Nature, Meaning and Scope of Copyright

Table of Contents
Particulars

1. Introduction

2. Meaning of Copyright

3. Definition of Copyright

4. Characteristics of Copyright

5. Object of Copyright

6. Nature and scope of Copyright

7. Content and duration of Copyright

8. Works in which Copyright subsists

9. Author and ownership of Copyright

10.Assignment and Licensing of Copyright

12.Copyright Laws in US, UK and India- A Comparison

13.Conclusion

14.Bibliography

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 INTRODUCTION
The scope of intellectual property is expanding very fast and attempts are being made

by persons who create new creative ideas to seek protection under the umbrella of

intellectual property rights. Copyright is a kind of intellectual property the

importance of which has increased enormously in recent times due to the rapid

technological development in the field of printing, music, communication,

entertainment and computer industries.1

In India the first Copyright Act was passed in 1914. It was a replica of the English

Copyright Act of 1911. The Act, presently in force was legislated in the year 1957

and is known as Copyright Act, 1957, as amended by Copyright (Amendment) Act,

1999. Consequent upon India signing the GATT and entering the global market

economy, a number of changes have been made in the Copyright Act of 1957 by the

Amending Act of 1999, to give effect to the obligations arising from the signing of the

GATT and to make Indian Law more in line with the present law in many developed

countries.

MEANING OF COPYRIGHT
The word copyright is derived from the expression copier of words first used

in the context, according to Oxford Dictionary, in 1586.

Word copy according to Blacks Law Dictionary means transcript, imitation,

reproduction of an original writing, painting, instrument or the like

Copy right according to Blacks Law Dictionary is the right in literary property

as recognized and sanctioned by positive law. An intangible incorporeal right granted

to the author or originator of certain literary or artistic production whereby he is

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invested for a specific period with the sole and exclusive privilege of multiplying

copies of the same and publishing and selling them.

Copyright as defined in the Oxford English Dictionary is an exclusive right

given by law for a certain term of years to an author, composer etc., (or his assignee)

to print, publish and sell copies of his original work.

DEFINITION OF COPYRIGHT

The statutory definition of copyright is as follows2

Copyright means the exclusive right to do or authorize others to do certain acts in

relation to

1) Literary, dramatic and musical works;

2) Artistic works;

3) Cinematograph film and

4) Sound recordings.

The various acts for which copyright extends is listed in section 14 of the Act.

Copyright does not extend to any right beyond the scope of section 14. The exclusive

right for doing the respective acts extends not only to the whole of the work but to any

substantial part thereof or to any translation or adaptation thereof, where applicable.

Characteristics of Copyright3

2
Section 14 of the Copyright Act,1957
3
Intellectual Property Law, B.L Wadhera, Chapter 30, Pg 282

2
 a) Creation of a statute

Copyright is creation of a specific statute under the present law. There is no such

thing as common law copyright.

b) Form of intellectual property :

A copyright is a form of intellectual property since the product over which the right is

granted is the result of utilization and investment of intellect.

c) Monopoly right :

Copyright is a monopoly right restraining the others from exercising that right which

has been conferred on the owner of copyright under the provisions of the Act.

d) Negative right :

Copyright is a negative right meaning thereby that it is prohibitory in nature. It is a

right to prevent others from copying or reproducing the work.

e) Multiple rights :

Copyright is not a single right. It consists of a bundle of different rights in the same

work. For instance, in case of a literary work copyright comprises the right of

reproduction in hard back and paper back editions, the right of dramatic and

cinematographic versions etc.,

f) Neighbouring rights

Copyright consists not merely of the right to reproduction. It also consists of the

right to works derived from the original works; rights like the right of public

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performance, or the broadcasting rights. Such related rights are termed neighbouring

rights.

OBJECT OF COPYRIGHT4
The object of copyright law is to encourage, authors, composers, artists and

designers to create original works by rewarding them with the exclusive right for a

specified period to reproduce the works for publishing and selling them to public. It

is thus the exclusive right for a limited period to exploit the work for monetary gain.

The economic exploitation is done by licensing such exclusive right to entrepreneurs

like publishers, film producers etc., for a monetary consideration.

Thus, protecting, recognizing and encouraging the labour, skill and capital of

another is the object of a copyright.

NATURE AND SCOPE OF COPYRIGHT

the labour, skill and capital of another. This is the very foundation of copyright law.

