 .
19 Stephenson, Jordan and Harrison v. Macdonald and Evans , (1952) 69 RPC 10.
20 Market Investigations Ltd. v. Minister of Social Security , (1969) 2 QB 173.
End of Document
Commissioned work
V K AHUJA

Commissioned work
Commissioned work is done under contract for services. In Gee Pee Film Pvt. Ltd. v. Pratik Chowdhury & Others ,21
on the basis of oral agreement, the plaintiff commissioned defendants 3 to 5 in 1999 to compose Bengali non-film
lyrics and music. Defendant no.1 had to sing the songs. The plaintiff published sound records that were based on
commissioned work. Subsequently, defendants no. 1 and 2 released music cassettes containing eight songs from
the plaintiff’s cassettes. The plaintiff filed a suit for infringement of his copyright in the sound records mainly on two
grounds. Firstly, since commissioned work fell under section 17(b) of the Copyright Act 1957, copyright in the
commissioned work was automatically transferred to the plaintiff. Secondly, being the producer of the sound
records, he was entitled to copyright under section 17 as the first owner. On the other hand, it was contended by
the defendants that there was no assignment of copyright and they were still the owners of copyright in the work
they created.
The Calcutta High Court while rejecting the arguments of the plaintiff, held that it was a clear case of contract for
services and not of contract of service. ‘[S]ection 17(b) of the Act specifies the only instances where an author,
although engaged under contract for service loses copyright. Those are the cases of taking photograph, drawing
paintings or portrait, engraving and making cinematograph film. In the present case, the defendants were not
engaged for any of the aforesaid jobs’.22
In Diljeet Titus Advocate & Others v. Alfred A. Adebare & Others ,23 the court observed that the work done by the
defendants for the benefit of the clients of the plaintiff would fall within the definition of contract of service. This is of
course apart from the fact that even if it was not so the same would not make a difference to the result in the
present case as the element of breach of trust or confidence can hardly be a factor to be ignored specially in view of
provisions of section 16 of the Copyright Act.
21 Gee Pee Film Pvt. Ltd. v. Pratik Chowdhury & Others , 2002 (24) PTC 392.
22 Id. at p. 399.
23 Diljeet Titus Advocate & Others v. Alfred A. Adebare & Others , 2006 (32) PTC 609 (Del) .
End of Document
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright

With a view to provide copyright in lectures, addresses etc. delivered in public, a provision was inserted by the
Copyright (Amendment) Act, 1983.24 It provides that any person who has delivered any speech or address in public
shall have the copyright in his speech or address as being the first owner of copyright therein. If the person who has
delivered such address or speech on behalf of any other person, such other person shall be the first owner of the
copyright therein. In a case where the person who delivered speech was employed by any other person who
arranges such address or speech or on whose behalf or premises such address or speech was delivered, the
deliverer shall remain the author and thus the first owner of the copyright therein.
In an older case Walter v. Lane ,25 speeches were delivered to public audiences on subjects of public interest by
Earl of Rosebury on five occasions in 1896 and 1898 which were taken down by reporters for The Times in short
hand. The speeches were published in The Times. In 1899, Lane published a book called Appreciations and
Addresses: Lord Rosebury, which included substantially verbatim Lord Rosebury’s speeches published in The
Times. The House of Lords while rejecting the arguments of respondent that the reporter who reported verbatim the
speeches of Lord Rosebury was not an “author” and that to be an author “one must think the thought and choose
the words and the order of them”, held that the reporter was the “author” of the report, as it was he who brought into
existence in the form of writing the piece of letter-press which respondent Lane had copied.26
However, in India proviso (cc) to section 17 of the Copyright Act, 1957, does not reconcile with the law laid down in
Walter v. Lane .27 Kirpal J. in Najma Heptulla v. M/s Orient Longman Ltd. 28 also expressed doubts whether, in view
of the proviso (cc) to section 17 that in the case of a speech delivered in public, the person who has delivered the
speech, is the first owner of the copyright therein, the Walter rationale holds good in India. By virtue of section 13,
copyright subsists only in the classes of works mentioned therein and a “lecture” as such is not a “work” in which
copyright can subsist under the Act, unless it is reduced to writing, printing or other notation. In the latter case,
copyright subsists in the latter as literary work, not in the speech itself. The law laid down in proviso (cc) to section
17 is not in conformity with section 13 .
24 Proviso (cc) to section 17, Copyright Act 1957.

25 Walter v. Lane , (1900) AC 539.
26 See also Express Newspapers plc v. News (U.K.) Ltd. , (1990) F.S.R. 359 .
27 Walter v. Lane , (1900) AC 539.
28 Najma Heptulla v. M/s Orient Longman Ltd. , 14 IPLR 36 (1989) at p. 46 .
End of Document
III. OWNERSHIP IN ARTISTIC WORK
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > III. OWNERSHIP IN ARTISTIC WORK
III. OWNERSHIP IN ARTISTIC WORK

Generally, the author of an artistic work is taken to be the first owner of the copyright in the work.29 The author of an
artistic work (other than a photograph) is the artist.30 In case of photograph, the person taking photograph is the
author of it.31
Further, section 17, proviso (b) of the Copyright Act, 1957, provides that where a photograph is taken, or a painting
or portrait drawn, or an engraving or cinematograph film made for valuable consideration at the instance of any
person, such person in the absence of any agreement to the contrary, will be the first owner of the copyright in the
work.
In case of any work incorporated in a cinematograph work, nothing contained in the abovementioned proviso shall
affect the right of the author of original literary, dramatic, musical or artistic work.
29 Section 17, Copyright Act 1957; see also section 11(1), CDPA, 1988.
30 Section 2(d) (iii), Copyright Act 1957.
31 Section 2(d)(iv), id.
End of Document
Work made in course of employment
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > III. OWNERSHIP IN ARTISTIC WORK

Work made in course of employment
In case of artistic work of employees, the discussion may be made into two parts: first regarding employee’s work
for newspaper, magazine or similar periodical and second, works made by employees generally but in course of
employment.
Section 17, proviso (a) of the Copyright Act, 1957, provides that in absence of any agreement to the contrary, the
employer shall be the first owner of the copyright in the work for the purpose of publication of the work in any
newspaper, magazine or similar periodical. But in all other respects, the author is the first owner of the copyright in
the work.
Regarding second category, section 17, proviso (c) of the Copyright Act, 1957, provides that where a work is made
in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the
absence of any agreement to the contrary, be the first owner of copyright therein.
In case of any work incorporated in a cinematograph work, nothing contained in the abovementioned proviso shall
affect the right of the author of original artistic work.
End of Document
IV. OWNERSHIP IN COMPUTER PROGRAMMES
V K AHUJA
IV. OWNERSHIP IN COMPUTER PROGRAMMES

The author of a work is generally the first owner of the copyright therein.32 “Author” is defined to mean in relation to
a literary work which includes computer programmes also, the author of the work.33 In relation to any literary,
dramatic, musical or artistic work which is computer-generated, author is the person who causes the work to be
created.34
Where an employee in the course of his employment makes a computer programme, his employer is the first owner
of any copyright in the computer programme subject to any agreement to the contrary.35 But at the same time, the
employer cannot safely assume that he will own the copyright in every thing produced by his employees. For
example, if an employee writes a computer programme to help with his work where he is not employed as a
computer programmer, his job is not to write computer programmes, the employer in such a case cannot
necessarily assume that he owns the copyright in that particular programme. Similarly, if a person employed as an
accountant writes a computer programme to help with the production of financial accounts, he will own the copyright
in that programme if he writes it in his own time, using his own equipment.
On the other hand, if an employee has produced a computer programme outside the normal course of his duties,
but has used the employer’s equipment or done it during the hours of his employment, the ownership of copyright is
more difficult to predict, although it is more likely that the employer may be treated as owner of that work.
32 Section 17,id.
33 Section 2(d)(i), id.
34 Section 2(d)(vi), id.
35 Section 17(c), id.
End of Document
V. OWNERSHIP IN CINEMATOGRAPH FILMS
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > V. OWNERSHIP IN CINEMATOGRAPH
FILMS

Generally, the author of a cinematograph film is the first owner of the copyright in such film.36According to section
2(d)(v) of the Act, ‘author’ in relation to a cinematograph film is the producer of it. Further, according to section 2(uu)
of the Copyright Act, 1957, “producer” in relation to a cinematograph film means a person who takes the initiative
and responsibility for making the work. However, according to proviso (b) to section 17, where a cinematograph film
is made for valuable consideration at the instance of any person, such person shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein. Thus, when a cinematograph film producer
commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his
cinematograph film, or composing music or lyric thereof, i.e. the sounds for incorporation or absorption in the sound
track associated with the film, then he becomes the first owner of the copyright therein and no copyright subsists in
the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of
the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows
according to proviso (c) to section 17, if the composer of music or lyric is employed under a contract of service or
apprenticeship to compose the work.
The rights of a music composer or lyricist can be defeated by the producer of a cinematograph film in the manner
laid down in provisos (b) and (c) of section 17 of the Act.37
In Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Others ,38 the court stated that where a person financed and took
the risk of making the work and directed others to do the work for valuable consideration, such person was the
owner of copyright.
An owner is a person who has spent towards the production of the film and who has not merely arranged for the
funds but in fact has taken the risk of commercial failure, i.e. one who will loose money if the film flops and who will
reap the fruit of commercial success if the film is a hit.39
In case of a cinematograph film made in the course of the author’s employment under a contract of service or
apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the
copyright therein.40
The 2012 amendment now provides that the rights of the authors of original literary, dramatic, musical or artistic
works, which are incorporated in cinematograph film shall not be affected. This means that even if a cinematograph
film is made at the instance of film producer for valuable consideration, or in the course of the producer’s
employment under a contract of service, the rights of authors of underlying works, i.e. literary, dramatic, musical
and artistic works shall remain unaffected.
In Adai Mehra Production Pvt. Ltd. v. Sumeet P. Mehra & Anr .,41 the issue involved was with respect to the making
of remake of the Hindi film ‘Zanzeer’. The court stated that “having taken a view that copyright in respect of
cinematograph film and the underlying work are two different copyrights which can be claimed by two different
owners, in my prima facie view, the assignment of the copyright in the film ‘Zanzeer’ in favour of the petitioner would
not amount to assignment of the copyright in the underlying work which was claimed by the owner of copyright of
Page 2 of 2
such underlying work separately.” The court further stated that the petitioner was entitled to remake the film in Telgu
and Hindi language based on the screen play in respect of which the copyright was claimed by the writers of the
screenplay and thus respondents were liable to make the title good in respect thereof which was a separate
copyright under the provisions of Copyright Act.
36 Section 17,id.
37 See also Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association and Others , (1977) 2 SCC
820 [LNIND 1977 SC 128], para 17 .
38 Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Others , 2013 (55) PTC 95 (Bom) at p. 111 .
39 Id. at p. 112.
40 Proviso (c) to section 17, Copyright Act, 1957.
41 Adai Mehra Production Pvt. Ltd. v. Sumeet P. Mehra & Anr. , 2014 (59) PTC 575 (Bom) at p. 624 .
End of Document
Prospective owner of a cinematographic film
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > V. OWNERSHIP IN CINEMATOGRAPH
FILMS

