2. Introduction
• The Copyright Act, 1957 (the ‘Act’) came into effect from
January 1958. The Act has been amended five times since
then, i.e., in 1983, 1984, 1992, 1994, 1999 and 2012. The
Copyright (Amendment) Act, 2012 is the most substantial.
• The main reasons for amendments to the Copyright Act,
1957 include to bring the Act in conformity with two WIPO
internet treaties concluded in 1996 namely, the WIPO
Copyright Treaty (“WCT”) and WIPO Performances and
Phonograms Treaty (“WPPT”);
– to protect the Music and Film Industry and address its concerns;
– to address the concerns of the physically disabled and to protect
the interests of the author of any work;
– Incidental changes;
– to remove operational facilities; and enforcement of rights.
3. DEFINITION: COPYRIGHT
Section 14 of Copyright defines copyright
“As the exclusive right to do or authorize others to
do certain acts in relation to first literary, dramatic,
or musical work, second artistic work, third
cinematography film, fourth sound recording”.
The primary function of copyright is to protect the
fruits of the man’s work, labour, skill or test from
being taken away from other people.
4. Fundamental Principles of CopyRights
• Copyright law applies to nearly all creative
and intellectual works.
• Works are protected automatically, without
copyright notice or registration.
• Copyright protection lasts for many decades.
• Works in the public domain.
6. Statutory Definition
• Copyright Act 1957, s. 51
• Infringement: exercising rights of the
copyright owner
• Making, distributing, exhibiting and importing
infringing copies of the work
7. Factors Determining Infringement
Copying
Causal Connection
Subconscious Copying
Indirect Copying
Substantial Taking
Unaltered copying
Extent of defendant’s alteration
Character of Plaintiff’s and Defendant’s works
Nature and Extent of Plaintiff’s Effort
8. General Principles
R.C Anand v Delux Films
(1) No copyright in an idea. Violation of
copyright confined to form, manner and arrangement,
as well as expression of idea by the author
(2) Where same idea developed in different
manner, similarities happen. Court to rule on whether
similarities are merely substantial or fundamental
9. General Principles (2)
(3) Safest Test: Does the reader/ spectator/viewer
have the opinion/get the unshakeable impression
that the second work is a copy of the original? (“the
viewer test”)
(4) Same theme, different presentation →
Completely new work, no infringement
10. General Principles (3)
(5) Where there are only
incidental similarities, there is no
copyright infringement
(6) Copyright infringement =
piracy it must be clearly proven
(7) Very difficult to prove
violation of copyright of stage play
by a film producer: the “viewer test”
is applicable
11. SUBJECT MATTER OF
COPYIGHT:
1. Original Literary Dramatic or
Musical work
2. Original Artistic work
3. Cinematograph film
4. Sound recording
5. Computer programmes
12. WHO IS AN AUTHOR
1. Original Literary and Dramatic : AUTHOR
2. Musical Work: COMPOSER
3. Original Artistic work: ARTIST
4. Cinematograph film : PRODUCER
5. Sound recording: PRODUCER
6. Computer programmes: PROGRAMMER
13. ORIGINAL LITERARY,
DRAMATIC OR MUSICAL
WORK
1. Original Literary Work Case: Gleeson vs Deene
Facts: “X” works hard enough walking down the streets, taking
down the names of the people who live at houses and makes a
street directory as a result of that labour.
Issue: Whether X was entitled to copyright of the street
directory what he made?
Held: Yes, as it’s a result of his hard work X is entitled for
copyright.
14. CONTD
Case: University of London vs University of Tutorial
press Facts: Examination question papers were set by
“A”.
Issues: Whether A is entitled to copyright of that
work??
Held: Yes, since A invests labour and skill in preparing
the examination question paper. Such person is a
author of question paper and the copyright would vest
in him.
15. CONTD
Case: Zee Telefilms vs Sundial Communications
Facts: A had prepared concept notes for the
purpose of television film which consist of
characters, plots, notes and sketches etc.
Issues: Whether A is entitled to copyright of
those concept notes?
Held: Yes, since A invests labour and skill in
preparing the concept paper. Such person is
entitled for copyright.