The object of the copyright law is to protect the author of the copyright work from an

unlawful reproduction or exploitation of his work by others.

The exploitation is done by entrepreneurs like publishers, film producers etc., to

whom the owner of copyright assigns or licenses the particular rights. If the

entrepreneur is to recover the capital invested and earn profits he has to be protected

from unauthorized reproduction. Otherwise a pirate would reproduce the work at a

fraction of the original cost of production and undersell the producer. In ancient times

4
Ibid, Pg 283

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copying was a laborious and expensive process. The importance of copyright

protection was recognized only after the invention of the printing. Press in the 15 th

century which enabled reproduction of books in larger numbers practicable.5

Copyright is a creation of the statute. No person is entitled to copyright or any

similar right in any work except those provided under the copyright act. It is a

negative right where the author of the original work is protected from the

unauthorized reproduction or exploitation of his work. This right also extends to

prevent others, from exercising without authority any other form of right attached to

copyright.

Example: In the case of literary work the scope of copyright extends to the making of

a dramatic or cinematographic version of the literary work.

Copyright is a multiple right consisting of a bundle of different rights in the same

work. There is no copyright in ideas. Copyright subsists only in the material form in

which the ideas are expressed. Thus it is not an infringement of copyright to adopt

the ideas of another. Also there is nothing in the notion of copyright to prevent

another person from providing an identical result (and himself enjoying a copyright in

that work) provided it is arrived at through on independent process.

There is no copyright in ideas. Copyright subsists only in the material form to which

the ideas are translated. In the field of literary work the words chosen by the author to

express his ideas are peculiar to himself and no two descriptions of the same idea or

fact can be in the same words, just as no two answers written by two different

individuals to the same question can be the same. The order and arrangement of each

mans words is as singular as his countenance. It is the form in which a particular

5
Supra n. Chapter 30, Pg 254.

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idea, which is translated that is, protected. The above ratio was said down in Jaffroys

v. Boorey.6

In order to secure copyright protection what is required is that the author must have

bestowed upon the work sufficient judgement, skill and labour or capital. It is

immaterial whether the work is wise or foolish, accurate or inaccurate, or whether it

has or has not any literary merit as laid down in Walter v. Lane.7

The owner of a copyright has no monopoly in the subject matter. Others are at liberty

to produce the same result provided they do so independently and their work is

original. The above ratio was laid down in Ravencraft v. Herbert8.

There is no copyright in live events. No license is required to transmit programmes

of sporting events and news events. This is subject to the special rights conferred on

performers. Copyright protection in however not granted where the work is grossly

immoral, illegal, defamatory, seditious, irreligious or contrary to public policy or

calculated to deceive the public.9

Content and duration of Copyright

Copyright is not a single right but a bundle of rights which can be exploited

independently. Further the nature of the rights conferred on the owner of the

copyright depends upon the nature of the work. But one feature common to all kinds

of work is the right to reproduction in a material form and the right to publication.

The owner of a copyright may exploit the work himself or license others to exploit

6
(1854) 4 HLC 815
7
(1990) AC 539
8
(1980) RPC 103
9
Supra n. 1, Chapter 30, Pg 256

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any one or more of the rights for a consideration in the form of royalty or a lump sum

payment.

In the case of literary, dramatic, musical or artistic work (other than a photograph)

when published during the lifetime of the another, copyright subsists during the

lifetime of the author plus sixty years. In case of joint authorship the sixty years

period will start after the death of the author who dies last. In the case of anonymous

or pseudonymous works, posthumous publications, photographs, cinematograph film

and sound recording the term is sixty years from the year of publication. Where the

first owner of copyright is the Government or a public undertaking or an International

Organization the term of copyright is sixty years from the year of publication.

WORKS IN WHICH COPYRIGHT SUBSISTS

subsists or copyrightable works. Accordingly copyright subsists throughout India in

the following classes of works:

a) Original literary, dramatic, musical and artistic works.

b) Cinematograph film and

c) Sound recording.