Prospective owner of a cinematographic film
In Time Warner Entertainment Company, L.P. & Others v. RPG Netcom ,42 the court observed that as law of
copyright does not protect ideas but only the material expression of the idea, i.e., the work, it is not difficult to
appreciate why the legislature in defining the term “author” in relation to cinematograph films has specifically
stipulated that the owner of the film at the time of it’s completion will mean the author of the film. Ownership rights
do not subsist and exist in any person before the film is completed. “Prospective owner” of a cinematographic film
while it is under production before completion cannot be regarded as an author or first owner of the film under the
Act.
42 Time Warner Entertainment Company, L.P. & Others v. RPG Netcom , 2007 (34) PTC 668 (Del) (DB) at p. 673 .
End of Document
VI. OWNERSHIP IN SOUND RECORDINGS
V K AHUJA
VI. OWNERSHIP IN SOUND RECORDINGS

The author of a work is generally the first owner of the copyright therein. According to section 2(d)(v) of the
Copyright Act, 1957, ‘author’ in relation to a sound recording is the producer. “Producer” in relation to a sound
recording, means ‘a person who takes the initiative and responsibility for making the work’.43
In Gee Pee Film Pvt. Ltd. v. Pratik Chowdhury & Others ,44 the Calcutta High Court held that the word
“responsibility” appearing in section 2(uu) of the Act did not refer to financial responsibility, but it meant
“consequential legal responsibility” for such recording. It is therefore, not only financing the production of a sound
recording but also taking necessary legal steps that makes a person producer of such sound recording.
In case of a sound recording made in the course of the author’s employment under a contract of service or
apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the
43 Section 2(uu), Copyright Act, 1957.

44 Gee Pee Film Pvt. Ltd. v. Pratik Chowdhury & Others , 2002 (24) PTC 392 at pp. 400-01 .
45 Proviso (c) to s 17, Copyright Act 1957.
End of Document
VII. OWNERSHIP IN GOVERNMENT WORK
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > VII. OWNERSHIP IN GOVERNMENT
WORK
VII. OWNERSHIP IN GOVERNMENT WORK

In case of a government work, in the absence of any agreement to the contrary, government is the first owner of the
Section 2(k) of the Copyright, Act 1957, defines “government work” to mean a work which is made or published by
or under the direction or control of -
(i) the government or any department of the government;

(ii) any Legislature in India;
(iii) any court, tribunal or other judicial authority in India.
Under section 17(d), the Government shall, in the absence of any agreement to the contrary, be the first owner of
the copyright in a government work. In the absence of any agreement to the contrary, the Government shall be the
first owner of the copyright in the judgments of the Supreme Court, the same being a government work under
section 2(k) .47
A conjoint reading of section 17(d) and section 52(1)(q)(iv), having regard to section 16, would clearly shows that
section 17(d) is subject to section 52(1)(q)(iv). This means that the reproduction or publication of any judgment or
order of a court, tribunal or other judicial authority shall not constitute an infringement of copyright and, therefore,
the judgment or order of a court, tribunal or other judicial authority cannot be treated as a Government work even
for the Government to be the first owner of the copyright therein in terms of section 17(d). The rationale behind this
is that the judgment or order is “of” a court, tribunal or other judicial authority and is not “a work which is made or
published by or under the direction or control of the court, tribunal or other judicial authority” to bring it within the
term “Government work” as defined in section 2(k) .48
46 Proviso (d) to s 17, id.

47 Eastern Book Company v. D.B. Modak (2008) 1 SCC 1 [LNINDU 2007 SC 1] at p. 94 : AIR 2008 SC 809 [LNINDU
2007 SC 1]: 2008 (36) PTC 1.
48 Infoseek Solutions & Another v. Kerala Law Times & Others , 2007 (34) PTC 231 (Ker.) at p. 239 .
End of Document
Government Work: Copyright Actvis-à-visInformation Technology Act
V K AHUJA
In India, 2e 2015 > CHAPTER 3 Ownership of Copyright > VII. OWNERSHIP IN GOVERNMENT
WORK

Government Work: Copyright Act vis-à-vis Information Technology Act
The Copyright Act is a comprehensive legislation regarding the law relating to copyright in India. Therefore, as far
as copyright in respect of information technology is concerned, it has to be considered with reference to the
provisions of the Copyright Act. Section 70 of the Information Technology Act49 is directly related to sections 2(k)
and 17(d) of the Copyright Act and Government’s authority to notify the system as a protected system applies only
to such of the system which answers the description of “government work”. Description of government work is
defined under section 2(k) of the Copyright Act on which Government is conferred copyright under section 17(d) .50
A harmonious construction of Copyright Act and Information Technology Act is necessary and questions regarding
the copyright for the computer systems, electronic devices and other works under the Information Technology Act
are covered by the Copyright Act. Copyright (Amendment) Act, 1999, shows that copyrights with regard to the data
work, data base, computer work, etc. are specifically covered under the Copyright Act. All matters connected with
copyrights can be resolved by the provisions of the Copyright Act as it is a special Act for that purpose and matters
regarding information technology have to be resolved by applying the provisions of the Information Technology Act
as it is a special Act for that purpose. There is no conflict between the provisions of Copyright Act and section 70 of
Information Technology Act.51
49 70. Protected system—

(1) The appropriate Government may, by notification in the Official Gazette, declare any computer resource which
directly or indirectly affects the facility of Critical Information Infrastructure, to be a protected system.
Explanation.—For the purposes of this section, “Critical Information Infrastructure” means the computer resource,
the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public
health or safety.
(2) The appropriate Government may, by order in writing, authorise the persons who are authorised to access
protected systems notified under sub-section (1).
(3) Any person who secures access or attempts to secure access to a protected system in contravention of the
provisions of this section shall be punished with imprisonment of either description for a term which may extend to
ten years and shall also be liable to fine.
(4) The Central Government shall prescribe the information security practices and procedures for such protected
system.
50 Firos v. State of Kerala , 2007 (34) PTC 98 (Ker.)(DB) .
51 Id. at p. 105.
End of Document
VIII. OWNERSHIP IN THE WORK OF PUBLIC UNDERTAKING
V K AHUJA
VIII. OWNERSHIP IN THE WORK OF PUBLIC UNDERTAKING

In the case of a work made or first published by or under the direction or control of any public undertaking, such
public undertaking, in the absence of any agreement to the contrary, is the first owner of copyright therein. “Public
undertaking” means (i) an undertaking owned or controlled by the government; or (ii) a government company as
defined in section 617 of the Companies Act 1956 (now section 2 clause 45 of the Companies Act, 2013); or (iii) a
body corporate established by or under any Central, Provincial or State Act.52
52 Proviso (dd) to section 17, Copyright Act 1957.
End of Document
IX. OWNERSHIP IN THE WORK OF INTERNATIONAL ORGANISATION
V K AHUJA
IX. OWNERSHIP IN THE WORK OF INTERNATIONAL ORGANISATION

In the case of a work made or first published by or under the direction or control of any international organisation,
such organisation, in the absence of any agreement to the contrary, is the first owner of copyright therein.53
53 Proviso (e) to section 17,id.
End of Document
X. TRANSMISSION OF COPYRIGHT IN MANUSCRIPT BY TESTAMENTARY
DISPOSITION
V K AHUJA
X. TRANSMISSION OF COPYRIGHT IN MANUSCRIPT BY TESTAMENTARY

DISPOSITION
Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical work, or to an artistic
work, and the work was not published before the death of the testator, the bequest shall, unless the contrary
intention is indicated in the testator’s will or any codicil thereto, be construed as including the copyright in the work
in so far as the testator was the owner of the copyright immediately before his death.54
54 Section 20,id.
End of Document
CHAPTER 4 Economic Rights of Copyright Owners
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners

The owner of copyright in a work enjoys negative rights. Although the phrase “exclusive rights” is used in section 14
of the Copyright Act, 1957, yet the copyright owner does not have a positive right to exploit his work, whether by
making copies, performing it or otherwise. The right enjoyed by copyright owner is a negative one i.e. it is the right
to prevent others from using his work in certain ways, and to claim compensation for the usurpation of that
right.1The exclusive rights are also known as economic rights of the copyright owner. These exclusive rights are
subject to the provisions of the Act.
Copyright is purely a creation of the statute under the Act of 1957. What rights the author has in his work by virtue
of his creation, are defined in sections 14 and 17 of the Act. These are exclusive rights, but subject to the other
provisions of the Act. In the first place, the work should qualify under the provisions of section 13, for the
subsistence of copyright. Although the rights have been referred to as exclusive rights, there are various exceptions
to them which are listed in section 52 .
Section 16 provides that no person is entitled to copyright or any similar right in any work, whether published or
unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time
being in force. However, any right or jurisdiction to restrain a breach of trust or confidence is not to be abrogated by
this provision.
Thus, as per section 16, common law protection of copyright is not available. Common law rights under copyright
law were abrogated earlier by section 31 of the Copyright Act, 1911, which was enacted to amend and consolidate
the law relating to copyright.
1 Hugh Laddie et. al., THE MODERN LAW OF COPYRIGHT (London, 1980), p. 45. In Time Warner Entertainment
Company, L.P. & Others v. RPG Netcom , 2007 (34) PTC 668 (Del) (DB) at p. 672, the court held that the object of
copyright law is to prevent copying of physical material and form in the field of literature and art. It is essentially a
negative right given to the author, in the sense that the Act does not confer the owner with a right to publish his work
but the right to prevent third parties from doing that which the owner is solely allowed to do under the Act.
End of Document
I. COPYRIGHT: A BUNDLE OF RIGHTS
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners
I. COPYRIGHT: A BUNDLE OF RIGHTS

The copyrights conferred under section 14 of the Act consist of a bundle of rights. The owner of a copyright is
entitled to assign and licence each of those rights seperately or in bundles. The bundle of rights could vary in
complexity depending upon the nature of the work - literary, dramatic, musical recording or cinematographic films.
In the case of music videos, which is essentially a cinematographic film, rights could subsist in the following works:
lyrics of the song (literary), music composition (musical), choreography and performance (dramatic), the sets
(artistic), the capturing of the musical work on tapes (sound recording) and the capturing of it all on a film
(cinematographic film). Under section 14, the rights to reproduce, perform, adapt, translate, make copies of these
works exists. Each of these rights could be assigned, reassigned and licensed. For example, the owner of the rights
in a cinematographic film, can licence the literary and musical rights in the lyrics to a radio channel to be aired, and
also assign the license to make copies of the cinematographic films on cassettes and CDS etc. to a person and so
on. The work thus follows a trail of licences.2 It is, however, noteworthy that after the 2012 amendment, the rights of
the authors of original literary, dramatic, musical or artistic works, which are incorporated in cinematograph film
shall not be affected. This means that even if a cinematograph film is made at the instance of film producer for
valuable consideration, or in the course of the producer’s employment under a contract of service, the rights of
authors of underlying works, i.e. literary, dramatic, musical and artistic works shall remain unaffected.3
In Star India Pvt. Ltd. v. Piyush Agarwal & Ors. ,4 the court stated that the effect of having a copyright, i.e. benefits
to be derived from a copyrighted work, were those as stated in section 14. As per section 14, the different
subjects/works which were the subject matters of copyright, caused/brought about different/manifold rights i.e.,
whereas one type of work gave certain rights the other type of work gave separate rights; which could be either
larger or lesser. The court further stated that the equivalent rights with respect to a performance of a performer i.e.
qua a copyright in a performance under section 38 (which was not dealt with in section 14 ) were those as
contained in section 38A .
2 Super Cassette Industries v. Nirulas Corner House (P) Ltd. , 2008 (37) PTC 237 (Del.) at pp. 243-44 .
4 Star India Pvt. Ltd. v. Piyush Agarwal & Ors. , 2014 (58) PTC 169 (Del) at pp. 175-76 .
End of Document
II. LITERARY, DRAMATIC AND MUSICAL WORKS
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners > II. LITERARY,

The Copyright Act, 1957, provides to the owner of copyright in relation to a literary, dramatic or musical work, the
exclusive right, subject to the provisions of this Act, to do or authorize the doing of any of the following acts or any
substantial part thereof, namely;
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the
work in sub-clauses (i) to (vi).5
The aforesaid rights are subject to the provisions of assignment and licensing and their limitations thereof. Further,
the rights of a licencee are not the same as those of the owner and there is a fine distinction between the limited
rights of the licencee and those of the owner.6
5 Section 14(a),Copyright Act 1957.

6 John Wiley & Sons Inc. & Others v. Prabhat Chander Kumar Jain & Others , 2010 (44) PTC 675 (Del) at p. 697 .
End of Document
Reproduction of work in any material form
V K AHUJA

In Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. ,7 Lord Reid observed that broadly reproduction meant
copying and did not include cases where an author or compiler produced a substantially similar result by
independent work without copying. If he did copy, the question whether he had copied a substantial part depended
much more on the quality than on the quantity of what he had taken. One test might be whether that part he had
taken was novel or striking or merely a common place arrangement or ordinary words or well-known data. The
correct approach was first to determine whether the plaintiff’s work as a whole was ‘original’ and protected by
copyright, and then to inquire whether the part taken by the defendant was substantial. In Hanfstaengl v. W.H.
Smith & Sons ,8 Kekewich J. stated that “a copy is that which comes so near to the original as to suggest that
original to the mind of the person seeing it.”
In Franz Hanfstaengl v. H. R. Bainos and Co. , 1895 AC 20, the House of Lords observed:
The question may be solved by taking each of the works to be compared as a whole and determining whether there is not
merely a similarity or resemblance in some leading feature or in certain of the details, but whether keeping in view the idea
and general effect created by the original, there is such a degree of similarity as would lend one to say that the alleged
infringement is a copy or reproduction of the original.
The meaning of reproduction was explained in British Northrop v. Texteam Blackburn ,9 in which it was held that
“there must be a high degree of similarity before one thing can be said to be ‘reproduction’ of another; but minor or
trivial differences will not prevent one work from being a reproduction of another. It may be that reproduction has
much the same meaning as copy, and that it suffices for a reproduction if it makes a substantial use of the features
of the original work in which copyright subsists.”10
Further, in Francis Day & Hunter v. Bron ,11 following principles were laid down by Wilmer L.J. to consider whether
the acts of defendant constitute reproduction of plaintiff’s work:
(i) There must be a sufficient degree of objective similarity between the two works and there should be some
causal connection between the plaintiff’s and the defendant’s work.
(ii) Whether the defendant was or was not consciously aware of such causal connection is quite irrelevant.
(iii) Where there is a substantial degree of objective similarity, this of itself will afford prima facie evidence to
show that there is a causal connection between the plaintiff’s and defendant’s work; at least, it is a
circumstance from which the inference may be drawn.
(iv) The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference
of causal connection arising from the objective similarity, but is in no way conclusive.12
The issue whether copyright subsists in loose sheets came up before Delhi High Court in Orient Longman Limited
v. Inderjeet Anand & Another .13 The court while overruling the judgement of trial court held that the loose sheets
would come within the ambit of the expression “any substantial part thereof” used in section 14 of the Copyright Act.
Page 2 of 2
Therefore, printing of the loose sheets constituting reproduction of substantial part of the said work in material form
would also amount to violation of copyright.14
7 Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. , (1964) 1 All ER 465.
8 Hanfstaengl v. W.H. Smith & Sons , (1905) I Ch 519 .
9 British Northrop v. Texteam Blackburn , (1974) RPC 57.
10 Id. at p. 72.
11 Francis Day & Hunter v. Bron , (1963) Ch D 587.
12 Id. at p. 614.
13 Orient Longman Limited v. Inderjeet Anand & Another , 2005 (30) PTC 11 (Del) (DB) .
14 Id. at pp. 12-13.
End of Document
Reproduction of work in computers
V K AHUJA

Reproduction of work in computers
In India, the Copyright (Second Amendment) Act, 1994, amended section 14(1)(a)(i) of the Copyright Act, 1957,
which provided “to reproduce the work in any material form”. It now provides “to reproduce the work in any material
form including the storing of it in any medium by electronic means”.
In Apple Computer Inc. v. Mackintosh Computers Ltd .,15 the court held that it was an infringement of the copyright
in a literary, dramatic, musical work to reproduce the work in computer-readable form, such as on magnetic tape or
in a magnetic core.
15 Apple Computer Inc. v. Mackintosh Computers Ltd. , (1988) 44 D.L.R. (4th) at p. 74 .
End of Document
Reproduction of compilated works
V K AHUJA

Reproduction of compilated works
Reproduction or copying in relation to certain compilated works by a subsequent compiler is not allowed as there
exists a separate copyright in such works. Thus, in Kelly v. Morris ,16 it was held that in case of a dictionary, map,
guidebook, or directory, where there are certain common objects of information which must, if described correctly,
be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first
compiler has done. In the case of a road-book, he must count the milestones for himself, and the only use that he
can legitimately make of a previous publication is to verify his own calculations and results when obtained. The
principle is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has done for the
purpose of producing his work.17 Similarly, in case of abridgments, précis, synopses and similar works, the question
whether copyright is infringed in the original work will depend upon whether the production has involved a
substantial use of copyright material, or only of ideas and information. Any work which consists of extracts from the
original, either verbatim, or with merely colourably alterations of language, which is not just fair use of the work,
would constitute an infringement.
16 Kelly v. Morris , (1866) L.R. 1 Eq. 697.