18. Contd….COPYRIGHT OF LITERARY
WORK
CAN BE IN FORM OF:
Case: Macmillan & Co. vs K.J Cooper
Facts: Plaintiff’s book consisted of selected passages by
Plutarch’s life of Alexander the great, joined together by few
words to give a different appearance. The book also
contained introduction and notes useful for education. A
similar book was published by defendants with notes. The
original work contained 40,000 words while the defendants
had copied 20,000 words and 7000 words in notes.
Issue: Whether the defendants work infringed the copyright
in the plaintiff’s works?
Held: Defendants work infringed the copyright.
19. Contd….COPYRIGHT OF LITERARY
WORK
• CAN BE IN FORM OF:
• Case: Blackwood vs Parasurama
• Held: It was held that translation in any literary
work is entitled to copyright protection if
sufficient skill and labour has been invested in it.
20. ORIGINAL
DRAMATIC WORK:
Case: Creation Records vs New Group Newspaper
Held: It was held that a photograph which
involves no movement or action cannot be treated as dramatic
work.
Copyright of Dramatic work can in form of: Adaption of Dramatic
work:
Adaptation work means modification
of that work in some other form.
21. CONTD….ORIGINAL
DRAMATIC WORK:
Case: Academy of General Education Manipal v.
Malini Mallya
Court shows clear difference between literary and
dramatic work. The difference rests on the fact
between the two rests on the fact that literary
work allows itself to be read while a dramatic work
“forms the text upon which the performance of the
plays rests.” A dance performance will not be
covered under copyright work but under dramatic
work.
22. ORIGINAL
MUSICAL WORK:
Famous song “Yaaram” which is written by
Gulzar and composed by Vishal Bharadwaj.
The copyright of the lyrics will belong
to Gulzar and musical
composition will that be of the composer Vishal
Bharadwaj.
23. CONTD: ORIGINAL
MUSICAL WORK:
Case: Performing Rights Society vs Hawthrons
Facts: The performance was open to any member of
the public who was prepared to be the guest of the
hotel by either staying there or dinning there.
Held: Infringement was established, as they tried
earning profits by inviting people for stay and dinner
through a performance. Profits was earned by
defendants. The defendants infringes the copyright
when the public performance is made on payment.
24. 2. ORIGINAL
ARTISTIC WORK:
Case: Associated publishers vs Bashyam
Facts: A portrait of Mahatma Gandhi was made based on two photographs.
Held: A portrait based on photographs will be
entitled to copyright if it produced a result from the
photograph and the portrait itself is original.
Example: A photographer took a photograph of a painting of MF Hussain, then
paints the same himself and sells such copies painted by him.
Held: A copyright in a painting is infringed when a person copies from the
original painting or a picture of painting.
25. CONTD…..2. ORIGINAL ARTISTIC
WORK
If a building similar to the lotus temple in Delhi is
made by any other architect, it would be
infringement of copyright of the architect who
made the plan for the lotus temple.
26. 3. CINEMATOGRAPH
FILM
Case: R.G. Anand vs Delux Films
Facts: Plaintiff was a producer and play writer of play ‘Hum Hindustani’. The
plaintiff tried to consider the possibility of filming and narrated the play to
defendant. The defendant, without informing the plaintiff, made the picture
‘New Delhi’ which was alleged to be based on the said play.
Issue: Whether the film ‘New Delhi’ was an infringement of the plaintiff’s
copyright in play ‘Hum Hindustani’?
Held: No, because the stories were different only the theme “love story” was
same.
27. CONTD…..3.
CINEMATOGRAPH FILM
Case: Balwinder Singh vs Delhi Administration
Held: The concept of cinematograph is not only limited to
movies being played in theater it also covers videos and
television, they both fall under the preview of cinematograph
film.
Level of Originality:
A television report or documentary may be based upon a live
incidents or a newspaper report, thus the act does not prescribe
any specified level of originality in the cinematographic film.
28. CONTD…..3.
CINEMATOGRAPH
FILM
Case: Balwinder Singh vs Delhi Administration
Held: The concept of cinematograph is not only limited to
movies being played in theater it also covers videos and
television, they both fall under the preview of cinematograph
film.
Level of Originality:
A television report or documentary may be based upon a live
incidents or a newspaper report, thus the act does not prescribe
any specified level of originality in the cinematographic film.