Literary work includes computer programmers, tables, compilations including

computer databases. Copyright also subsists in the original adaptation of another

literary work, because the adaptation itself can be a literary work Adaptation in

relation to literary work means the conversion of the work into a dramatic work. A

genuine abridgement of a literary work is an original work and can be subject of

copyright. An abridgement is entitled to copyright if it is new and original. Similarly

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a translation of a literary work is itself a literary work and is entitled to copyright

protection if it is original. The head notes of law reports containing in clear and

concise language, the principles of law deduced from the court decision are original

literary works entitled to copyright protection. Copyright subsists in private letters,

commercial letters and government letters as they are original literary works. The

preparation of a questionnaire, catalogue and dictionaries involves considerable

amount of labour, skill and judgment. Copyright subsists in dictionaries because they

are compilations which are included in the definition of literary work.

The judgment or the order of court, tribunal or other judicial authority is

exempted from copyright protection. Historical facts are not copyrightable per se. A

lecture will be entitled to copyright only if it is reduced to writing before it is

delivered. A lecture delivered extempore, which has not been reduced to writing, can

be protected by an action of breach of confidence. As a general rule, titles of books or

literary articles are not protected under copyright law. They can be protected under

the law of passing off.

Copyright subsists in original dramatic work and its adaptation. According to

section 2(h) a dramatic work includes any piece of 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.

Adaptation in relation to dramatic work means, 1) the conversion of the work into a

non-dramatic work, 2) the abridgement of the work in which the story is conveyed by

means of pictures in a form suitable for reproduction in a book, or in a newspaper,

magazine or periodical.

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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

usually in the form of some notation and notes.

Copyright subsists in original musical work. According to section 2(p), musical

work means a work consisting of music and includes any graphical notation of such

work, but does not include any word or any action, intended to be sung or spoken or

performed with the music. An original adaptation of a musical work is usually called

arrangements. E.g., an orchestral work arranged for piano. The remix songs are

within the definition of adaptation of a musical work.

There is no copyright in a song as such because a song has its words written by one

man and its music by another. These two copyrights are entirely different and cannot

be merged.

According to section 2( c) Artistic work means

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 architecture craftsmanship.

Adaptation of an artistic work means the conversion of the work into a

dramatic work by way of performance in public or otherwise.

As in the case of other works, to qualify for copyright protection an artistic work must

be original, i.e. it must originate from the author. In respect of painting, sculpture,

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drawing, engraving or photograph the work need not possess any artistic quality. A

work of architecture must however have artistic quality. The artistic quality of the

work is to be determined on the merits of each piece of architecture.

A work of architecture means any building or structure having an artistic character or

design. The building or structure which constitutes a work of architecture is built on

the basis of a plan which enjoys a separate copyright apart from the copyright in the

building. This is in contrast with engineering drawings where the machines built on

the basis of the drawings do not have a separate copyright. Copyright also subsists in

original works of artistic craftsmanship. The purpose is to protect a person who

creates a product by his own handicraft from unauthorized reproduction whether by

hand, machine or otherwise. It has been held that prototype furniture does not qualify

for copyright; some higher level of, artistic interest or attainment is necessary.

A cinematograph film is a work capable of acquiring copyright. According to section

2(f), cinematograph firm 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 cinematograph including video films.

A cinematograph film is a film which by rapid projection through an apparatus called

cinematograph projector produces the illusion of motion on a screen of many

photographs taken successfully on a long film. For the purpose of copyright, the

producer is considered to be the author of cinematograph film. The artists working in

a film are not protected by copyright. Their rights are protected as performers

rights under section 38 of the copyright act.

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Copyright subsists in a sound recording. According to section 2 (xx) a 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 reproduced. The author of the sound recording is the producer. Musical

works and sound recordings embodying the music are considered separate subject-

matter for copyright. The copyright in the recording of the music is separate from the

copyright in the music.

Copyright in the music vests in the composer and the copyright in the music recorded

vests in the producer of the sound recording.

AUTHOR AND OWNERSHIP OF COPYRIGHT

The concept of author and ownership are vital when the question of propriety over

the copyright arises. The originator of an idea is not the owner of the copyright.

According to section 17 the author of the work is the first owner of the copyright in

the work.

An author may create a work on his own behalf or at the instance of another person

for valuable consideration or in the course of employment by another person. In the

first case the author is the owner of the copyright in the work. Authors who write

books or compose music come under this category. In the second category, the person

at whose instance the work is made is the owner of the copyright work. In the case of

the third category, the ownership depends upon the nature of employment. The author

of a work depends upon the nature of the work. In the case of literary or dramatic

work the author of the work is the person who creates the work. The author of a

musical work is the composer. In respect of an artistic work the author is the artist.