17 See also Independent Television Publications Ltd. v. Time Out Ltd . (1984) F.S.R. 64 .
End of Document
Reproduction in relation to dramatic works
V K AHUJA

Reproduction in relation to dramatic works
A dramatic work may be infringed by a second dramatic work which reproduces the dramatic incidents of the former
without using or imitating language. It is not necessary that the words in dialogue should be the same. The mode in
which the ideas are worked out and presented, may constitute a material portion of the whole work. What is,
therefore important is, the dramatic value and importance of what has been taken, even though the portion may in
fact be small and the actual language not copied. However, if the incidents in common between the two works are
drawn from common stock and common knowledge, resemblance is bound to come and if worked out separately
and on independent lines, the later work may not result in infringement of the former.
End of Document
Reproduction in relation to musical works
V K AHUJA

Reproduction in relation to musical works
In relation to musical works, the important question to be considered is whether the alleged infringer has made use
of a substantial part of the skill and labour of the original composer. If the appropriated music can be recognized by
the ear, the adding of variations will make no difference. The court may take assistance of expert evidence in
recognizing the similarities or differences which may exist between the two musical works. A musical work can also
be reproduced without taking a single note directly from the original. Further, making of an adaptation of plaintiff’s
musical work without his permission is not allowed.
End of Document
Issue of copies to the public
V K AHUJA

The owner of copyright has the exclusive right to issue copies of the work to the public not being copies already in
circulation.18 Therefore, once copies of a work have been validly issued to public, the subsequent circulation of
those copies shall not infringe the rights of the owner. Thus, copies already sold or in circulation are excluded from
the exclusive right to issue copies. This is natural since in the case of copies already sold or in circulation there can
be no restriction in reissuing those copies to the public by persons who have acquired them lawfully.
The genesis of the principle of exhaustion of rights is based on the theory that the right holder can only control the
first sale of the article and exercise the rights of the same and cannot complain of the infringement on each and
every subsequent sale of the same. In John Wiley & Sons Inc. & Others v. Prabhat Chander Kumar Jain & Others
,19 the defendants after purchasing the low priced editions of the books from the licencees of the plaintiffs exported
them to those countries for which they were not meant. The court stated that the owner had full right to enjoy the
property and if the property was purchased from the owner only then would the owner lost his rights. In this case
“the purchaser after purchasing from the exclusive licencee cannot by claiming the principle of exhaustion or
extinguishment of rights defeat the rights of the owner.”
It is noteworthy that the term ‘publication’ means making a work available to the public by issue of copies or by
communicating the work to the public.20 The definition of “publication” therefore, includes issue of copies to the
public and communication of the work to public.
Megarry J. in British Northrop v. Texteam 21 observed that publication took place wherever the publisher invited the
public to acquire copies, not where the copies were received. While elaborating the meaning of “issued to the
public”, Megarry J. put reliance upon the following observations in Francis, Day and Hunter v. Feldman & Co .:22
“Issued to the public” can mean no more than an invitation or a right to the public to acquire copies. Notice of the
publication is given to the public by the copies sent to the British Museum and to the universities. I do not say that that
satisfies the statute. I think it does not, but ‘issued to the public’ can mean no more than having them on sale. You need not
advertise and you need not call the attention of the public to the fact that you have published, if you are prepared to supply
on demand. Here, the moment there came a demand they fully satisfied it.
18 Section 14(a)(ii), Copyright Act 1957.

19 John Wiley & Sons Inc. & Others v. Prabhat Chander Kumar Jain & Others , 2010 (44) PTC 675 (Del) at pp. 707, 710-
11 .
Page 2 of 2
20 Section 3, Copyright Act 1957.

21 British Northrop v. Texteam , (1974) RPC 57 at p. 67 .
22 Francis, Day and Hunter v. Feldman & Co. , (1914) 2 Ch. 728 .
End of Document
Communication to the public
V K AHUJA

Communication to the public
Section 2(ff) of the Copyright Act, 1957, defines ‘communication to the public’ to means:
“[M]aking any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any
means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times
chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or
performance so made available…”.
The exclusive right relates only to communicating the work to the public and not a private audience. The
explanation to the definition of “communication to the public” provides that “communication through satellite or cable
or any other means of simultaneous communication to more than one household or place of residence including
residential rooms of any hotel or hostel shall be deemed to be communication to the public”. The object of this
provision is to restrict unauthorized commercial exploitation of the work by others and not private and domestic use
of the work. Thus, every broadcasting organisation, shop, departmental store, showroom, emporium, restaurant,
hotel, club, disco, bars, office establishments, television channels, music concerts etc. which play music, impinges
on the rights of copyright owner unless they get the permission of the copyright owner or the copyright society, as
the case may be.23
The author’s right of communication to the public is threatened by the Internet. The Internet with its unprecedented
ability to provide an easy, relatively inexpensive, and flawless means to distribute, modify and create both original
and copied material to a mass audience, threatens to upset the balance between private and public interest created
by the copyright legal system. Uploading copyright work on the Internet may cause a serious threat to the right of
communication and the right of reproduction of the copyright owners, as the same may be downloaded by a large
number of people throughout the world. Being the international nature of Internet, the copyright owner may not even
be able to locate the infringers in many cases. Even though the infringers can be located yet copyright owner may
not be able to sue them because of conflict of laws or lack of financial viability or otherwise.
23 See also Indian Performing Right Society Ltd. v. R. Krishnamurthy & Another , 2012 (49) PTC 362 (Del.) at p. 364 .
End of Document
Public
V K AHUJA

Public
The meaning of ‘public’ can be gathered from looking at the nature of the audience. Where the members of
audience are from the domestic and quasi-domestic circle then the communication is not public. In all other cases,
the communication shall be deemed to be in public. The courts tend to give as wide a meaning to ‘public’ as
reasonably possible as a mean of ensuring that the copyright owner is compensated for unlicensed use of his
copyright.25
In Harms v. Martans Club ,26 the plaintiffs were the owners of the copyright in a musical play called “Tip Toes”. The
defendants were the proprietors of a club for dining and dancing, which had a membership of 1800. At the club of
the defendants the musical play was performed by their orchestral band before an audience of about 150 members
and 50 guests. The question was whether the performance before the members of the club was a performance of
the musical play in public. The court held that it was. In so deciding the court considered the nature of the right of
the author who was protected under the Copyright Act. The court stated that the purpose was to protect the author
from any injury or loss of profit by reasons of any representation of his composition in public which would have
ordinarily fetched him financial gain. The performance was held to be at a public place for a profit. It considered the
performance as in public.
The court distinguished such an audience from a private or domestic audience which would consist of members of
the family and members of the household. The court also considered the place where the performance took place
and held that the club, which accepted members from the public and guests, cannot be considered as a place
which was equivalent to an enlarged family.
25 See Canadian Admiral Corpn. Ltd. v. Rediffusion Inc. (1954) Excr 382, 14 Foxpat C 144 .
26 Harms v. Martans Club , (1927) 1 Ch 526.
End of Document
To make any cinematograph film or sound recording
V K AHUJA

To make any cinematograph film or sound recording
It is the right of copyright owner of literary, dramatic or musical work to make or authorise others to make any
cinematograph film or sound recording with respect to that work. However, once the author of a lyric or musical
work authorised the producer of cinematograph film to make a cinematograph film of his composition by recording it
on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the owner of
the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in
public. The author of a lyric or a musical work, however, retains the right of performing it in public for profit
otherwise than as a part of the cinematograph film and he cannot be restrained from doing so.27
27 Music Broadcast Private Limited v. Indian Performing Right Society Limited , 2011 (47) PTC 587 (Bom) at pp. 614-15 .
End of Document
Adaptation of the work
V K AHUJA

Adaptation of the work
Copyright also subsists in the adaptation of literary, dramatic and musical works. The copyright owner of any such
work has the exclusive right to make any adaptation of it. Thus, making of adaptation of any such work without
authority of the copyright owner is an infringement.
In India, section 2(a) of the Copyright Act, 1957, defines ‘adaptation’ to mean:
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of
performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which
the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in
a book, or in a newspaper, magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription28 of the work; and
(v) in relation to any work, any use of such work involving its re-arrangement or alteration.
Clause (v) has been inserted in the Act by the Copyright (Second Amendment) Act, 1994. In relation to musical
work, however, if a musical arranger so decorates, develops, transfers to a different medium or otherwise changes
the simple music of a popular song as to make his arrangement fall within the description of an original musical
work, such arrangement or adaptation is capable of attracting an independent copyright. Such new arrangement
shall not amount to infringement of the musical work of the author.
In addition to the aforesaid rights under section 14 of the Copyright Act, 1957, the author of an original manuscript
of a literary, dramatic or musical work has a right to share in the resale price of such manuscript in India.
28 ‘Transcription’ in relation to music may be defined as an arrangement of a musical composition for some instrument or
voice other than the original.
End of Document
Resale share right in original copies
V K AHUJA

Section 53A provides that in the case of resale for a price exceeding Rs. 10,000/- of the original manuscript of a
literary, dramatic or musical work, the author of such work if he was the first owner of rights under section 17 or his
legal heirs shall, notwithstanding any assignment of copyright in such work, have a right to share in the resale price
of such original manuscript. Such a right shall, however, cease to exist on the expiration of the term of copyright in
the work.
The share of author in the resale price shall be fixed by the Copyright Board which shall not exceed ten percent of
the resale price.
This provision is inserted to give the authors of original manuscripts of literary, dramatic or musical works the right
to a share in the subsequent sales of such original manuscripts, which is the right commonly known as ‘droit de
suite’ and which was contemplated optionally for Member States by Article 14 ter of the Berne Convention. Besides
promoting the interests of authors within India, this provision would also have the effect of obliging those other
Member States of the Berne Convention which provide for droit de suite in their own laws to accord similar rights to
Indian authors in respect of sales effected in their countries.
End of Document
III. COMPUTER PROGRAMME
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners > III. COMPUTER
PROGRAMME
III. COMPUTER PROGRAMME

Under Copyright Act, 1957, the owner of copyright has the exclusive right to do or authorize the doing of any of the
following acts in respect of a computer programme or any substantial part thereof namely:
(i) to reproduce the computer programme in any material form including the storing of it in any medium by
electronic means;
(ii) to issue copies of the computer programme to the public not being copies already in circulation;
(iii) to perform the computer programme in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the computer programme;
(v) to make any translation of the computer programme;
(vi) to make any adaptation of the computer programme;
(vii) to do, in relation to a translation or an adaptation of the computer programme, any of the acts specified in
relation to the computer programme in (i) to (vi);
(viii) to sell or give on commercial rental, or offer for sale or for commercial rental, any copy of the computer
programme; provided that such commercial rental does not apply in respect of computer programme where
the programme itself is not the essential object of the rental.29
29 Section 14(a) and (b), Copyright Act 1957.
End of Document
Reproducing or copying the computer programme
V K AHUJA
PROGRAMME