29. 4. SOUND
RECORDING
Case: Gramophone Co. India vs Super Cassette
Industries
Facts: ‘G.co’, Plaintiff, produced audio records titled
‘Hum Aapke Hain Kaun’ by Rajashree production ltd,
who were the owners of cinematographic work. They
had already sold 55
lakhs audio cassettes and 40,000 compact discs titled
‘Hum Aapke Hain Kaun’. The defendants too launched an
audio cassette by adopting same title with it’s design,
colour scheme, get up and layout deceptively similar.
Permanent Injunction soughted.
Held: Injunction varied by stipulating not to use same
title, design colour scheme etc with bold letters the
record is version of different artists.
30. 5: COMPUTER
PROGRAMMES
It means a set of instructions expressed in
words, codes. Schemes or any other form,
including a machine readable medium,
capable of causing a computer to perform a
particular tasks to achieve a particular result.
Example: Whatsapp, Flipkart etc.
31. RIGHTS GRANTED UNDER COPYRIGHT LAW
• The U.S. Copyright Act grants certain exclusive rights to the owner of a copyright
in a work.
• These exclusive rights are different from the rights given to a person who merely
owns a copy of the work.
– For example, when a person purchases a book at a bookstore, they have
received a property right in a copy of a copyrighted work (namely, the book).
• The book owner may then resell the book, or even destroy it, since they own the
book. However, the book's owner did not receive any copyright rights when they
purchased the book.
• All copyright rights are held by the book's author until the author specifically
transfers them. Consequently, the book owner may not make any copies of the
book, since the right to copy a work is one of the exclusive rights granted under
the Copyright Act.
• This distinction allows a copyright owner to sell copies of a work, or even the
original work itself (such as a sculpture), without forfeiting her rights under the
Copyright Act.
32. The Copyright Act grants five rights to a copyright
owner, which are described in more detail below.
• the right to reproduce the copyrighted work
• the right to prepare derivative works based
upon the work
• the right to distribute copies of the work to
the public
• the right to perform the copyrighted work
publicly
• the right to display the copyrighted work
publicly
33. Reproduction:
• The reproduction right is perhaps the most important
right granted by the Copyright Act. Under this right, no
one other than the copyright owner may make any
reproductions or copies of the work.
– Examples of unauthorized acts which are prohibited under
this right include photocopying a book, copying a
computer software program, using a cartoon character on
a t-shirt, and incorporating a portion of another's song into
a new song.
• It is not necessary that the entire original work be
copied for an infringement of the reproduction right to
occur. All that is necessary is that the copying be
"substantial and material."
34. Derivative Works
• The right to make a derivative work overlaps somewhat with
the reproduction right.
• According to the Copyright Act, a derivative work is a work
based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in
which a work may be recast, transformed, or adapted.
• A derivative work usually involves a type of transformation,
such as the transformation of a novel into a motion picture.
• In the computer industry, a second version of a software
program is generally considered a derivative work based upon
the earlier version.
35. Distribution
• The distribution right grants to the copyright holder the exclusive right to
make a work available to the public by sale, rental, lease, or lending. This
right allows the copyright holder to prevent the distribution of
unauthorized copies of a work.
• In addition, the right allows the copyright holder to control the first
distribution of a particular authorized copy. However, the distribution
right is limited by the "first sale doctrine", which states that after the first
sale or distribution of a copy, the copyright holder can no longer control
what happens to that copy.
• Thus, after a book has been purchased at a book store (the first sale of a
copy), the copyright holder has no say over how that copy is further
distributed.
• Thus, the book could be rented or resold without the permission of the
copyright holder.
• Congress has enacted several limitations to the first sale doctrine,
including a prohibition on the rental of software and phonorecords.
36. Public Performance
The public performance right allows the copyright holder
to control the public performance of certain
copyrighted works. The scope of the performance right
is limited to the following types of works:
• literary works,
• musical works,
• dramatic works,
• choreographic works,
• pantomimes,
• motion pictures, and
• audio visual works.
37. Public Display
The public display right is similar to the public performance right, except
that this right controls the public "display" of a work. This right is
limited to the following types of works:
• literary works;
• musical works;
• dramatic works;
• choreographic works;
• pantomimes;
• pictorial works;
• graphical works;
• sculptural works; and
• stills (individual images) from motion pictures and other audio visual
works.