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The author of a photograph is the person who takes the photograph. In the case of a

cinematograph film the author is the producer of the film at the time of completion.

The author of a sound recording is the producer. In the case of any literary, dramatic,

musical or artistic work which is computer generated, the person who creates the

work is the author.

In the case of literary, dramatic and artistic works where the work is made by

an employee in the course of employment by the proprietor of a newspaper, magazine

or similar periodical under a contract of service or apprenticeship the said proprietor,

in the absence of any agreement to the contrary, will be the first owner of the

copyright. The copyright in a work done by an employee on his own time and not in

the course of his employment belongs to the employee.

Where the work is first published in India there is no nationality requirement

for subsistence of the copyright. If the work is first published outside India the author

must be a citizen of India at the time of publication or if dead at the time of death. In

the case of unpublished work the author must be a citizen of India or domiciled in

India at the time of making the work. Copyright in an architectural work will subsist

only if the work is located in India irrespective of the nationality of the author.

Ownership of the copyright in a work is not the same as ownership in the

material object in which the copyright work is embodied. Thus a person who buys a

painting may be the owner of the canvas in which the painting is drawn but the

copyright in the work may vest in the artist who has drawn the painting. Similarly

when a person buys a book he is the owner of the book but not the owner of the

copyright in the book.

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 ASSIGNMENT AND LICENSE OF COPYRIGHT

It is seldom that the author of a copyright work himself exploits the work for

monetary benefit. Ordinarily he either assigns the whole or part of his rights to others

to exploit economically for a lump sum consideration. In the alternative he may

license some or all of his rights to others usually on the basis of a royalty payment.

An assignment may be general, i.e. without limitations, or subject to limitations. It

may be for the whole term of the copyright or for any part thereof. It may be for a

particular territory or country.

While assignment is a transfer of ownership in rights to the assignee, a license is a

permission to do something in respect of the work.

Sections 18, 19 and 19A of the Copyright Act deal with the assignment of copyright.

Section 19 elaborates the mode of assignment in the following manner:

1. Assignment of a copyright is valid only if it is in writing and signed by the

assignor or by his duly authorized agent. Registration is not necessary for its

validity.

2. The deed of assignment shall identify the work and specify the rights assigned

and the duration and territorial extent of such assignment. It should also

specify the royalty payable to the author or his legal heirs, if any.

3. If the assignee does not exercise the rights assigned to him within one year

from the date of assignment, the assignment in respect of such rights shall be

deemed to have lapsed after the expiry of the said period unless otherwise

specified in the assignment instrument.

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4. When the period of assignment is not stated, the period shall be deemed to be

five years from the date of assignment. If the territorial extent of the rights is

not specified, it shall be presumed to extend within India.

An assignee, to whom certain rights have been assigned by the assignor can

restrain the author from exercising those rights which have already been assigned to

him by moving court of competent jurisdiction for infringement. Section 18 provides

that copyright can be assigned even in respect of future works.

According to section 21, the author of a work may relinquish all or any of the

rights comprised in the copyright in the work by giving notice to the Registrar of

Copyright.

Licensing of a Copyright: A license is an authorization to do certain acts which,

without such authorization, would be an infringement. The owner of a copyright may

grant a license to do any of the acts in respect of which he has an exclusive right to

do. Licensing usually involves only some of the rights and not the whole. Also

unlike an assignment where the assignee becomes the owner of the right assigned a

licensee only gets the right to exercise particular rights subject to the condition of the

license and does not become the owner of that right.

There is no prescribed form for a license deed. But it should be in writing

signed by the owner of the copyright or his duly authorized agent. The license deed

shall identify the work and specify the rights licensed and the duration and territorial

extent of such license. It must also specify the quantum of royalty payable and the

terms regarding revision, extension and termination of the license. The provision of

section 19 shall, with any necessary adaptation and modifications, apply in relation to

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a license under section 30 as they apply in relation to assignment of copyright in a

work.

A license should be distinguished from a consent. Thus, for example, inserting

quotations from a copyright work in another work or printing the photograph for a

specified purpose may not require a license but only a consent.

There are different kinds of licenses. A license may be exclusive or non-

exclusive; it may be granted by the owner (voluntary) or granted by the Copyright

Board as a compulsory license. It may be limited to a specific period of time, to a

territory within the jurisdiction or to part of the interest where possible or to a

particular country.

