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Date and Time: 07 July 2020 01:31:00 IST
Job Number: 120557079
Documents (12)
1. CHAPTER I - Introduction to Copyright Law

Client/Matter: -None-
2. CHAPTER II - International Conventions
3. CHAPTER III - Development of Copyright Regime in India
4. CHAPTER IV - Works in which Copyright Subsists
5. CHAPTER V - Author of Work & Owner of Copyright
6. CHAPTER VI - Rights of Copyright Owners and Infringement
7. CHAPTER VII - Limitations to the Copyright
8. CHAPTER VIII - Neighbouring Rights
9. CHAPTER IX - Collective Administration of Rights through Copyright Societies
10. CHAPTER X - Internet & Copyright Law
11. CHAPTER XI - Remedies against Infringement of Copyright
12. APPENDIX 1
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CHAPTER I - Introduction to Copyright Law
Alka Chawla: Law of Copyright
ALKA CHAWLA
Alka Chawla: Law of Copyright > Alka Chawla: Law of Copyright
Chapter I Introduction to Copyright Law
1. Introduction
Man is gifted with intellect that is used for the growth and development of himself and the society at large. The
continual process of learning and creating new knowledge with appropriate protection to the creator along with
accessibility of his work to the public forms the basis of all contemporary dynamic societies. A formal framework for
the "ownership" of the knowledge developed and the "sharing of benefits" between the creators and users of
knowledge is provided by a system of intellectual property rights (IPRs). By protecting intellectual property (IP) the
legal framework provides an incentive for creators to invest time and resources, to foster innovation and expand
knowledge.
Globally, there is a growing recognition of the fact that IP is the knowledge or information with a commercial value.
It is also being realized that future prosperity of nations will depend more upon their IP and less upon their natural
resources and physical assets such as factories, machines and office buildings as the economy of the twenty first
century will be knowledge based. 1 A number of studies conducted in different countries have concluded that newly
emerging copyright industries 2 are having a tremendous impact on the growth of national economies. 3 For
example, over 10% of GDP in Australia and USA, 8.5% in Korea, 6% in Netherlands is due to copyright industries.
These industries contribute nearly 4% – 7% to national employment also. The copyright industries are associated
with informative and entertainment value and include, inter alia , publishing, music, film, radio, television and other
broadcasting organizations and computer software.
Two decades ago IPR was put on the center stage of the world economic order by the World Trade Organisation
(WTO). The member States of WTO were mandated to follow prescribed minimum standards in twenty eight
subjects, one of them being IP. Intellectual property issues and concerns were therefore integrated with other global
issues like: multilateral trade negotiations, knowledge based models of economic development, protection and
exploitation of biodiversity resources, development and transfer of environmentally friendly technology, protection of
folklore and indigenous culture, and other aspects of economic and social development. Intellectual property,
therefore, started assuming a new centrality in the international community bringing IPRS to the forefront of socio-
economic and legal structures. 4
2. The Concept of Intellectual Property

Intellectual property, according to World Intellectual Property Organization (WIPO), broadly means the legal rights,
which result from intellectual activity in the industrial, scientific, literary and artistic fields. It is in the nature of an
intangible, incorporeal property. 5 Intellectual property is traditionally divided into two branches:
(i) Copyright and
(ii) Industrial property.
(i) Copyright law is further divided into two categories:

(a) copyright law in the strict sense of the word, i.e., the protection of intellectual creativity in literary,
artistic and musical works, etc. and
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(b) the law relating to neighbouring rights, namely the rights of performing artists, producers of
phonograms and broadcasting organizations.
(ii) Industrial property 6 includes: inventions in all fields of human endeavour; scientific discoveries; industrial
designs; trademarks, service marks, commercial names and designations; protection against unfair
competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields.
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which is one of the agreements under
World Trade Organisation (WTO), 1994 however, classifies IPR under seven heads, namely:
(i) copyright and related rights,
(ii) trade marks,
(iii) geographical indications, 7
(iv) industrial designs,
(v) patents,
(vi) layout designs (topographies) of integrated circuits, 8
(vii) protection of undisclosed information including trade secrets.
This classification was undertaken so as to bring harmonization of the standards and principles of
protection of IPRS with a well defined dispute settlement machinery.
India is a member both of WIPO and WTO. As a part of its international obligation India has enacted
laws on different heads of intellectual property. In India, the governing law on copyright and related
rights is the Copyright Act, 1957, as amended by (Amendment) Act of 1983, 1984, 1994, 1999 and
2012 and Copyright Rules 1958, as amended in 1995 and the International Copyright Order, 1999 as
amended in 2000. The governing law on trade marks is the Trade Marks Act, 1999, which has
repealed the Trade Marks and Merchandise Marks Act, 1958. To protect geographical indications, the
Geographical Indications of Goods (Registration and Protection) Act, 1999 was enacted by the Indian
Parliament on 30.12.1999. The Industrial Designs Act 2000 has replaced the Designs Act of 1911 as a
sequel to TRIPS. The Patents Act, 1970 deals with patents and it was amended in 1999, 2002 and
2005. For plant varieties, India has the Protection of Plant Varieties and Farmers Right Act, 2000. India
has also enacted the Semiconductor for Integrated Circuits Layout Designs Act, 2000. Undisclosed
information or trade secrets, though not a subject matter of protection under any legislation, are
nonetheless accorded common law protection by Indian courts.
3. General Principles Governing Copyright Law

There are certain considerations and principles, which run through the whole of copyright law. These are listed
hereunder:
(a) Statutory right
The copyright law is governed by a statute. The statutory law on copyright in India is contained in the Copyright Act,
1957. All statute references in this book are to the 1957 Act as amended in 2012. Section 16 of the Act specifies
that no person shall be entitled to copyright or any similar right in any literary, dramatic, musical, artistic work
whether published or unpublished, otherwise than under and in accordance with the provisions of this statute. 9
(b) Formalities for obtaining copyright

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In India, copyright comes into existence as soon as a work is created and no formality is required for acquiring
copyright. The vesting of copyright in a work is thus automatic. The procedure for registration is optional and not
mandatory. 10 Registration is only intended to provide a prima facie evidence of the particulars entered in the
Register. 11 There is a Register of Copyright at the Copyright Office. 12 Published and unpublished works can be
registered under the Act. Copyright in works published before 21st January, 1958 i.e. before the Copyright Act,
1957 came into force can also be registered, provided the work still enjoys copyright.