Reproducing or copying the computer programme
Copying in relation to a computer programme means reproducing the computer programme in any material form
and this includes storing the work in any medium by electronic means. Thus, any form of storage by modern
technological means will amount to copying. For example, making a copy of a computer programme on a magnetic
disk amounts to copying. Further, copying may take the form of copying of lines of instruction, either verbatim or
only colourably imitated, or the structure of the plaintiff’s programme, in whole or in part.
End of Document
V K AHUJA
PROGRAMME

The copyright owner of computer programme has exclusive right to issue copies of the computer programme to the
public not being copies already in circulation.30
30 Sections 14(a)(ii) and 14(b)(i), id.
End of Document
Right of rental
V K AHUJA
PROGRAMME

Right of rental
Section 14(b)(ii) of the Copyright Act, 1957, provides that owner of copyright of a computer programme has the
exclusive right to sell or give on commercial rental or offer for sale or for commercial rental, any copy of the
computer programme. However, the right of commercial rental is not available in respect of computer programme
where the programme itself is not the essential object of the rental.
“Commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer
programme for non-profit purposes by a non-profit library or non-profit educational institution.31Thus, a non-profit
library or non-profit educational institution which receives grants from the Government or are exempted from
payment of tax under the Income Tax Act, 1961 can rent, lease or lend a lawfully acquired copy of a computer
programme for non-profit purposes without infringing the economic rights of the copyright owner of such computer
programme.
The reason of providing rental rights appears to have been to enable the owners of copyright in such works to
prevent legitimate copies of the works being rented out and then duplicated in circumstances beyond the owner’s
control. Thus, any rental of computer programme will amount to an infringement if done without the licence of the
copyright owner, whether or not that computer programme has already been put into circulation.
31 Section 2(fa), id.
End of Document
Performance or communication of work in public
V K AHUJA
PROGRAMME

Performance or communication of work in public
The Copyright Act, 1957, makes it a restricted act to perform the work in public, or to communicate it to the public.32
“Communication to the public” has already been discussed with respect to literary, dramatic, musical and artistic
work.
32 Sections 14(a)(iii) and 14(b)(i), id.
End of Document
Making cinematograph film or sound recording of the computer programme
V K AHUJA
PROGRAMME

Making cinematograph film or sound recording of the computer programme
It is a restricted act to make any cinematograph film or sound recording of the computer programme without
permission of the owner of copyright therein.33
33 Sections 14(a)(iv) and 14(b)(i), id.
End of Document
Making adaptation or translation of computer programme
V K AHUJA
PROGRAMME

Making adaptation or translation of computer programme
It is the exclusive right of the copyright owner of a computer programme to make adaptation or translation of the
computer programme or authorize others to make such adaptation or translation.34 Further, it is the exclusive right
of the owner of the computer programme to do any acts discussed above in relation to such adaptation or
translation.35
The expression “translation” normally envisages the conversion of a work from one language into another, in
particular one human language into another. Thus, if a high-level, source code computer programme is compiled or
converted into an object code programme, this will be an adaptation of the source code programme and therefore, a
restricted act.
34 Sections 14(a)(v), 14(a)(vi) and 14(b)(i), id.

35 Sections 14(a)(vii) and 14(b)(i), id.
End of Document
IV. ARTISTIC WORK
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners > IV. ARTISTIC WORK
IV. ARTISTIC WORK

Section 14 of the Copyright Act, 1957, confers following rights on the owner of copyright in respect of his artistic
work:
(i) to reproduce the work in any material form including - (a) the storing of it in any medium by electronic or
other means; or (b) depiction in three-dimensions of a two-dimensional work; or (c) depiction in two-
dimensions of a three-dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work; and
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in clauses (i) to
(iv).
End of Document
Right of reproduction
V K AHUJA

The copyright in an artistic work is infringed by the reproduction of it, or any substantial part of it, in any material
form without consent. It is further provided by section 14 that this includes the reproduction of the work in any
material form including - (a) the storing of it in any medium by electronic or other means; or (b) depiction in three-
dimensions of a two-dimensional work; or (c) depiction in two-dimensions of a three-dimensional work.36 Copyright
does not subsist in idea. So, if the defendant copies the plaintiff’s idea and does not appropriate the plaintiff’s labour
in putting that idea into practice, there shall be no infringement of the plaintiff’s copyright. In King Features
Syndicate v. O and M Kleeman ,37 the House of Lords held that where there was substantial similarity, that similarity
was prima facie evidence of copying which the party charged might refute by evidence that, notwithstanding the
similarity, there was no copying but independent creation.38
The issue whether the defendant’s work amounts to reproduction of plaintiff’s work is a question of fact and decided
by the court. It is very difficult to lay down a definite test of universal application to determine whether a work is
reproduction of the other work. In Associated Electronics and Electrical Industries P Ltd. v. Sharp Tools ,
Kalapatti,39 the court held:
One of the surest tests to determine whether or not there has been a violation of copyright is to see if the reader, spectator,
or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression
that the subsequent work appears to be a copy of the first. In other words, dealing with the question of infringement of
copyright of the applicant’s work by the respondent’s work, the court is to test the visual appearance of the object and
drawing, design, or artistic work in question and by applying the test viz ‘lay observer test’ whether to persons who are not
experts in relation to objects of that description, the objects appears to be a reproduction. If to the ‘lay observer’ it would not
appear to be reproduction, there is no infringement of the copyright in artistic work.
It is also an infringement to produce a three dimensional object from a drawing including a diagram, map, chart or
plan or vice-versa. Therefore, the making of every product like machines, machinery parts etc., which is a three
dimensional form, from the drawings of such objects, which is a two dimensional form, without the consent of the
copyright owner of the drawings would constitute infringement of the copyright of drawing. Since indirect copying,
that is copying from an intermediate copy will itself constitute infringement of the original, the copying of any
finished article which is made on the basis of copyright drawing will infringe the copyright in the drawing even
though the person may not have seen or be aware of this original drawing. Thus, manufacturers of spare parts of a
machine or article can prevent others from copying their products provided the drawing of the part or product was
original in the copyright sense.40 In British Leyland v. Armstrong ,41 the House of Lords held that the copyright in a
drawing whose sole purpose was to serve as the blueprint for the construction of a three dimensional article of
purely functional or utilitarian value and with no aesthetic or decorative element was capable of being infringed by
copying of the three dimensional article.42
In John Richard Brady v. Chemical Process Equipments (P) Ltd. ,43 the court while dealing with the question of
infringement of copyright in the plaintiff’s drawings by the defendant’s object, pointed out that this was to be tested
Page 2 of 3
on the visual appearance of the object and the drawing in question and applying the test (lay-observer test) whether
to persons who are not experts in relation to objects of that description the object would appear to be a
reproduction.
Similarly, a drawing made from an object i.e. a reproduction of two-dimensional work from a three-dimensional
work, without the consent of copyright owner of the drawing will constitute infringement of the two-dimensional
work.
In Camlin Pvt. Ltd. v. National Pencil Industries ,44 while reversing the decision of the single judge, the Division
Bench of Delhi High Court held that a mechanically reproduced carton by printing process was capable of being
subject matter of copyright.
The Divison Bench of Delhi High Court in Microfibres Inc. v. Girdhar & Co. & Another ,45 made observations with
respect to differences between “artistic work” under Copyright Act and “design” under Designs Act. It is the
exclusive right of the copyright holder of an original artistic work to reproduce the work in any material form. A
drawing of an imaginary futuristic automobile, which is an original artistic work, may be reproduced in the three-
dimensional material form using an element, such as a metal sheet. When the copyright holder of an original artistic
work reproduces the same in another material form, he may, or may not do so by emplyonig an industrial process
or means which may be manual, mechanical or chemical, separate or combined, on an article. If the reproduction of
the original artistic work is done by employing an industrial process, on an article, and the same results in a finished
article which appeals to the eye as adjudged solely by the eye, then the features of shape, configuration, pattern,
ornament or composition of lines or colours applied to the article by the industrial process constitutes a “design”,
within the meaning of this expression as defined under the Designs Act. It is not necessary that in every case a
design has to be preceded by an artistic work upon which it is founded. A design may also be applied to an article
directly.46
If the artistic work such as a painting or drawing has been used as the basis for designing an industrially produced
object for commerce, nevertheless the original painting or drawing would indeed enjoy full copyright protection,
while the result of the industrial application of such painting, namely, the design used in the industrial production of
the ultimate product shall enjoy lesser period of protection as stipulated under the Designs Act provided it is
registered as a design under the Designs Act.47
It is also an infringement of the copyright in an artistic work to publish it without consent of the copyright owner.
Publishing includes issuing reproduction to the public. According to section 3 of the Copyright Act, ‘publication’
means making a work available to the public by issue of copies or by communicating the work to the public.
Communication of the work to public means making any work available for being seen or heard or otherwise
enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work
regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made
available.48
36 Section 14(c)(i), id.