Exclusive license means a license which confers on the licensee to the

exclusion of all other persons including the owner of the copyright any right

comprised in the copyright in a work. In the case of a non-exclusive license, the

owner of the copyright retains, the right to grant licenses to more than one person or

to exercise it himself. An exclusive license should be distinguished from a sole

license. In the case of a sole license the licensee can exclude all others except the

owner of the copyright.

Licenses are generally granted by the owner of the copyright on payment of some

royalty. When they are granted in the above manner they are called as voluntary

licenses. Licenses may also be non-voluntary or compulsory.

Section 31 of the Copyright Act deals with compulsory license of an Indian work.

Accordingly the copyright Board is empowered to grant compulsory licenses under

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certain circumstances. The circumstances necessary for grant of such compulsory

licenses are as follows :

a) The work must have been published or performed in public.

b) The author must have refused to republish or allow republication of the work

or must have refused to allow the performance of the work in public.

c) That by reason of such refusal the work is withheld from public, or

d) The author must have refused to allow communication to the public of such

work by broadcast, or in the case of a sound recording the work recorded in

such record, on reasonable terms.

Section 31 A deals with compulsory license in respect of unpublished works.

COPYRIGHT LAWS IN U.K., U.S. AND INDIA

A COMPARISON
The subject matter of copyright is more or less similar in India, USA and UK.

When it comes to the Idea Expression dichotomy, UK copyright law follows the

Berne convention where protection goes only to the particular expression of ideas.

India to a great extent follows the UK concept. In the US the idea-expression

dichotomy has been enacted in Section 102 of the statute itself. It states that there is

no copyright for an original work that extends to an idea regardless of the form in

which it is described. When it comes to the question of originality / creativity, where

the work originates from the author and is not a copied work, it gets protected under

the UK and the Indian laws. The US laws are more stringent on the originality aspect

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and expects a spark of creativity to be present apart from originality aspect.

Originality and creativity is a constitutional requirement and has been given under

section 102. It explicitly states that originality / creativity and fixation in tangible

form are the two fundamental creations of copyright protection. In U.S.A. an

extremely low, even a slight amount of originality will suffice.10

Recently the legal battle between Warner Bros and Mirchi Movies, the makers

of Hari Puttar A comedy of Terrors for infringement of copyright caught the

attention of the world media. The Delhi High Court dismissed the suit filed by

Warner Bros which contended that the films title sought to confuse customers and

benefit unfairly from the Harry Potter brand, the rights to which the United States

based entertainment behemoth owns for movies and merchandise. The paradox is that

hugely successful series of Barry Trotter books and other books like Hairy Potter and

the Marijuana Stone and Hairy Potty and the underwear of Justice have escaped

litigation on similar grounds. The answer to this paradox lies in western intellectual

property law where the right to free speech is a defence against copyright and

trademark violations in relation to such things as parodies (a comic imitation).

Ironically the problem with the Puttar film is that it bears no resemblance at all to the

Potter Saga, and therefore audience could confuse it with a Harry Patter film. The

Delhi High Court however rightly concluded that the audience in India and else where

is more than capable of discerning one from the other

10
NLSIU, Pg 80-82.

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.

CONCLUSION

The Principle of copyright protection in India is What is worth copying is prima

facie worth protecting. In the rapidly changing technological environment, copyright

protection is being extended to many areas of creative work particularly in the

computer industry. This has found recognition in the 1994 Amendment Act.

Computer software piracy and video piracy is a world wide phenomenon. To act as a

deterrent against such piracy, the provisions relating to protection of computers

software have been tightened by substantially enhancing the punishment for

infringement of software and increasing the scope of such infringement. Further

certain special rights have been introduced for the first time for the benefit of

performers like musicians, actors, acrobats, jugglers, snake charmers and so on.

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 ANNOTATED BIBLIOGRAPHY

1. Narayanan.P,
Intellectual Property Law,
Eastern Law House,
Third Edition,2007.

2. Priyaranjan Trivedi,
Encyclopaedia of IPR,
Volume III.

3. Basic Principles and Acquisition of

4. Wadhera B.L,
Law Relating toIntellectual Property,
19
Universal Law Publishing Company,
Fourth Edition 2007.

20
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