(c) Functions of modern copyright system
Copyright system performs a number of functions in the society. According to Neil Weinstock, 13 copyright system
performs the following functions in a civil society.
(i) Production function . Copyright provides an incentive 14 for creative expression on a wide array of political,
social, and aesthetic issues and, thus, bolsters the discursive foundations for democratic culture and civic
association. Copyright law in almost all nations is designed to foster the creation and public communication
of original expression. In fostering the production and dissemination of fixed original expression concerning
a broad range of political, social, cultural and aesthetic matters, copyright promotes the democratic
character of civil society. The dissemination of expression is a fundamental building block of any
democratic institution.
(ii) Structural function. Copyright is vital to maintaining the democratic character of public discourse in civil
society. It supports an independent market-based sector of authors and publishers as the government
administrators and private patrons do not meddle in their expressive content.
(iii) Development function. Copyright has a special role in the context of development, particularly since the
1950s when the political map of the world changed considerably. During this period several States
progressively became independent and other States were newly created. In such a scenario, developing
countries had to cope with the enormous problems of educating the vast masses of their people. 15 For
education, teaching material including the literary, artistic and scientific works had to be created by authors
originating in the community to which the works were addressed. In many developing countries, there was
a shortage of specialists in certain areas of knowledge. This could not be set in motion without guarantees
to the author of adequate remuneration for their efforts. Copyright system thus supplied a vital incentive for
authors and publishers to contribute to this store of knowledge.
(d) Balancing act under copyright system
Contribution to the store of wealth in society has to be coupled with the citizen’s right to have access to this
accumulated wealth for the purposes of effective participation in civil association. A critical issue in copyright law is
how to balance the tension between the copyright proprietor’s desire to restrict access of the copyrighted works
only to those willing to pay for such access and the public’s interest in freely using the protected work. The balance
is provided by the doctrine of " Fair dealing" and provision for non-voluntary licenses in specific situations. These
doctrines allow copying of a copyrighted work in certain situations, without deeming the copier an infringer. The
balancing factor in favour of public interest is seen in the ways in which the copyright legislation permits such types
of acts in relation to copyright work. For example, section 52 of the Copyright Act, 1957 permits, inter alia , fair
dealing of work for the purposes of research or private use ; section 31B provides for compulsory license for the
benefit of the disabled and section 31 for the published works withheld from public.
(e) Subject matter of copyright protection
Practically all national copyright laws provide for the protection of the following types of work: literary works which
include novels, short stories, poems, dramatic works, musical works whether serious or light, songs, choruses,
operas; artistic works whether two dimensional or three dimensional, maps and technical drawings, photographic
works, motion pictures, sound recordings, computer programmes etc. The subject matter of copyright protection in
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India is given under section 13 of the Indian Copyright Act.
(f) Copyright vests in original work
The copyright vests in original literary, dramatic, musical and artistic works. The idea of originality is to protect
works that have originated from the author himself and are not copied from another. Copyright protection is given to
original literary, dramatic, musical and artistic works and not to ideas and, therefore, it is original skill or labour in
execution of the work, and not originality of thought, which is required. The word " original " does not, in this
connection, mean that the work must be the expression of original or inventive thought; the originality required
relates to the expression of thoughts. 16 A mere copyist does not obtain copyright in his copy. 17 A work like
abridgement, compilation, translation etc. are, however, original even though the author has drawn on knowledge
common to him and others, 18 or has used already existing material. The word "original" is not prefixed with
cinematograph films and sound recordings as they are derivative works. The concept of "originality" is discussed in
detail under Chapter III.
(g) Copyright does not vest in an idea
Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical
concepts as such. 19 What is protected is not original thought or information, but the original expression of thought
or information in some concrete form as the author is both a user of ideas developed by others and a creator of new
ideas. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the
thought or information is expressed. The defendant must, to be liable, have made a substantial use of this form; he
is not liable if he has taken from the work the essential idea, however original, and expressed the idea in his own
form, or used the idea for his own purposes. 20 Ideas may, however, be protected under other laws like doctrine of
unjust enrichment, quasi -contract or breach of trust or confidence.
Example : If X discloses an idea to Y on the implicit understanding that if Y uses the idea he will pay X. X will be
protected under the doctrine of quasi contract or unjust enrichment but not law of copyright. 21 Delhi High Court 22
had few occasions to deal with somewhat similar situations but it decided the cases under the copyright law and
held that when an idea is converted into a concept, it becomes copyrightable.
(h) Copyright and independent creation
Copyright operates to prevent a person from copying the copyright work. In so far as it is possible for a person to
create the same or similar work independently, there is no copyright infringement. Similarity of the infringing work to
the author’s or proprietor’s copyrighted work does not of itself establish copyright infringement if the similarity
results from the fact that both works deal with the same subject or have a common source. Nevertheless, it is the
unfair appropriation of the labour of another that constitutes legal infringement. 23
(i) Copyright is a bundle of rights
The word copyright is not a singular term but it refers to three bundles of rights under the copyright legislation:
(1) The exclusive economic rights . The enumeration of the author’s exclusive economic rights under different
international conventions and various national legislations is not uniform. Several rights overlap and the
precise scope of each right varies from one country to another. Nevertheless, Berne Convention, the
Universal Copyright Convention and virtually every national copyright statute has the following basic
economic rights or their equivalents:
(a) The reproduction right
(b) The adaptation right
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(c) The distribution right

(d) The public performance right
(e) The broadcasting right
(f) The cable casting right
(g) The rental right.