39. DURATION AND TERMS OF
COPYRIGHT
Copyright protection lasts for 60-
year from the year following the:
Literary work
Dramatic work
Musical work
Artistic work
Sound Recording
Cinematograph work
Death of
Author
Date of
Publication
40. Ownership and Duration
• Initial ownership of copy rights
• Duration and Renewal
• Division, Transfer and Termination of Transfer
41. Initial ownership of Copyrights
• Works for Hire
• Joint Works
• Collective Works
42. Works for Hire
• A Work prepared by an employee within the scope of his or her employment
• A work specially ordered or commissioned for use as a contribution to a collective work
• As a part of a motion picture or other audio visual work
• As a sound recording
• As a translation
• As a supplementary work
• As a compilation
• As an instructional text
• As a test
• As answer material for test or as an atlas
If the parties expressly agree in a written instrument signed by them that the work shall be
considered a work made for hire
Under section 101
43. Community for creative Non-Violence v.
Reid Supreme Court (1989)
• CCNV Commissioned the sculptor, Reid, to create a
sculpture
• The court considered the term “employee” in light of
the general common law of agency
• Test for determination whether a hired party is an
employee for statutory purpose: the hiring party’s
right to control the manner and means by which the
product is accomplished (Several factors to consider)
• The court found that Reid was not an employee
44. Collective work
Section 101
• “ A work,. Such as a
periodical issue, anthology,
or encyclopedia, in which a
number of contributions,
constituting separate and
independent works in
themselves, are assembled
into a collective whole.”
Section 201 (c)
• “Copyright in each separate
contribution to a collective
work is distinct from
copyright in the collective
work as a whole, and vests
initially in the author of the
contribution”
45. Duration & Renewal
1909 Act
• Dual term protection
• 1st
term : 28 years from
date of first publication
(with proper notice)
• 2nd
term 28 years if
renewed in final year of 1st
term
• Failure to renew ;work in
public domain
1976 Act
• Unitary term protection
• Life of the author plus 50
Years (no notice required)
• Other works 75 years from
publication or 100 from
creation
• Work must be fixed
• Sunny Bono Act
46. Sonny Bono Copyright Term
Extension Act of 1998
• Enacted October 27, 1998
• Amending Chapter 3, 17USC
• Extends term of copyright protection by
another 20 years – to life of author plus 70
years
47. Division & Transfer of Copyright
Interest
1909 Act
• Precludes the formal
divisibility of rights
• Could assign entire
copyright
• Transfer of a lesser interest
was considered a license
• Only proprietor had
standing to sue
1976 Act
• Eliminates restrictions on
divisibility of rights
• Copyright may be
transferred and owned in
whole or in part
• Rights can be owned
separately and fully
protected by owner
48. Termination of Transfer
• Under the 1909 Act, authors could reclaim copyright interests
that they had licensed at the time of renewal
• The 1976 act retains the power for authors and their survivors
to reclaim copyright interests at a later time by granting an
inalienable power to terminate transfers of copy right
between the 35th
and 40th
year from the execution of grant for
works created after 1977
• With respect to works in their second renewal term prior to
1978, the 1976 Act allows authors and their families to
terminate transfer between the 56th
and 61st
year of
protection for such works
50. Registration
The procedure for registration is as follows:
• Application for registration is to be made on as prescribed in
the first schedule to the Rules;
• Separate applications should be made for registration of each
work;
• Each application should be accompanied by the requisite fee
prescribed in the second schedule to the Rules ; and
• The applications should be signed by the applicant or the
advocate in whose favor a Vakalatnama or Power of Attorney
has been executed. The Power of Attorney signed by the
party and accepted by the advocate should also be enclosed.
