

SUBJECT MATTER OF
COPYRIGHT
ARTICLE 2 OF THE BERNE CONVENTION FOR THE
PROTECTION OF LITERARY AND ARTISTIC WORKS
'Literary and artistic works'- The expression 'literary and artistic works' shall
include
every production in the literary, scientific and artistic domain, whatever may be
the mode or form of its expression,
such as books, pamphlets and other writings; lectures, addresses, sermons and
other works of the same nature;
dramatic or dramatico-musical works;
choreographic works and entertainments in dumb show;
musical compositions with or without words;
cinematographic works to which are assimilated works expressed by a process
analogous to cinematography;
works of drawing, painting, architecture, sculpture, engraving and lithography;
photographic works to which are assimilated works expressed by a process
analogous to photography; works of applied art;
illustrations, maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science
SECTION 13 OF THE COPYRIGHT ACT
 Works in which copyright subsists.--  1.Subject
to the provisions of this section and the other
provisions of this Act, copyright shall subsist
throughout India in the following classes of
works, that is to say, --
a. original literary, dramatic, musical and
artistic works

b. cinematograph films; and

c. sound recording.
IDEA-EXPRESSION DICHOTOMY
 Philosophical dichotomies
 A means whereby copyright law limits the
scope of the author’s entitlement in light
of the public domain
 Balances the interests of society in the free
flow of information against the property
interests of authors
IDEAS
 Human Mental Conceptions
 Notions

 Raw Forms of Thought

 Abstract, Vague with No Concrete Embodiment

 What one thinks, knows or imagines

EXPRESSION
 An act, process or instance of representing
in a medium
 Concrete embodiment of an idea
 Externally Recognizable Manifestation of
the Thought in a Tangible form
US POSITION
 Sec. 102. - Subject matter of copyright:
(a) …………………
(b) In no case does copyright protection for an
original work of authorship extend to any idea,
procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied
in such work
DOCTRINE OF MERGER
 Merger of Idea with Expression
 “When an idea can only be expressed in a certain
way, the expression is not protectable”
 Copyright will be refused for that expression for
it would give the originator of the idea a virtual
monopoly on the idea
WORKS
 Section 2(y) of the Indian Copyright Act: ‘Work’ means
any of the following works, namely: -

(i) Literary, Dramatic, Musical or Artistic work;

 (ii) Cinematograph Film;

 (iii) Sound Recording

LITERARY WORK
Section 2 (o) of the Copyright Act: ‘Literary Work’
includes, computer programme, tables and compilations
including computer data bases

Section 2(ffc) defines computer programmes:

LITERARY WORK

Writing: defined in U.K.Act 1956

under Section 48(1) as “includes any
form of notation, whether by hand or
by printing, typewriting or any similar
process”
UNIVERSITY OF LONDON PRESS LTD. V.
UNIVERSITY TUTORIAL PRESS LTD.(1916)
Whether Question Papers are literary works?
Court Held: “Literary work cover work which is
expressed in print or writing, irrespective of the question
whether the quality or style is high. The word literary
seems to be used in a sense somewhat similar to the use
of the word ‘literature in political or electioneering
literature and refers to written or printed matter. Papers
set by examiners are ‘literary work’”
BURLINGTON HOME SHOPPING PVT. LTD.
V. RAJNEESH CHIBBER 1996 PTR 40
 Facts: Plaintiff, being a mail order service company has developed a
list of customer’s database investing considerable amount of money
and time. The defendant, at one time an employee of the plaintiff after
leaving the plaintiff’s employment managed to get a copy of the
database and started making use of the same for the purpose of
establishing relationship with the plaintiff’s customers.
 Issues: Whether a database consisting of compilation of mailing
addresses of customers can be subject matter of a copyright
Whether the defendant can be said to have committed infringement of
the plaintiff’s copyright
 Held: A compilation of addresses developed by anyone by devoting
time, money, labour and skill though the sources may be commonly
situated amounts to a ‘literary work’, wherein the author has copyright
On comparison of both plaintiff’s and defendant’s data, it was found
that a substantial number of entries are comparable word by word, line
by line and even space by space. Hence there is infringement
GOVINDAN V. GOPALAKRISHNAN
AIR 1955 MAD. 391
 Facts: Plaintiff published an English-English Tamil
dictionary (Excelsior Junior School Dictionary) in 1932.
Later, appellant together with the defendant published an
English-English Tamil Dictionary
 Issue: Whether dictionaries are subject matter of
copyright?
Is there any infringement?
 Defence of common source- A person relying on the
defence of common source must show that he went to
the common source from which he borrowed, employing
his skill, labour and brains and that he did not merely do
the work of the copyist, by copying away from another
work
 Held: Even though in the case of ‘compilation’, the
amount of originality will be very small but even that
small amount is protected by law and no man is entitled
to steal or appropriate for himself the result of another
brain, skill or labour even in such works. Hence entitled
to copyright
On comparison, there is infringement of copyright
AGARWAL PUBLISHING HOUSE V. BOARD
OF H.S. & I. EDUCATION AIR 1967 ALL. 91
 Facts: A notification issued by the Board of H.S. & I.
Education declaring that the copyright of the question
papers set at examinations conducted by the Board shall
vest in the Board and forbidding the publication of such
question papers without the Board’s permission was
challenged by a firm of publishers.
 Issues: Whether examination question papers are
‘original literary works’
 In whom the copyright vests
 Whether examination question papers are government
work within Section 2(k) of the Copyright Act
 Held: The words ‘literary works’ in Section 13 are not
confined to works of literature in the commonly
understood sense but include all works expressed in
writing whether they have any literary merit or not.
 Hence question papers are ‘original literary works’
within the meaning of Section 13 of the Copyright Act
 The copyright belongs to the author by virtue of
Section 17 of the Indian Copyright Act and does not
belong to the Board
 Examination question papers are not ‘Government
Works’, since question papers are not set ‘under the
direction or control, of the Board’
PANDIAN ARIVALI V. KAMAL HASSAN
[ 1995 2 LW 347 (MAD) DB]
 Facts: Pandian registered the title of the book “MAGALIR
MATTUM” - book yet to be published - Kamal Hassan advertised