In India these rights are enumerated under section 14 of the Copyright Act, 1957.
(2) Moral rights or special rights of the author. Independently of the author’s economic rights, and even after
the transfer of the said rights, the author has the moral rights. 24 These moral rights include:
(i) the paternity right or the right to claim authorship of the work; and
(ii) integrity right or the right to object to any distortion, mutilation or other modification of the work. The
amendment of 2012 has inserted a new section 38B whereby moral rights have been ascribed to the
performers also. The two rights granted are the right of identification as a performer of his performance
and integrity right.
(3) Neighbouring or related rights. Special rights are given to broadcasting organizations and performers under
sections 37 and 38 of the Copyright Act. These are referred to as "neighbouring rights" under International
conventions
(j) Split copyright
Copyright is a bundle of rights, therefore, it can be split and exploited in different ways.
Example: Anand, the copyright owner in the novel can transfer to separate parties different rights belonging to him
under the single term ‘copyright’. Anand assigns the right of adaptation to B, the dramatist; right to make a film with
respect to novel to H, the producer of the film; the right to issue copies of the book by publishing to I, the publisher
and right of translation to K for translation in Tamil and to P to translate in Punjabi, etc.
(k) Negative right
Copyright imposes a negative duty on others, that is, prohibits others from exploiting the work of the author for their
own benefit without the consent or license of the author. The general principle, therefore, is that the protected works
cannot be used without the authorization of the owner of the rights.
(l) A right with limitations
Copyright is not an absolute right of the owner. It is subjected to following limitations:

(i) Temporal limitation : Copyright does not continue indefinitely. The law provides for a period of time, a
duration during which the economic rights of the copyright owner exist. Thereafter the work falls in the
public domain i.e. anyone can make use of the work without permission from the legal heirs of the
copyright owner. 25
(ii) Permitted use or Fair use or Fair Dealing doctrine : Certain acts normally restricted by copyright may, in
circumstances specified in the law, be done without the authorization of the copyright owner. This is
commonly referred to as free uses of the work or fair dealing doctrine. 26 Such examples include, inter alia,
reproduction of work for research or exclusively for the personal and private use of the person who makes
the reproduction etc.
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(iii) Geographical limitation : The owner of the copyright in a work is protected by the law of the country against
acts restricted by copyright which are done in that country.
(iv) Non-voluntary licenses: The laws of some countries permit the use of protected works without
authorization, provided that fair remuneration is paid to the owner of the copyright.
(m) Concurrent copyright
It is very often assumed when a book or a cassette is sold or a film exhibited or drama performed on stage that
somebody owns ‘the’ copyright. This is a misnomer, as a number of copyright interests can exist at the same time.
Example : Anand is the author of a novel " Swayamwar " having copyright in the novel which is a literary work. B
converts it into a drama for the purposes of staging it in a theater. B has a copyright in the dramatic work. C, D, E
and F, the four actors of the play have rights in their performance and G, the music composer has a copyright in the
music. When the play is staged on the theatre all B, C, D, E, F, G are the owners of some copyright or the other. In
practice all assign their copyright to H, the event manager of the show. The copyright of novelist, dramatist, music
composer and rights of performers would now vest in H only because of the assignment.
(n) Overlap between copyright and industrial designs
According to section 15 of the Copyright Act, copyright does not vest in any design which is registered under the
Designs Act, 2000 or which is capable of being registered but which has not been so registered and has been
reproduced more than fifty times by an industrial process by the owner of the copyright. 27
(o) Civil and criminal remedies and border measures
There are three types of remedies against infringement of copyright in various works.
Civil remedies which include injunction, damages and account of profits, delivery of infringing copies and damages
for conversion.
Criminal remedies provide imprisonment of the accused or imposition of fine or both; seizure of infringing copies
and delivery up of infringing copies to the owner of the copyright.
Administrative remedy is available to the owner of copyright against importation of infringing copies. In India, the
Registrar of copyright is empowered to make an order prohibiting the importation into India of such copies on an
application of the owner of the copyright in any work or his duly authorized agent.
(p) Eligibility for copyright protection in India
Copyright subsists both in published and unpublished work. An owner of copyright can get protection in India in his
unpublished work if on the date of making of the work he is a citizen of India or domiciled in India. 28 In the case of a
published work, the work has to be first published in India. If the work is first published outside India, then the author
on the date of publication should be a citizen of India. In case the author is dead on the date of publication, then on
the date of his death he should have been citizen of India. If the work is a work of joint authorship then the
conditions have to be satisfied by all the authors.
If the subject matter of protection is a "work of architecture" then only the location of work is important and not the
residence or citizenship of the author. The artist of the work of architecture gets protection under the Act if the work
is located in India. 29
The Berne Convention states 30 that the owner of the copyright in a work is protected by the law of the country
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against acts restricted by copyright, which are done in that country. For protection against such acts done in
another country, he must refer to the law of the other country. If both countries are members of one of the
international conventions on copyright, the practical problems arising from this geographical limitation are
minimized. 31
POINTS TO REMEMBER
1. India is a member of Berne Convention, Universal Copyright Convention, World Intellectual Property
Organization (WIPO) & World Trade Organization (WTO).
2. Intellectual Property is divided into seven heads according to Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPs) of WTO : Copyright, Trademarks, Geographical Indications, Industrial Designs, Patents,
Layout Designs (Topographies) of Integrated Circuits, Protection of Undisclosed Information including trade secrets
3. India has separate legislations for all the heads except undisclosed information which is taken care of by the
common law.
4. The Copyright Act, 1957 as amended in 2012 is the governing law in India.
5. Copyright vests in original literary, dramatic, musical and artistic works; cinematograph films; and sound
recordings.
6. Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical
concepts.
7. Copyright vests automatically in a work. The requirement of registration is optional.
8. The copyright law tries to create a balance between the rights of the copyright owners and the right of public to
the access of work.