37 King Features Syndicate v. O and M Kleeman , 1941 AC 417.
38 Id. at p. 436.
39 Associated Electronics and Electrical Industries P Ltd. v. Sharp Tools, Kalapatti , AIR 1991 Kant 406 [LNIND 1991
KANT 57] at p. 412 : (1992) IPLR 96 at p. 105 .
40 P. Narayanan, COPYRIGHT AND INDUSTRIAL DESIGNS (Calcutta, 1995), pp. 201-02.
41 British Leyland v. Armstrong , (1986) RPC 279.
42 Three-dimensional geometrical shapes such as globes, balls, tubes, squares or cubes or cuboids, etc. cannot be
protected by copyright since that would give the copyright owner a monopoly over a simple, public-domain three-
dimensional shape; see Federation of Industries of India & Another v. G. Kesavalu Naidu , 2011 (48) PTC 496 (Del) at
p. 503 .
43 John Richard Brady v. Chemical Process Equipments (P) Ltd. , AIR 1987 Del. 372 [LNIND 1987 DEL 273].
44 Camlin Pvt. Ltd. v. National Pencil Industries , 2002 (24) PTC 349 (Del) (DB) .
Page 3 of 3
45 Microfibres Inc. v. Girdhar & Co. & Another , 2009 (40) PTC 519 (Del.) (DB) .
46 Id. at p. 548.
47 Id. at p. 552.
48 Section 2(ff), Copyright Act 1957.
End of Document
V K AHUJA

Apart from the aforesaid rights which are available to the author of an artistic work under section 14 of the Copyright
Act, 1957, the author of an original copy of a painting, sculpture or drawing has a right to share in the resale price of
such original copy. Section 53A provides that in case of resale for a price exceeding Rs. 10,000/- of the original
copy of a painting, sculpture or drawing, the author of such work if he was the first owner of rights under section 17
or his legal heirs shall, notwithstanding any assignment of copyright in such work, have a right to share in the resale
price of such original copy. Such a right shall, however, cease to exist on the expiration of the term of copyright in
the work. The share of author in the resale price shall be fixed by the Copyright Board which shall not exceed ten
percent of the resale price.
End of Document
V. CINEMATOGRAPH FILM
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners > V. CINEMATOGRAPH
FILM
V. CINEMATOGRAPH FILM
Section 14(d) of the Copyright Act, 1957, provides that the owner of cinematograph film has the exclusive right
subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or
any substantial part thereof, namely;
(i) to make a copy of the film, including - (a) a photograph of any image forming part thereof; or (b) storing of it
in any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film; and
(iii) to communicate the film to the public.
Communication of film to the public includes communication through satellite or cable.49
49 Section 2(ff), explanation, id.
End of Document
Making of copies
V K AHUJA
FILM

Making of copies
The Copyright Act, 1957, provides that the owner of cinematograph film has the exclusive right to make a copy of
the film, including a photograph of any image forming part thereof.50 The exclusive right available to the owner of
copyright in cinematograph film is to copy the recording of a particular film. It is, therefore clear that production by
another person of the same film does not constitute infringement of copyright provided that it had not been
reproduced by a process of duplication i.e. by using mechanical contrivance. The expression ‘to make a copy of the
film’ would mean to make a physical copy of the film itself and not another film which merely resembles the film.
The Bombay High Court in Star India Private Limited v. Leo Burnett (India) Private Limited ,51 observed:
The making of another film is not included under section 14(d)(i) and such other film, even though it resembles completely
the copyrighted film, does not fall within the expression ‘to make a copy of the film’. Therefore, if the film has been filmed or
shot separately by a person and it resembles the earlier film, the subsequent film is not a copy of the first film and,
therefore, does not amount to infringement of whole of the copyright of the first film. The position in the case of literary,
dramatic or artistic work seems to be different. A narrow copyright protection is accorded to a film/sound recording than for
literary, dramatic or artistic work. The reason perhaps could be that they have to be original to satisfy the test of
copyrightability, whereas the requirement of originality is absent for claiming copyright in cinematograph films/sound
recordings.52
50 Section 14(d)(i), id.

51 Star India Private Limited v. Leo Burnett (India) Private Limited , 2003 (27) PTC 81 (Bom) .
52 Id. at p. 94.
End of Document
Right to sell or rental
V K AHUJA
FILM

Right to sell or rental
The copyright owner of a cinematograph film has the exclusive right to sell or give on commercial rental or offer for
sale or for such rental any copy of the film. “Commercial rental” does not include the rental, lease or lending of a
lawfully acquired copy of a cinematograph film for non-profit purposes by a non-profit library or non-profit
educational institution.53Thus, a non-profit library or non-profit educational institution which receives grants from the
Government or are exempted from payment of tax under the Income Tax Act, 1961 can rent, lease or lend a
lawfully acquired copy of a cinematograph film for non-profit purposes without infringing the economic rights of the
copyright owner of such cinematograph film.
The reason of providing rental rights appears to have been to enable the owners of copyright in such works to
prevent legitimate copies of the works being rented out and then duplicated in circumstances beyond the owner’s
control. Thus, any rental of cinematograph film will amount to an infringement if done without the licence of the
copyright owner, whether or not that cinematograph film has already been put into circulation.
The intention of legislature seems to facilitate the flow of remuneration to copyright owners which may be assisted
by appropriate collective administration through copyright societies. These rights will also provide an added
safeguard against distribution of infringing copies.
53 Section 2(fa), Copyright Act, 1957.
End of Document
Communication of the film to public
V K AHUJA
FILM

The owner of copyright in a film has the exclusive right to communicate the film to the public.54 “Communication to
the public” is defined to mean ‘making any work or performance available for being seen or heard or otherwise
enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it,
whether simultaneously or at places and times chosen individually, regardless of whether any member of the public
actually sees, hears or otherwise enjoys the work or performance so made available’.55
The infringement of copyright in a film occurs only if the film is communicated to the public. The meaning of ‘public’
can be gathered from looking at the nature of the audience. Where the members of audience are from the domestic
and quasi-domestic circle then the communication is not public. In all other cases, the communication shall be
deemed to be in public. The courts tend to give as wide a meaning to ‘public’ as reasonably possible as a mean of
ensuring that the copyright owner is compensated for unlicensed use of his copyright.56
The definition of “communication to the public” is very comprehensive and removes all uncertainty in relation to
satellite, cable or other means of simultaneous communication to different households etc. Explanation to section
2(ff) which defines “communication to the public”, provides that ‘communication through satellite or cable or any
other means of simultaneous communication to more than one household or place of residence including residential
rooms of any hotel or hostel shall be deemed to be communication to the public’. Further, “broadcast” is defined
under the Copyright Act, 1957, to mean communication to the public (i) by any means of wireless diffusion, whether
in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast.57
In Super Cassette Industries v. Nirulas Corner House (P) Ltd. ,58 the court stated that the expansive definition under
section 2(ff) in that case would mean that broadcast was deemed to be communication to the public. The court held
that the plaintiff had been able to show that the defendants were using cable connection and extending facilities of
television to their patrons in the hotel rooms, and payments were received. In this view, prima facie, the content of
songs and videos broadcast were communications to the public.59
Whether a communication is to the public or it is a private communication, it depends essentially on the persons
receiving the communication.60 In Performance Right Society Ltd. v. Hawthorns Hotel Ltd. ,61 the performance in the
lounge of the hotel was considered as a performance in public.
In Earnest Turner Electrical Instruments Ltd. v. Performance Right Society ,62 the music was broadcasted to
employees during work. While holding the performance to be in public, the court applied the tests, namely - (1) the
character of audience whether it could be considered as purely domestic, (2) relationship between the owner of the
copyright and the audience, and (3) the impact of the performance on the value of copyright or the loss of profit
which would otherwise have accrued to the owner had the same audience watched the performance on payment.
Page 2 of 2
54 Section 14(d)(iii), id.

55 Section 2(ff), id.
56 Canadian Admiral Corpn. Ltd. v. Rediffusion Inc. (1954) Excr 382, 14 Foxpat C 144 .
57 Section 2(dd),Copyright Act 1957.
58 Super Cassette Industries v. Nirulas Corner House (P) Ltd. , 2008 (37) PTC 237 (Del.) at p. 245 .
59 Id. at p. 246.
60 Garware Plastics and Polyster Ltd. v. Telelink , AIR 1989 Bom 331 [LNIND 1989 BOM 43].
61 Performance Right Society Ltd. v. Hawthorns Hotel Ltd. , (1933) 1 Ch 855 .
62 Earnest Turner Electrical Instruments Ltd. v. Performance Right Society , (1943) 1 Ch 167 .
End of Document
VI. SOUND RECORDINGS
V K AHUJA
In India, 2e 2015 > CHAPTER 4 Economic Rights of Copyright Owners > VI. SOUND
RECORDINGS
VI. SOUND RECORDINGS

Section 14(e) of the Copyright Act provides that the owner of sound recording has the exclusive right subject to the
provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial
part thereof, namely:
(i) to make any other sound recording embodying it including storing of it in any medium by electronic or other
means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;
(iii) to communicate the sound recording to the public.
Section 14(a) deals with original work. It is extremely broad. In contrast thereto, the copyright in films or sound
recording work operates in restrictive field; they provide for a restrictive right as would appear from the provisions
contained in section 14 (e) of the Act.63 It is, however noteworthy that the rights of an owner of a sound recording
are, in no way, inferior to those of an owner of copyright in the original literary or musical work.64
63 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. & Others , 2008 (37) PTC 353 (SC) at p. 377 .
64 Indian Performing Right Society Ltd. v. Aditya Pandey & Others , 2012 (50) PTC 460 (Del) (DB) at p. 477 .
End of Document
Making a copy
V K AHUJA
RECORDINGS

Making a copy
Making a copy of the sound recording or a substantial part of it, without a licence of the owner of copyright is an
infringement under Copyright Act, 1957. The exclusive right available to the owner of copyright in sound recording
is to copy the recording of a particular sound recording. It is, therefore clear that production by another person of
the same sound recording does not constitute infringement of copyright provided that it had not been reproduced by
a process of duplication i.e. by using mechanical contrivance. The expression ‘to make any other sound recording
embodying it’ would mean to make a physical copy of the sound recording itself and not any other sound recording
which merely resembles the former.
It is not an infringement of the copyright in sound recording to reproduce the recorded material in musical notation
or other written form, or to produce another record with, for example different musicians playing the same music.65
65 CBS Records Australia Ltd. v. Telmark Teleproducts (Aust.) Pty. Ltd . (1988) 79 A.L.R. 604. See also James, supra n.
18, para 8-78.
End of Document
Rental right and communication rights
V K AHUJA
RECORDINGS