that they are launching production of film “MAGALIR MATTUM”
 Trial Court: Declined to grant injunction was upheld
 Division Bench: Title is not a part of composition or work of
author/composer
Workmanship confined to the work and not to the title
There is no property in the name which is the term of description
used to identify the work and any person can adopt it
‘Can be shown that title is used to induce the public to believe that a
thing which he has to apply is applied, it is not different from the
work to which the title has been given by the author/composer..’
TRANSLATION
 Copyright subsists in translation
 [Blackwood v. Parasuram AIR 1959 Mad. 410]
- “Translation is the action/process of turning from one
language into another, also, the product of this, a version
in a different language—the expression/rendering of
something in another medium/form transformation,
alteration/change”
OTHER LITERARY WORKS
 Arrangement of broadcasting programmes
 School text-books,
 Book of receipts,
 Directory,
 Trade advertisements
 Mining report
 List of stock exchange prices,
 Biographical notes of prominent golfers published in golf-
manual
 Classified information for use of motor car insurers.
 Football coupons
 Chemists catalogue of drugs for sale.
 Law reports and head notes:
COPYRIGHT DOES NOT SUBSIST IN:
 what are not original
 libelous, immoral, obscene irreligious
 names and addresses printed on index cards
 cricket scoring sheets
 mere theories
 photocards with pictorial borders
 race list containing starting prices
 names, pen-names,
 calendars
 legal forms
 blank books,
 news, facts.
 Work in public domain
 Government publications
EASTERN BOOK CO. V. NAVIN J. DESAI AIR
2001 DEL. 185
Facts: Plaintiff are the publishers of law reports under the
name and style of “Supreme Court Cases”, Supreme Court
Cases (Criminal.
They have also published database package using a
software known as “SCC Online Supreme Court Case
Finder”, available in CD-ROM for finding SC rulings on
any point of law which includes over 84,000 case notes
based on the headnotes published in the plaintiff’s journal
SCC and other plaintiff’s works. As a complementary
product to the “Case Finder 2000, plaintiff has also
developed and released “Supreme Court Cases Full Text
on CD-ROM”. Plaintiffs claimed copyright in the head
notes for both short notes and long notes, in the selection,
manner of arrangement and in the manner of presentation
of the judgments in both printing and electronic form.
EASTERN BOOK CO. V. NAVIN J.
DESAI AIR 2001 DEL. 185
 Defendants also developed a software package called
“The Laws” published in two CD-ROMs and GRAND
JURIX” in three CD-ROMs.
 Suit for infringement by the plaintiff on the ground that
short notes and head notes of the defendant’s software in
both cases were identical to the short notes and head
notes published in the plaintiff’s SCC
EASTERN BOOK CO. V. NAVIN J.
DESAI AIR 2001 DEL. 185
Issues: Whether head notes in a judgement constitutes
abridgement of the judgement
Whether plaintiff is entitled to copyright in the head
notes of the judgement
Held: Mere reproduction of a part of the judgment in the
head note is not an abridgement of the judgment and no
copyright can be claimed.
EASTERN BOOK CO. V. NAVIN J.
DESAI AIR 2001 DEL. 185
 The judgments/ orders published by the plaintiffs in their
law reports “Supreme Court Cases” is not their original
litereary work but has been composed of, compiled and
prepared from and reproduction of the judgments of the
Supreme Court of India, open to all. Mere correction of
certain typographical or grammatical mistakes in the raw
source and addition of commas, full stops and giving
paragraph numbers to the judgment will not entitle their
work to be treated as original literary work for protection
under the Copyright Act
DRAMATIC WORKS
 Section 2(h) of the Copyright Act: ‘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
 Dramatic Composition is a work in which the narrative
is unfolded
- by dialogue and action, as in spoken play, or
- by action alone, as in a pantomime