9. Copyright is not a singular term. It refers to three bundles of rights namely, Exclusive Economic Rights (EERs),
Moral Rights (MRs) and Neighbouring Rights (NRs). EERS are given under section 14, the MRS are provided by
section 57.
10. International conventions recognize three neighbouring rights:

(a) Rights of producers of sound recording (section 14 (e) of the Copyright Act )
(b) Rights of performers (section 38 and 38A of the Copyright Act)
(c) Rights of broadcasting organizations (section 37 of the Copyright Act )
11. Copyright has a temporal duration. After the expiry of the term the work falls in the public domain. The term of
copyright is sixty years from first January of the calendar year next following either the date of death of the author or
the date of publication, whichever is applicable according to the Act.
12. The exclusive economic rights are not absolute rather they are limited by the fair dealing provisions provided
under section 52 and provisions for compulsory and statutory licenses.
13. The Act provides for three kinds of remedies for infringement of copyright: civil, criminal and administrative.
14. A work falls into public domain: (1) if the author relinquishes his rights or (2) The term of protection of copyright
is over.
1 In United States of America tangible assets formed 62% of the value of industrial companies in 1982 whereas in 1992
it got reduced to 38%. Similarly the share of knowledge intensive industries increased from 21% of GNP in 1982 to 27%
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in 1992 in USA: Michael K. Kirk, Intellectual Property – A Development Perspective. The Role of Intellectual Property
System in Promoting Creativity, Technology Development and Transfer, Trade and Investment , paper presented at
WIPO Asia – Pacific Regional Forum on Policy Imperatives and Role of Institutions in Implementing a Public Outreach
Strategy for Intellectual Property organized by Ministry of Commerce et.al , WIPO/IP/DEC/02/6 (d) ii, 2 (September 4 –
6, 2002).
2 W.R. Cornish , Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (London: Sweet and Maxwell
2nd ed., 1995) p. 258.
3 See, WIPO, WIPO Studies on the Economic Contribution of the Copyright Industries (2012) available at
http://www.wipo.int/ip-development/en/creative_industry/pdf/economic_contribution_ analysis_2012.pdf accessed on 1
February 2013. 6.6% of the GDP in Sweden (in 1970s); 3.6% of GDP in United Kingdom (in 1990) ; 2.9% of GDP in
Germany (1996); 5.2% of GDP in Netherlands (1994); 4.3% of GDP in United States (1997); 5.24% of GDP in United
States (2001); 4.1% of GDP in Finland (1997) is due to copyright industries: Henry Olsson, Intellectual Property and
Trade , WIPO/IP/DEL/02/6 (d) ii (August 29-31, 2001); Shahid Ali Khan, Intellectual Property and its Role : Key
message , WIPO/IP/DEL/01/4, Delhi (August 29-31, 2001); Prabuddha Ganguli, Intellectual Property Rights Unleashing
the Knowledge Economy (New Delhi: Tata Mcgraw Hill 2001) p. xxi. ; Study conducted by International Intellectual
Property Alliance, Copyright Industries in the US Economy, The 2011 Report available at
http://www.iipa.com/copyright_us_economy.html. accessed on 1 February, 2013.
4 Shahid Ali Khan, Socio-Economic Benefits of Intellectual Property Protection in Developing Countries (Geneva: WIPO,
2000) p. 8.
5 WIPO, Intellectual Property Reading Material (1995) p. 5.
6 International instruments in the area of industrial property are: Paris Convention for the Protection of Industrial Property
(1883); Patent Cooperation Treaty (PCT) (1970); Strasbourg Agreement Concerning the International Patent
Classification (1971); Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the
Purpose of Patent Procedure (1977); International Union of the Protection of New Plant Varieties; The Geneva Treaty
onthe International Recording of Scientific Discoveries (1978); Hague Agreement Concerning the International Deposit
of Industrial Designs (1925); Locarno Agreement Establishingan International Classification for Industrial Designs
(1968); Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of
Registration of Marks (1957); Madrid Agreement Concerning the International Registration of Marks (1981); Protocol
relating to the Madrid Agreement Concerning the International Registration of Marks (1989); Trade Mark Law Treaty
(1994); Community Trademarks (1996).
7 See Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958).
8 See Washington Treaty on Intellectual Property in Respect of Integrated Circuits (1989).
9 See, Gramophone Company of India Ltd. v. D.B.Pandey (1984) 2 SCC 534 [LNIND 1984 SC 51].
10 The Copyright Act, 1957, section 45
11 Ibid., section 48.
12 Ibid. , section 44.
13 Netanel Neil Weinstock, Copyright and Democratic Civil Society, 106 The Yale Law Journal (1996) p. 283
14 See, Deepak Printery, Ahmedabad v. The Forward Stationary Mart 1981 PTC 186 (Guj.): Held, the object of copyright
law is to protect authors and artists from being exploited.
15 WIPO, Intellectual Property Reading Material (1995) p. 189.
16 Per Peterson J. in University of London Press Ltd. v . University Tutorial Press Ltd . (1916) 2 Ch. 601at 608; cited with
approval in: Macmillan & Co. Ltd. v . Cooper K & J (1923) 40 T.L.R. 186; Ladbroke Football Ltd. v . William Hill
(Football) Ltd . (1964) I.W.L. R. 273at 277.
17 See per Lord James in Walter v . Lane (1900) A.C. 539 at 554; Barfield v . Nicholson (1824) 2 Sim. and Stu. ;
Leslie v . Young J. (1894) A.C. 335 .
18 University of London Press v . University Tutorial Press (1916) 2 Ch. 601; Rupendra Kashyap v . Jiwan Publishing
House 1996 PTC 439 (Del).
19 See WIPO Copyright Treaty, 1996, Article 2; and TRIPS, 1994, Article 9 (2). It clarifies the scope of copyright
protection. Such a provision is neither present in the Berne Convention for the protection of Literary and Artistic Works
nor in the Copyright Act, 1957 of India. The principle is, however, followed by the judiciary.