The rental right and communication right of the owner of sound recording are mutatis mutandis the same as of the
owner of cinematograph film.
It is noteworthy that the owner of the copyright in a sound recording does not, by virtue of the authorisation by the
owner of his right to make a sound recording of his original literary or musical work, becomes the owner of that
underlying literary or musical work embodied in that sound recording. The producer of the sound recording,
however, can exploit the sound recording exclusively in the manner provided in section 14(1)(e). He can
communicate the same to the public by broadcasting it or playing it in public places. The owners of the underlying
musical and literary work embodied in such sound recording cannot interfere with these rights of the owner of the
sound recording qua that sound recording.66
The right of copyright owner of a sound recording to communicate it to the public can only mean the right to
communicate it as a sound recording. It cannot mean the right to communicate the sound recording as a part of, or
as embodied in a cinematograph film. On the other hand, the right to utilize the literary, dramatic or musical work to
make a cinematograph film is specifically conferred on the copyright owner of literary, dramatic or musical work by
virtue of section 14(a)(iv). The said right being an exclusive right cannot possibly inhere at the same time in two
persons namely the owner of the copyright in the literary, dramatic or musical work and the owner of the copyright
in the sound recording. Therefore, the copyright owner of a sound recording cannot proceed to incorporate the
sound recording/version recording in a cinematograph film without the express licence from the owners of the
copyright in the literary, dramatic or musical works from which the sound recording is made.67
Every broadcasting organisation, shop, departmental store, showroom, emporium, restaurant, hotel, club, disco,
bars, office establishments, television channels, music concerts etc. which play sound recording, impinges on the
rights of copyright owner unless they get the permission of the copyright owner or the copyright society, as the case
may be.68
66 See Music Broadcast Private Limited v. Indian Performing Right Society Limited , 2011 (47) PTC 587 (Bom) at pp. 596,
606. In Indian Performing Right Society Ltd. v. Aditya Pandey & Others , 2012 (50) PTC 460 (Del) (DB) at p. 479, the
court observed that the communication of a sound recording to the public by the owner of the recording in no way
encroaches upon the right of the owner of the underlying literary and musical works to perform said underlying works in
the public. The court further stated on p. 483 that once the author of a lyric or a musical work parted with a portion of
his copyright by authorizing a film producer to make a cinematograph film in respect of his work and thereby to had his
work incorporated or recorded on the sound track of a cinematograph film, the latter acquired by virtue of section
14(1)(c) of the Act on completion of the cinematograph film a copyright which gave him the exclusive right inter alia of
performing the work in public i.e. to cause the film in so far as it consisted of visual images to be seen in public and in
so far as it consisted of the acoustic portion including a lyric or a musical work to be heard in public without securing
any further permission of the author of the lyric or a musical work for the performance of the work in public.
Page 2 of 2
67 Gramophone Company of India Ltd. v. Super Cassette Industries Ltd. , 2010 (44) PTC 541 (Del) at p. 588 .
68 See also Indian Performing Right Society Ltd. v. R. Krishnamurthy & Another , 2012 (49) PTC 362 (Del.) at p. 364 .
End of Document
Copyright in designs registered or capable of being registered under the
Designs Act, 2000
V K AHUJA
RECORDINGS

Copyright in designs registered or capable of being registered under the Designs Act, 2000
Section 15 provides that copyright shall not subsist under this Act in any design which is registered under the
Designs Act, 2000. Further, copyright in any design, which is capable of being registered under the Designs Act,
2000, but which has not been so registered, shall cease as soon as any article to which the design has been
applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his
licence, by any other person.
End of Document
Overlapping between an artistic work and a design
V K AHUJA
RECORDINGS

In some cases, there may be an overlapping between a drawing/design which can be both an artistic work under
the Copyright Act as also a design under the Designs Act, 2000. The issue of such overlapping was dealt in
Jagdamba Impex v. Tristar Products Private Ltd .,69 in detail. The difference between the copyright created under
the Designs Act and the copyright in an artistic work under the Copyright Act is that a design under the Designs Act
is used to produce an article whereas a copyright in an artistic work under the Copyright Act is sold in itself and not
that any article further produced by application of the copyrighted work having a copyright under the Copyright Act.
Since there is some overlapping between a drawing/design which can be both an artistic work under the Copyright
Act as also a design under the Designs Act, section 15 of Copyright Act makes it clear that a drawing/design which
is registered under the Designs Act will not be the subject matter of copyright under the Copyright Act. Putting it
differently, a drawing/design which is an artistic work under the Copyright Act, as also under the Designs Act, if not
registered under the Designs Act, will have protection under the Copyright Act only till the design is used not more
than 50 times by an industrial process to produce an article by means of the application of the drawing/design.
Once the 51st article is produced by application of drawing/design there will be no copyright under the Copyright
Act in the drawing/design thereafter in the work which was an artistic work having copyright under the Copyright Act
and rights for the said drawings under the Designs Act can only exist if the drawing/design is got registered under
the Designs Act before making of 51st article from the drawing/design. In other words, if a drawing/design which is
an artistic work under the Copyright Act and which is used by an industrial process for producing an article, then in
such case once the 51st article is produced by application of the design with an industrial process, then unless the
drawing/design is registered under the Designs Act, the owner of the copyright work i.e. drawing/design will no
longer be entitled to claim exclusivity of an entitlement to use the drawing/design because of rights which were
created under the Copyright Act because originally the drawing/design was an artistic work having a copyright
under the Copyright Act.
In J.C. Bamford Excavators Limited & Another v. Action Construction Equipment Limited & Others ,70 the court
stated that law does protect copyright in drawings. Section 15 deals with the special provisions regarding copyright
in the designs registered and capable of being registered under the Designs Act, 1911 (now Designs Act, 2000).
Sections 2(c), 14 and 15 read together clearly mean that copyright in any design which is registered under Designs
Act, 1911 (now Designs Act, 2000) or which is capable of being registered under the Designs Act, 1911 (now
Designs Act, 2000), does not subsist once the article has been reproduced for more than fifty times.
In Microlube India Limited v. Rakesh Kumar ,71 the Full Bench of Delhi High Court observed that “in effect, after
registration, the registrant has in its possession a copyright in an industrial design. By statutory fait, such industrial
designs, which are registered under the Designs Act, are excluded from protection of the Copyright Act (see section
15(1) of the Copyright Act ). There is, however, a caveat added by the legislature to this, which is, that a copyright
in any design which is capable of being registered under the Designs Act, shall have protection under the Copyright
Act, till such time it is not reproduced more than 50 times by an industrial process by the owner of the copyright or
with his licence by any other person. (See section 15(2) of the Copyright Act ). This of course would be subject to
the provisions of section 13 of the Copyright Act, which enumerates the works in which copyright can subsist.”72
Page 2 of 2
Thus, if a particular artistic work is capable of treating as design, and is meant for the use of goods and can be
registered under the Designs Act, its registration under the Copyright Act as artistic work is not permissible. It would
mean that even an artistic work which is commercially exploited in relation to goods in the manner provided under
the Designs Act, it ceases to be a work which would get protection under the Copyright Act. The proper course of
action in such cases is to get the same registered under the Designs Act.73 In Jagdamba Impex v. Tristar Products
Private Ltd .,74 the court stated that section 14(c) dealt with an entitlement of a person who was the owner of the
copyright because of existence/continuation of existence of the copyright in the artistic work, but section 15(2) made
it clear that the entitlement of a copyright owner in an artistic work/drawing/design was lost once from the
drawing/design an article was produced more than 50 times by means of an industrial process. Once the copyright
was lost under section 15, section 14(c) could not be read as to again confer a copyright in an artistic work although
the same was lost by virtue of section 15 .
It is noteworthy that ‘artistic work’ as defined under section 2(c) of the Copyright Act, 1957, has been excluded from
the definition of ‘design’ under section 2(d) of the Designs Act, 2000.
69 Jagdamba Impex v. Tristar Products Private Ltd. , 2014 (59) PTC 149 (Del) at 155 .
70 J.C. Bamford Excavators Limited & Another v. Action Construction Equipment Limited & Others , 2006 (33) PTC 161
(Del.) at p. 169 .
71 Microlube India Limited v. Rakesh Kumar , (2013) 55 PTC 61, para 15 .
72 See also Urooj Ahmed v. Preethi Kitchen Appliances P. Ltd & Another , 2014 (57) PTC 139 (Mad) (DB) .
73 Kiran Shoes Manufacturers v. Registrar of Copyrights & Another , 2012 (50) PTC 14 (Del) (DB) at p. 17. See also Kiran
Shoes Manufacturers v. Registrar of Copyrights & Another , 2013 (54) PTC 386 (Del) (DB) at p. 389 .
74 Jagdamba Impex v. Tristar Products Private Ltd. , 2014 (59) PTC 149 (Del) at 156 .
End of Document
No copyright except as provided in this Act
V K AHUJA
RECORDINGS