 it must tell a connected story or portray a series of

related events
 Dramatic acting may be by voice, action, gesticulation/
facial expression
GREEN V. BROADCASTING CORPORATION
OF NEW ZEALAND [1989] R.P.C. 700
Facts:
Appellant
 author, presenter and compere of a television show
entitled “Opportunity Knocks, a talent contest.
 program followed particular format, used catch phrases,
contestants introduced sponsors, used clapometer to
measure audience reaction and the content of the show
varied from show to show.
Respondent
-broadcast similar television talent contest in New
Zealand under the same title.
- It used same title and catch phrases as Opportunity
Knocks.
Appellant commenced proceedings in New Zealand for
copyright infringement and passing off.
The copyright of the appellant alleged to have been
infringed by the respondent was claimed to subsist in the
“scripts and dramatic format” of “Opportunity Knocks”
as broadcast in England.
Trial Court: Dismissed the action

Court of Appeal of New Zealand: Affirmed the decision

of the trial Court

Privy Council: Dismissed the appeal

 In the absence of precise evidence as to what the
scripts of the show contained, it appeared that these
did no more than express a general idea or concept for a
talent contest. Thus they were not the subject of
copyright
ARTISTIC WORKS
 Section 2(c) of the Indian Copyright Act: “Artistic
Works” means:
- a painting, a sculpture, a drawing (including a
diagram, map, chart or plan, engraving or a photograph,
whether or not any such work possesses artistic quality,
- A work of architecture, and
- Any other work of artistic craftsmanship
ASSOCIATED PUBLISHERS LTD. V. K.
BASHYAM ALIAS “ARYA” AIR 1961 MAD.
114
 Facts: Plaintiff by expending his labour and skill produced a
portrait of Mahatma Gandhi by a combination of parts of two other
photographs of Mahatma Gandhi in a new way so as to produce a
different effect. The plaintiff conceived the idea of having printed
copies made of the portrait with a view to their sale. For this
purpose he employed the services of the defendant to make a
block. The original portrait painted by the plaintiff was handed
over to the first defendant with a view to prepare the block. Since
the first block prepared by the defendant was not satisfactory,
plaintiff demanded for another one and accepted the second one.
The rejected block was left with the defendant who made improper
use of it. By the time the plaintiff took delivery of the copies of
this portrait from the defendant, the market was full of pictures in
colour which were obviously colourable imitations in colour of the
portrait painted by the plaintiff. Suit for infringement
Court Held: Plaintiff entitled to copyright in the picture and
there was infringement
“To constitute original artistic work, neither original
thought nor original research is essential and the
standard of originality required is a low one. It is original
skill/ labour in execution and originality of though which
is required. It is difficult to state any principle upon
which the standard is based and to state the precise
amount of the knowledge, labour, judgment or skill or
taste which the artist must bestow upon his composition
in order to acquire a copyright”
MUSICAL WORKS
 Section 2(p) of the Copyright Act: ‘Musical work' means
a work consisting of music and includes any graphical
notation of such work but does not include any work or
any action intended to be sung, spoken or performed
with the music
CINEMATOGRAPH FILM
 Section 2(f) of the Indian Copyright Act:
‘Cinematograph film' means any work of visual
recording on any medium produced through a process
from which a moving image may be produced by any
means and includes a sound recording accompanying
such visual recording and 'cinematograph' shall be
construed as including any work produced by any
process analogous to cinematography including video
films
SOUND RECORDING
Section 2(xx) of the Copyright Act: ‘Sound recording'
means a recording of sounds from which such sounds
have been produced regardless of the medium on which
such recording is or the method by which the sounds are
produced.
AUTHORSHIP & OWNERSHIP
 Section 2(d) of the Indian Copyright Act:
 'author' means,--

i. the author of the work - a literary or dramatic work,

ii. the composer - a musical work,
iii. the artist - an artistic work other than a photograph,
iv. the person taking the photograph - a photograph,
v. the producer - a cinematograph film, or sound recording,
vi. the person who causes the work to be created - any
literary, dramatic, musical or artistic work which is
computer-generated
AUTHORSHIP
 Section 2 (ffa) - 'composer', in relation to a musical
work, means the person who composes the music
regardless of whether he records it in any form of
graphical notation
 Section 2 (uu) - 'producer', in relation to a cinematograph
film or sound recording, means a person who takes the
initiative and responsibility for making the work
OWNERSHIP
 S. 17.
 First owner of copyright.-- The author of a work shall be the
first owner of the copyright .
 Exceptions
 a. in the case of a literary, dramatic or artistic work made by
the author in the course of his employment by the proprietor
of a newspaper, magazine or similar periodical under a
contract of service or apprenticeship, for the purpose of
publication in a newspaper, magazine or similar periodical,
the said proprietor shall, in the absence of any agreement to
the contrary, be the first owner of the copyright in the work
in so far as the copyright relates to the publication of the
work in any newspaper, magazine or similar periodical, or
to the reproduction of the work for the purpose of its being
so published, but in all other respects the author shall be the
first owner of the copyright in the work;
OWNERSHIP
 b. subject to the provisions of clause (a), in the case of a
photograph taken, or a painting or portrait drawn, or an
engraving or a cinematograph film 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;
 c. in the case of a work made in the course of the author's
employment under a contract of service or
apprenticeship, to which clause (a) or clause (b) does not
apply, the employer shall, in the absence of any
agreement to the contrary, be the first owner of the
copyright work therein.
OWNERSHIP
 cc. in the case of any address or speech delivered in public,
the person who has delivered such address or speech or if
such person has delivered such address or speech on behalf
of any other person, such other person shall be the first
owner of the copyright therein notwithstanding that the
person who delivers such address or speech, or, as the case
may be, the person on whose behalf such address or
speech is delivered, is employed by any other person who
arranges such address or speech or on whose behalf or
premises such address or speech is delivered;]
 d. in the case of a Government work, Government shall, in
the absence of any agreement to the contrary, be the first
owner of the copyright therein;
 dd. in the case of a work made or first published by or
under the direction or control of any public undertaking,
such public undertaking shall, in the absence of any
agreement to the contrary, be the first owner of the
copyright therein.
 e. in the case of a work to which the provisions of
Section 41 apply, the international organisation
concerned shall be the first owner of the copyright
therein.