20 Hollinrake v. Truswell (1894) 3 Ch. 420; Mc. Crum v. Eisner (1918) 87 I.J. Ch. 99; Wilmer v. Hatchin & Co . (1936) Mac.
C.C. 13.
21 See Minnear v. Tors. 226 Cal. App. 2d 495 (1968).
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22 See Anil Gupta v. Kunal Dasgupta 2002 (25) PTC 1 (Del); Zee Telefilms Ltd. v. Sundial Communication 2003 (27) PTC
457 (Bom)(DB); Urmi Juvekar Chiang v. Global Broadcast News Ltd. 2008 (36) PTC 377 (Bom).
23 R.G. Anand v . Deluxe Films AIR 1978 SC 1613 [LNIND 1978 SC 201].
24 The Copyright Act, 1957, section 57, refers to the moral rights as "author’s special rights". See also The Berne
Convention, Article 6 bis. For details, see Chapter VI. infra .
25 See sections 22, 29, Indian Copyright Act,1957.
26 See, Berne Convention, Article 9, 10, 10 bis; section 52; Article 13, TRIPS, 1994; Article 10, WCT, 1996.
27 See Lavato S.P.A. v. Previndha Jagivadas Mehta 2008 (36) PTC 353 (CB); Leo Food v. Nutrine Confectionary Co. (P)
Ltd. 2008 (36) PTC 358 (CB); Ramesh Chand Sole Proprietor v. Rikhab Chand Jain, Sole Proprietor 2010 (44) PTC 39
(CB); Dalip Kumar Sohan Lal Maheshwari v. Narayan Atluram Chaattija 2010 (43) PTC 614 (CB) Godrej Consumer
Products Ltd. v. Ashok Kumar Jain 2010 (43) PTC 606 (CB).
28 Section 13 (2)(ii), Copyright Act, 1957.
29 Inserted by Act 34 of 1994, w.e.f. 10/05/1995.
30 Article 9 (2), 10, 10 bis, 14 bis (2)(b), 11 bis (2) and 13 (1).
31 TRIPS, 1994, Article 13.
End of Document
CHAPTER II - International Conventions
ALKA CHAWLA
Chapter II International Conventions
1. Emergence and Genesis of Copyright Law

Authors utilize existing works in the preparation of new works. The result may be a better production, or it may not,
but the authors have always sought to protect their own works from plagiarism 1 i.e. appropriation of literary
composition of another and passing them off as the product of one’s own mind. 2 Such protection has now been
accorded in most civilized countries in the form of copyright. Lord Atkinson in Macmillan & Co. Ltd. v. Cooper , 3 has
opined that the moral basis on which the copyright protection is given rests in the Eighth Commandment, namely. ‘
Thou shalt not steal .’ The importance of such protection became most apparent after the invention of the printing
press by Johannes Gutenberg in 1436, which made duplication of books very fast as compared to manual writing
by authors. A consensus emerged among nations regarding granting of protections to authors against unauthorized
reproduction of their works. But a controversy was carried on between booksellers and lawyers as to whether
authors were entitled to exclusive rights of multiplying copies of the work as " property " or as " privilege ". 4 The
debate between considering copyright as " property or privilege " had substance in it. If authors or their assignees
could make out that their right to the exclusive multiplication of copies of the book or the right of reproduction ought
to be regarded as property in the same way as lands, houses, books and chattels, it followed that the right was one
of indefinite duration and could be so disposed of in the market, inter vivos , or bequeathed or left to descend to
relatives according to the laws of inheritance. If, on the other hand, it was not property but privilege, then its term of
enjoyment could and would be measured, limited, restricted according to the working of Letters Patent, or of the Act
of legislature or other documents which created it. 5 The French were against the "theory of property" in books as
"property" means ‘exclusion’ and all that the laws do is to protect people who are lawfully in possession of their own
or to restore their property to those who have been dispossessed by force or fraud. The essence of property is an
unwillingness to share it, but the literary art lives by " communication ", its essence is the telling of a tale with the
object of creating an impression and of causing repetition. Authors’ rights are not based on a desire to exclusive
possession of that which he has written. He does not want to be left alone with his own. The desire is to make his
work known and by publication (reproduction) he gives it to the world.
The common law countries treated copyright, in effect, as a form of property, capable of being created by any
individual or corporate author, and once created, susceptible to commercial exploitation in the same way as any
other form of property, the component rights being exclusively directed to securing the enjoyment of the economic
potential of the property.
In civil law countries, the author’s right was also regarded as having ‘property’ characteristics but there was an
added dimension to author’s right i.e. the intellectual or philosophical concept, that the work of an author is an
expression of his personality, which by natural justice requires protection just as much as the economic potential of
the work. 6
2. Global Harmonisation of the Copyright Law

The norms of copyright were not universal as copyright traditions in common law and civil law countries were
different The countries, therefore, made an effort for harmonisation of laws and started entering into bilateral,
regional and international treaties. The norms of copyright and neighbouring rights today are embodied in an
interlocking network formed by the Berne, 7 Universal Copyright Convention, 8 the WIPO Copyright Treaty 9 and the
neighbouring rights treaties – the Rome, 10 Geneva 11 and Brussels Conventions 12 and the WIPO Performances
and Phonograms Treaty. 13 The substantive and procedural norms of the TRIPS agreement affect both copyright
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and neighbouring rights. 14 The conventions and treaties of this interlock are described below.
Berne Convention for the Protection of Literary and Artistic Works
The above stated need for a uniform system led to the formulation and adoption on September 9, 1886 of the Berne
Convention for the Protection of Literary and Artistic Works. The Berne convention is the oldest international treaty
in the field of copyright. It is open to all States. 15 Instruments of accession or ratification are deposited with the
Director General of the World Intellectual Property Organization. 16
The Convention rests on three basic principles:

(1) The principle of national treatment . It means that a Berne Member country must extend the same
treatment to the works of nationals of other Berne Member countries as are enjoyed by its own nationals.