According to section 16 of the Copyright Act, 1957, no person shall be entitled to copyright or any similar right in
any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act
or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right
or jurisdiction to restrain a breach of trust or confidence.
Section 16 of the Act specifically bars a person from claiming copyright or any other similar right in any work
otherwise than in accordance with the provisions of the Act itself or any other law in force. Copyright exists and can
be claimed only in accordance with the provisions of the Act or under any law which was in force at the time when
the Act was enacted. The appellant-plaintiff cannot claim copyright and sue for infringement of copyright de-hors the
Act. Common law rights under copyright law were abrogated earlier by section 31 of the Copyright Act, 1911, which
was enacted to amend and consolidate the law relating to copyright.
A copyright, unlike a trade mark is a right created under the Act as is evident from section 16 thereof. Section 16
provides that a right, inter alia, in respect of any work must be claimed only under and in accordance with the
provisions of the Act unlike Trade Mark and ‘passing off rights’ which can be enforced even though they are not
registered.75Therefore, whatever rights are claimed by the parties, they must spring from the Act and there are no
equitable rights which either party can claim under the law of copyright.76
The preemption under section 16 applies only to copyright or any similar right only with respect to ‘works’ and
cannot be extended to the other rights in any manner whatsoever. The score updates/match alerts do not constitute
a ‘work’ as defined under the Act, and therefore, cannot be said to fall within the purview of the preemption under
section 16 .77
In Star India Pvt. Ltd. v. Piyush Agarwal & Ors. ,78 the court stated that “there cannot exist a copyright in a ‘work’
dehors the Act i.e. exclusive right in a work or any right in a work is only that which is the subject matter of the Act,
and merely because a particular nomenclature not stated in the Act is sought to be given to a type of ‘work’ which is
urged to be not a work under the Act, proprietary rights or property rights cannot be claimed in such a work.”
75 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. & Others , 2008 (37) PTC 353 (SC) at pp. 374, 378
: (2008) 13 SCC 30 [LNIND 2008 SC 1247], see also Rediff.com India Ltd. v. E- Eighteen.com Ltd. , 2013 (55) PTC 294
(Del) at p. 311 .
76 Super Cassettes Industries Limited v. Chintamani Rao & Others , 2012 (49) PTC 1 (Del) at p. 14 .
77 Star India Pvt. Ltd. v. Piyush Agarwal , 2013 (54) PTC 222 (Del) at p. 234 .
Page 2 of 2
End of Document
I. INTRODUCTION
V K AHUJA
In India, 2e 2015 > CHAPTER 5 Author’s Moral Rights
CHAPTER 5 Author’s Moral Rights
I. INTRODUCTION
In addition to the protection of economic rights, the Copyright Act also protects moral rights of the author. Moral
rights flow from the fact that a literary or artistic work reflects the personality of the creator, just as much as the
economic rights reflect the author’s need to keep body and soul together.1 In Amarnath Sehgal v. Union of India ,2
the Delhi Court observed:
In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is
temporal as well. Many of us believe in soul. Moral rights of the author are soul of his works. The author has a right to
preserve, protect and nurture his creations through his moral rights.3
Moral rights or ‘droit moral’ originated in French law. The Rome Act of 1928 added the droit moral to the Berne
Convention of 1886. The moral rights are exceptions to the general rule that after an author has assigned his rights
in favour of a publisher or other person, the latter alone is entitled to sue in respect of infringements. The author has
a right to claim moral rights in the work even after the assignment of copyright.
1 Stephen M. Stewart, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS (1983), p. 59.

2 Amarnath Sehgal v. Union of India , 2005 (30) PTC 253.
3 Id. at p. 260.
End of Document
II. KINDS OF MORAL RIGHTS
V K AHUJA
In India, 2e 2015 > CHAPTER 5 Author’s Moral Rights > II. KINDS OF MORAL RIGHTS

Moral rights of the authors have been recognised in most of the countries. There are mainly two moral rights:
End of Document
(i) Right of paternity (Droit de paternite)
V K AHUJA

(i) Right of paternity (Droit de paternite)
Right of paternity means that an author has a right to claim authorship of his work and can prevent all others from
claiming authorship of his work. The author also has a right to demand that his name should appear in all copies of
his work at the appropriate place. He can also prevent others from using his name in their works.
End of Document
(ii) Right of integrity (Droit de respect de l’oeuvre)
V K AHUJA

(ii) Right of integrity (Droit de respect de l’oeuvre)
Right of integrity means that an author has a right to prevent distortion, mutilation or other alteration of his work, or
any other action in relation to the said work which would be prejudicial to his honour or reputation. This right is
important particularly where a licence or assignment has been granted to adapt or alter the work in some way, e.g.
novel into play, play into film, etc. It is for the courts to decide the borderline between the adaptation and distortion.
There is no recognition of right to withdrawal/retraction on account of non-satisfaction of the author under section
57. Rather, explanation appended to section 57 states that the failure to display the work or display it to the
satisfaction of the author shall not be deemed to be infringement of the right conferred by section 57. Thus, the
legislative intent behind section 57 is clear in this regard. It is noteworthy that right of retraction is recognized
internationally only with the condition of the author to indemnify the publisher and also gives the right of first
preference to the existing publisher. No such exception or condition exists in section 57. Such right of retraction or
withdrawal does not exist in Berne Convention also.4
4 PEE PEE Publishers & Distributors (P) Ltd. v. Neena Khanna & Another , 2010 (44) PTC 45 (Del) at pp. 63, 64 .
End of Document
III. MORAL RIGHTS IN INDIA
V K AHUJA
In India, 2e 2015 > CHAPTER 5 Author’s Moral Rights > III. MORAL RIGHTS IN INDIA

Section 57 of the Copyright Act, 1957, recognises moral rights of the author. The provision is based on Article 6bis
of the Berne Convention. It provides that independently of the author’s copyright and even after the assignment
either wholly or partially of the said copyright, the author of a work shall have the right - (i) to claim the authorship of
the work; and (ii) to restrain, or claim 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.
However, the author shall not have any right to restrain or claim damages in respect of any adaptation of a
computer programme to which clause (aa) of sub-section (1) of section 52 applies.
Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement
of the rights conferred by this section. The right conferred upon an author of a work may be exercised by the legal
representatives of the author.
Thus, remedies under section 57 are available to the author in respect of distortion, mutilation, modification or other
acts in respect of his work, where such acts would be prejudicial to his honour or reputation.
Section 57 also provides a proviso in respect of computer programmes, whereby adaptation of a computer
programme for the purpose commonly known as ‘debugging’ is made permissible. In other words, making of copies
or adaptation of a computer programme is allowed only in two circumstances by the lawful possessor of a copy of
such computer programme: firstly, in order to utilize the computer programme for the purpose for which it was
supplied and secondly, to make back-up copies purely as a temporary protection against loss, destruction or
damage in order only to utilize the computer programme for the purpose for which it was supplied. It is, however,
noteworthy that unlawful possessors of computer programmes are not allowed to adapt or make copies of such a
programme for aforesaid purposes. The making of copies or adaptation of a computer programme by lawful
possessors of such computer programme for purposes other than those mentioned in section 52(1) (aa) are not
allowed.
The moral rights of the author are independent of author’s copyright and the remedies available to him for the
infringement of his copyright. In other words, section 57 confers additional rights on the author of a work. The
special protection of the copyright is emphasized by the fact that the remedies of injunction and damages can be
claimed even after the assignment either wholly or partially of the said copyright. This view was upheld in Mannu
Bhandari v. Kala Vikas Pictures Ltd .,5 and further affirmed in Wiley Eastern Ltd. v. Indian Institute of Management 6
and Amarnath Sehgal v. Union of India .7 The scope of section 57 is of widest amplitude. It includes not only literary
and artistic works but also audio-visual manifestations.8
The principle underlying section 57 is that damage to the reputation of an author is something apart from
infringement of work itself. Section 57 provides an exception to the rule that after an author has parted with his
rights in favour of a publisher or other person, the latter alone is entitled to sue in respect of infringements. The
publisher or other assignee of copyright can no doubt bring action but section 57 provides that the author can
approach the court for protecting him from serious injury even in cases where there is assignment of copyright.9
Page 2 of 2
Reproduction of a colour picture in black and white is not distortion of the work. In S. Mahalingam v. Vasan
Publications Pvt. Ltd .,10 the court stated that where the appellant produced the artistic work in colour and the
respondent included it in a book in black and white format, it could not be called as distortion of the work.
5 Mannu Bhandari v. Kala Vikas Pictures Ltd. , AIR 1987 Del 13 [LNIND 1986 DEL 270].
6 Wiley Eastern Ltd. v. Indian Institute of Management , (1995) 58 DLT 449 [LNIND 1995 DEL 114].
7 Amarnath Sehgal v. Union of India , 2005 (30) PTC 253.
8 Garapati Prasad v. Parmandi Saroja , AIR 1992 AP 230 [LNIND 1991 AP 129].
9 Arun Chadha v. OCA Productions Private Limited , 2013 (53) PTC 401 (Del) at p. 409 .
10 S. Mahalingam v. Vasan Publications Pvt. Ltd. , 2013 (55) PTC 178 (Mad) (DB) at p. 184 .
End of Document

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Date and Time: 09 July 2020 14:35:00 IST

Job Number: 120774054

1. I. INTELLECTUAL PROPERTY RIGHTS (IPR)

CHAPTER 1 Introduction to Copyright

CHAPTER 1 Introduction to Copyright

I. HISTORICAL DEVELOPMENT OF THE LAW OF COPYRIGHT

CHAPTER 1 Introduction to Copyright

II. OBJECTIVES OF COPYRIGHT LAW

CHAPTER 1 Introduction to Copyright

III. NATURE OF COPYRIGHT

CHAPTER 1 Introduction to Copyright

IV. COPYRIGHT VIS-À-VIS PUBLIC INTEREST

CHAPTER 1 Introduction to Copyright

II. OBJECTIVES OF COPYRIGHT LAW

CHAPTER 1 Introduction to Copyright

II. OBJECTIVES OF COPYRIGHT LAW

CHAPTER 1 Introduction to Copyright

II. OBJECTIVES OF COPYRIGHT LAW

CHAPTER 1 Introduction to Copyright

V. NEIGHBORING RIGHTS/R ELATED RIGHTS

CHAPTER 1 Introduction to Copyright

II. OBJECTIVES OF COPYRIGHT LAW

CHAPTER 2 Subject-Matter of Copyright

CHAPTER 2 Subject-Matter of Copyright

I. ORIGINAL LITERARY WORKS

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

In Fraser v. Thames Television ,73 it was observed by the Court:

71 Anil Gupta v. Kunal Dasgupta , 2002 (25) PTC 1.

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

77 Pepsico Inc. v. Hindustan Coca Cola , 2001 PTC 699 (Del) .

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

88 Section 2(ffb), Copyright Act, 1957.

CHAPTER 2 Subject-Matter of Copyright

III. ORIGINAL DRAMATIC WORKS

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

3 Michael F. Flint, A USER’S GUIDE TO COPYRIGHT (London, 1990), p. 187.

CHAPTER 2 Subject-Matter of Copyright

II. ORIGINAL COMPUTER PROGRAMMES

8 Tate v. Fullbrook , (1908) 1 K.B. 821 .

CHAPTER 2 Subject-Matter of Copyright

IV. ORIGINAL MUSICAL WORKS

9 Section 2(p), Copyright Act 1957.

CHAPTER 2 Subject-Matter of Copyright