51. Documents required for Registration
• 2 copies of the work
• DD/online payment (only if registering online) of the amount
applicable
• Power of attorney, if filed through attorney
• If yours is an artistic work then you would also require a
search certificate from trademark office in TM60
• If yours is a computer software, then source code and object
code of the work are alos required for verification
• NOC from legal heirs, if author is deceased
• NOC from publisher (if the work published and publisher is
different from applicant)
• NOC from author (if the applicant is different from author)
52. Process of copyright
Obtaining a copyright certificate is slightly complex procedure. The process or
the workflow of a copyright in India is a usually classified into 3 stages
which are :
▪ Filing
▪ Examination
▪ Registration
53. Process of copyright
• Filing includes , filing of The application with complete details
and copies of the work . Then the has to wait for a period of
30 days mandatorily for any objection that may be filed
against the claims of the applicant
• Thereafter in the examination stage - the application is
examined and objections, if any, are raised, or any extra
documents required are requested. A response has to be filed
within 30 days.
• Lastly in the registration stage , The certificate is issued by the
copyright office after the objections, if any, are removed to
the satisfaction of the Copyright Registry
55. Time for Processing Application
• After you file your application and receive
diary number you have to wait for a
mandatory period of 30 days so that no
objection is filed in the Copyright office
against your claim that particular work is
created by you.
57. For musical works: The Indian Performing Right Society
Limited (IPRS)
For sound recording: Phonographic Performance
Limited (PPL)
For reprographic(photo copying) works: Indian
Reprographic Rights Organization (IRRO)
For performers(Singers) Rights: Indian Singers Rights
Association (ISRA)
Screenwriters Rights Association of India (SRAI)
COPYRIGHT SOCIETIES IN INDIA
60. Civil Remedies (2)
Injunction
Only effective remedy
Court has to weigh the damage to the plaintiff
if the injunction is not granted, as opposed to
the damage to the defendant if it is
Interlocutory injunction is the preferred
method for preventing infringement,
sometimes an ex parte injunction
62. Criminal Remedies
• Copyright Act 1957, s.64 empowers the Police (any
officer not below the rank of sub-inspector) to seize
infringing copies without warrant
• Police Raids (Power of search, seizure & arrest
without a warrant)
• Fines (min. 50,000-200,000 INR)
• Imprisonment (6 months to 3 years)
63. Pros and Cons of Civil Remedies
PROS
• Judicial determination of rights
• Likelihood of damages award
• Less vulnerable to a challenge
• Commissioner’s seizure orders more effective
64. Pros and Cons of Civil Remedies
(2)
CONS
• Delays – Trial, Appeal Stages
• Damages not usually awarded
• No severe punishment for violation of rights
67. Signed : 9 September 1886
Location :Berne, Switzerland
Parties : 168
Articles: 38
Depositary: Director General of the World Intellectual Property
Organization(WIPO)
Languages: Signed in French and English, officially translated in Arabic,
German, Italian, Portuguese and Spanish
It is the most significant international convention in the field of protecting
copyright.
68. Principle of National Treatment
Principle of Automatic Protection
Principle of Independence of
Protection
69. Every production in the,
I.Literary,
II.Scientific and
III.Artistic Domain,
irrespective of their mode or form of its
expression.
70. Right to translate
Right to make adaptations and arrangement of the works
Right to perform in public dramatic ,dramtico-musical and
musical works
Right to recite in public literary works
Right to communicate to the public the performance of such
works
71. Right to broadcast
Right to make reproductions in any manner or form
Right to use the work as a basis for an audio-visual
work and right to reproduce, distribute,perform in
public or communicate to the public that audio-visual
work
72. In case of works first published in a country of union:- That
Country
In the case of works published simultaneously in several countries
of the union which grants different terms of protection:- That country
who grants shortest term of protection
In case of works published simultaneously in a country outside
union and in a country of the Union:- The country of the Union
For unpublished works or works first published in a non-signatory
country :- the country of union of which the author is national
73. Right to claim authorship of the work
Right to object to any :
i. Mutilation
ii. Deformation Modification
iii. Other derogatory action in relation to work
which would be prejudicial to the author’s honor or reputation.
74. General Rule: Author’s lifetime + 50 years
In case of anonymous or pseudonymous work : 50 years from the
publication
In case of cinematographic work: 50 years from release or creation of
work (if not released)
In case of works of applied art and photographic works : 25 years
from the creation of such work
75. In certain Special cases.
Such reproduction does not conflict with a
normal exploitation of the work.
Does not unreasonably prejudice the legitimate
interests of the author.