This has the effect that a national of a country with a low level of protection gets better protection abroad
than he can get at home. The national will eventually bring pressure to bear on the authorities of his
country for better protection.
(2) Automatic protection . Under Berne, no formalities are required as pre-conditions to protection.
(3) Independence of protection . Enjoyment and exercise of the rights granted is independent of the existence
of protection in the country of origin of the work.
Seven major revisions 17 took place in the Berne Convention in order to improve the international system of
protection of copyright. Changes were effected in order to cope with the challenges of accelerating development of
technologies in the field of utilization or reproduction of authors’ works, to recognize new rights, and to allow for
appropriate revisions of established rights.
The Paris Additional Act of 1896 added protection for photographs. 18 The 1908 Berlin Act established a minimum
term of protection for fifty years after the author’s death. 19 The 1908 Act also added a qualified right to make
recordings of musical works 20 and established the principle that a work’s protection in any country of the Union is
independent of its protection in its country of origin. 21 It also added protection for cinematographic productions as
derivative works. 22
The 1928 Rome Act added the moral rights of attribution and integrity to the Convention’s minimum rights, 23 as well
as right to broadcast copyrighted works, which could be subjected to a compulsory license under national
legislation. 24 In case of joint authorship, the Rome Act provided that term of protection was to be measured from
death of last surviving author. 25
The 1948 Brussels Act strengthened or clarified several minimum Convention rights, including moral right, the
adaptation right, and the translation right. It also expanded the broadcast right to include television, 26 added works
of applied art and industrial designs as examples of protected work, 27 and clarified rights in cinematograph films. 28
The Brussels Act 1948 marked the end of a period. The structure of the Convention and the principal rights had
been settled, a substantial number of States had joined the Union. 29 Thereafter, new problems began to dominate
the scene, important questions were raised, for example, how the ownership in case of neighbouring rights was to
be settled. How the Convention was to respond to new technologies became a very important issue.
By the time next revision conference was convened in Stockholm in 1967 30 three events had taken place which
had a bearing on these problems and on the Berne Convention. First, the Universal Copyright Convention was
created in 1952 with the United States as a member. 31 Second, International Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations dealing with neighbouring rights was
adopted in Rome on October 26, 1961. Third, the third world countries were pressing for a simpler convention with
a lower level of protection. 32 The Stockholm Conference therefore, had to deal with two groups of problems: the
general revision of the Berne Convention in the wake of new technologies and neighbouring rights and the problem
of accommodating the wishes of the developing countries which were members of the Union.
The first was achieved by the revision of Articles 1 to 20, the second by the revision of Article 21 and the Additional
Protocol Regarding Developing Countries. The Protocol never came into force, as it was not ratified by the required
number of States. 33 After nearly four years of arduous work, the Protocol was radically revised at the Paris
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Conference in 1971. A special treatment for the developing countries was incorporated into the Universal Copyright
Convention as well as into the Berne Convention, in almost identical terms. 34 The Paris Act provided for the first
time the right of reproduction as a minimum standard. 35 Article 9 (1) of the 1971 Berne Paris Text provides:
"Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the
reproduction of their works, in any manner or form". The Paris Act is the current text of the Berne convention and
entered into force on October 10, 1974.
The Appendix 36 to the 1971 Paris Act of the Berne Convention provides for special facilities open to developing
countries 37 concerning translation and reproduction of works of foreign origin. 38
Universal Copyright Convention, the Geneva Act, 1952
The Berne Convention suffered from two weaknesses. It lacked universality as the two super powers i.e. United
States of America and USSR, and many Asian and African countries were not Members of the Berne Convention.
Second, the Berne Convention provided for high level of protection which prevented some countries from joining the
Union. The impetus for a universal convention came from a newly founded cultural organization, United Nations
Educational, Scientific and Cultural Organization. It aimed at attracting all countries, particularly the USA without
forcing the Berne Union Members to lower their standard of protection. The Universal Copyright Convention (UCC)
got its inspiration from the aims of THE UNITED NATIONS . 39 The UCC by its terms was independent of the
operation of the Berne Convention but, in the event of any conflict between the terms of the two conventions, the
terms of the Berne text prevailed. 40
In 1971 the UCC was amended to include three basic rights 41: the reproduction right, the broadcasting right and the
public performance right.
Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS Agreement), 1994
The pre-TRIPS era saw the world divided into groups of nations, following a wide range of standards in intellectual
property rights. These variations were serving as impediments for facile international trade in goods and services
especially in the area of legal diffusion of knowledge, TRIPS tried to harmonise them at a global level.
The TRIPS Agreement is divided into seven Parts .
Part I is entitled "General provisions and basic principles". It consists of eight Articles (Articles 1-8) which determine
how the basic principles of trading systems and other intellectual property agreements should be applied vis-a-vis
TRIPS.
Part II is entitled "Standards concerning the availability, scope and use of IPRS". It divides the IP into seven heads
and determines the standards to give protection to each kind of IP. This part is divided into eight sections which
consist of 32 Articles (Articles 9-40).
Part III is entitled "Enforcement of IPRS". It consists of five sections namely, General obligations; Civil and
administrative procedures and remedies; Provisional measures; Special requirements related to border measures;
and Criminal procedures. This part consists of 21 Articles (Articles 41-61). Each section is presented separately .
Part IV of TRIPS Agreement is entitled, "Acquisition and maintenance of IPRS and related inter-partes procedures".
It consists of only one Article (Article 62). It establishes principles that should ensure that formalities and procedures
concerning the acquisition and maintenance of IPRS existing in a Member are reasonable and that final
administrative decisions in a Member are generally subject to review by a judicial or a quasi -judicial authority.
Part V of TRIPS Agreement is entitled "Dispute prevention and settlement". It consists of two Articles (Article 63 and
64). It provides for transparency of laws and procedure for settlement of disputes between members of WTO.
Part VI entitled "Transitional Arrangements" consists of three Articles (Articles 65-67). It determines the dates by
which members are obliged to apply the provisions of the TRIPS Agreement. It also establishes the obligation of
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developed country members to provide, on request and on mutually agreed terms and conditions, technical and
financial cooperation in favour of developing and least developed country members.
Part VII entitled "Institutional Arrangements Final Provisions," consists of six Articles (Articles 68-73). They deal
inter alia , with the task of the council for TRIPS, obligation on member States to cooperate to eliminate
international trade in infringing goods, provision for review and amendment of TRIPS etc.
The TRIPS Agreement further requires members to grant specific rights to performers, phonogram producers, and
broadcasting organizations. It mandates the Members to give performers the right to communicate their
performances to the public or broadcast them by wireless means, to fix their unfixed performances, and to
reproduce fixations. 42 Phonogram producers must receive the "right to authorize or prohibit the direct or indirect
reproduction of their phonograms." 43 Broadcasting organizations must receive the right to fix and reproduce
fixations of broadcasts as well as to re-broadcast them by wireless means and to communicate television
broadcasts to the public. However, the Agreement allows members to provide for conditions, limitations, exceptions
and reservations to the extent permitted by the Rome Convention. 44
Intellectual property rights are now administered both by the WIPO and the WTO. India, being a member of both the
organizations, namely, WIPO and WTO, has to abide by the international rules provided by them.
WIPO Copyright Treaty, 1996
In the 1970s and 1980s, a number of important new technological developments took place – reprography, video
technology, compact cassette systems facilitating "home taping", satellite broadcasting, cable television, the
increase of the importance of computer programmes, computer generated works and electronic databases etc. For
a while, the international copyright community followed the strategy of "guided development " by study and
discussion, rather than trying to establish new international norms. 45 This means that guidance was provided to
governments by various international bodies as to how to respond to the challenges thrown by these new
technologies in the field of intellectual property law. This guidance policy did create an impact on the national
legislations but it was soon recognized that guidance was not sufficient.
The preparation of new binding international norms began in two forums – at GATT in the framework of the
Uruguay Round negotiations resulting in WTO and at WIPO. After the adoption of TRIPS Agreement under the
auspices of WTO, the preparation of new copyright and neighbouring right norms in the WIPO Committee was
intensified to deal with specially those problems that were not covered by TRIPS.
On December 20, 1996, representatives of approximately 120 countries participated in a Diplomatic Conference to
discuss copyright and neighbouring rights questions. This Diplomatic Conference in 1996 was a result of series of
sessions 46 of a committee of experts on a possible Protocol to the Berne Convention for the protection of literary
and artistic works. The need for such a Protocol was felt because there were certain questions in respect of which
professional circles had no uniform view and what was of particular concern was that governments party to the
Berne Convention interpreted their obligations under the Berne Convention differently. The proposed Protocol was
mainly destined to clarify the interpretation of certain existing rules in order to provide adequate solutions to the
questions raised by new economic, social, cultural and technological developments; to introduce new norms in
order to develop and maintain the protection of the rights of the authors in their literary and artistic works in a
manner as effective and uniform as possible and further to maintain a balance between the rights of authors and
the larger public interest, particularly education, research and access to information as reflected in the Berne
Convention. The Conference at it’s eighth session adopted the WIPO Copyright Treaty together with the WIPO
Performances and Phonograms Treaty 47 1996, in order to achieve the above objectives. The WCT came into force
on 6th April 2002 and WPPT on 20th May 2002. 48
The WCT is closely connected to the 1971 Paris Act of the Berne Convention. The WCT obligates the contracting
parties to comply with Articles 1 to 21 and the Appendix of the Berne Convention. Article 1 of the WCT states that it
is a "special agreement within the meaning of Article 20 of the Paris Act, and that nothing in the Treaty is to
derogate from the contracting parties existing obligations under the Berne Convention".
The WCT expands on three aspects of protectable subject matter under the 1971 Berne Convention Paris Act that
had assumed significance in the contemporary digital environment:
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1. Computer programmes are protectable as literary works within the meaning of Article 2 of the Berne Convention
Paris Act. 49
2. Compilations of data or other material "which by reason of the selection or by arrangement of their contents
constitute intellectual creations, are protected as such" . 50
3. Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical
concepts as such. 51
The WCT provides for certain new rights also :
1. It provides for right of distribution for authors of literary and artistic works. 52 Under the Berne Convention, such a
right was granted explicitly only in respect of cinematographic work.
2. It provides a qualified exclusive right of authorizing commercial rental 53 to the public in respect of computer
programs, cinematographic works and works embodied in phonograms of the originals or copies of their work in
order to strengthen the right of reproduction of authors.
3. Authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public
of their works, by wire or wireless means, including the making available to the public of their works in such a way
that members of the public may access these works from a place and at a time individually chosen by them. 54
The WCT further requires contracting parties, when creating exceptions to rights granted under the Treaty, to abide
generally by the formula that Article 9 (2) of the Berne Convention Paris Act prescribes for limitations of the
reproduction right. 55 The Treaty also requires contracting states to protect against circumvention of encryption
technologies for copyrighted works, 56 and against interference with electronic rights management information. 57 It
also requires effective remedies to enforce rights under the Treaty. 58 India is not a member of the WCT.
3. Special Conventions in the Field of Neighbouring Rights

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations, 1961 (Rome Convention)
The concept of neighbouring rights gained importance with technological developments. Unauthorized duplication
or reproduction of sound recordings of musical performances became a matter of concern for phonogram industry.
The Diplomatic Conference in Rome in 1928 passed a resolution asking governments to consider the possibility of
adopting measures to safeguard the interests of performers and producers of phonograms. Drafts were prepared
for an annexure to the Berne Convention that would deal with the rights of performers, phonogram, producers and
broadcasting organizations. 59 On the other hand, the International Labour Organisation (ILO) had maintained since
1926 a continuing interest in the protection of performers and the problem was considered at a meeting in Sam
Aden, Switzerland, in 1939. Drafts were prepared in cooperation with the Bureau of Berne Union but all progress
was stopped for several years by the outbreak of World War-II.
Different committees of experts prepared drafts of conventions but finally, in 1960, a committee of experts
convened jointly by WIPO, UNESCO and ILO, met at Hague and drew up a draft convention. This served as a basis
for the deliberations in Rome, where a Diplomatic Conference agreed upon the final text of the International
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, the Rome
Convention of October 26, 1961. This Convention was signed by forty states, which did not include the USA, and
came into force on May 18, 1964. 60 The structure of the principal provisions of the Rome Convention are somewhat
similar to the Berne Convention, viz. :
1. It is also based on the principle of national treatment. 61 National treatment is defined separately in respect of
performers, 62 producers of phonograms 63 and broadcasting organizations. 64 Like the Berne Convention it makes
such national treatment subject to certain minima of protection. 65
2. It permits exceptions for private use, 66 etc.

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3. It lays down a minimum term of protection of 20 years. 67
Unlike the Berne Convention, the Rome Convention contains the principle of reciprocity in respect of certain rights
expressed by reservations which any member State can make at any time. 68
Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms,
1971 (Geneva Phonograms Convention)
With technological developments in 1960s came a number of duplicating machines, which played a massive role in
record piracy, 69 prejudicially affecting the right of reproduction of producers of phonograms. The recording industry,
therefore, mounted great pressure on WIPO and UNESCO to look into the question of international sanctions
against record piracy. Both these organizations, therefore, convened a committee of governmental experts in 1971,
which produced a draft treaty for action at a diplomatic conference in Geneva seven months later. The Phonograms
Convention was opened for signature on October 29, 1971 and came into force on April 18, 1973. 70
Protection in the Convention is granted not only against making duplicates of the phonogram, but also against the
distribution of illicit duplicates and importation of such duplicates for distribution. 71
The means by which the Phonogram Convention is to be implemented are a matter of domestic legislation. They
may include protection by granting copyright in the phonogram, or by granting other specific (neighbouring) rights,
or by the law relating to unfair competition or by penal sanctions. 72
WIPO Performances and Phonogram Treaty, 1996 (WPPT)
WPPT was formulated at the same diplomatic conference as the WCT and it responds to many of the same issues
presented by new electronic media for disseminating creative productions. Just as the WCT draws several of its
operative concepts from Berne Convention, the WPPT draws on elements of the Rome Convention, 1961.
The WPPT approximates Article 6 of the Berne Convention Paris Act in requiring that performers receive rights of
attribution and integrity in their live aural performances or performances fixed in phonograms. 73 This is the first time
moral rights have been prescribed for performers in an international agreement 74
The provisions of the WPPT relating to the digital agenda cover the following issues:
(1) Certain terms like performer, phonogram, fixation, producer of a phonogram, publication, broadcasting, and
communication to public are defined. 75
(2) Rights applicable to storage and transmission of performances and phonograms in digital systems. 76
(3) Limitations on and exception to rights in a digital environment. 77
(4) Technological measures of protection and rights management information. 78
Convention Relating to the Distribution of Programme-carrying Signals Transmitted by Satellite (Brussels Satellite
Convention), 1974
This Convention regulates satellite transmission as a matter of public international law, obligating member States to
comply with regulatory standards rather than investing authors and broadcasters with private rights against
unauthorized carriage of signals.
The Brussels Convention differs from traditional copyright and neighbouring rights treaties: The Convention protects
against distribution of programme-carrying signals rather than against distribution of the signal’s content. 79 This
means that a signal will be protected even if it’s content is unprotected by copyright or neighbouring right.
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Beijing Treaty on Audiovisual Performances, 2012
This treaty desires to develop and maintain the protection of the rights of performers in their audiovisual
performances in a manner as effective and uniformly as possible. The need for this treaty was felt because WPPT
does not extend protection to performers in respect of their performances fixed in audiovisual fixations. The Treaty
grants performers rights both for the offline and on line exploitation of their performances (e.g. the distribution or
rental of their performances - for instance in DVDS – by making them available on the Internet etc.). These rights
would allow performers to be fairly remunerated when their performances are used. It also recognises performers’
moral rights (i.e. the right to be identified, the right to object to distortions of the performance). Performers from
countries ratifying or acceding to the Treaty will enjoy the minimum level of protection granted by the Treaty plus
national treatment (i.e. their performances will also be protected when exploited by other contracting parties).
POINTS TO REMEMBER
1. The common law countries treated copyright as form of property. The civil law countries gave an added
dimension to the work of the author by treating it as an extension of his personality.
2. The Berne Convention underwent seven major revisions. It is based on three principles: The Principle of National
Treatment, Automatic Protection and Independence of Protection.
3. The Universal Copyright Convention of September 1952 was created to provide an alternative to the Berne
Convention. The United States ratified the UCC in 1955. The UCC imposes fewer substantive requirements than
the Berne Convention. For countries that are members of both the Berne Convention and the UCC, in cases of
conflict between the two conventions the Berne Convention prevails.
4. TRIPS Agreement became an annexure to the agreement establishing the World Trade Organization (WTO). In
addition to providing for international minimum standards of protection in the area of intellectual property, TRIPS
establishes standards for the enforcement of such rights.
5. TRIPS is divided into seven parts. It provides for a minimum level protection for IPRS to be provided by each
member State. The member countries may, however, provide for higher standards of protection, if deemed fit.
6. WIPO Copyright Treaty is an extension of the Berne Convention to meet the requirements of the contemporary
digital environment.
7. WPPT is an extension of the Rome Convention to meet the requirements of the contemporary digital
environment. It requires that performers shall be given rights of attribution and integrity in their live aural
performances or performances fixed in phonograms.
8. India is a member of Berne and UCC but has still not ratified WCT and WPPT.
9. Intellectual property rights are now administered both by WIPO and WTO.
10. Special conventions in the field of neighbouring rights are: Rome Convention, 1961; Geneva Phonograms
Convention, 1971; WPPT, 1996; Brussels Satellite Convention, 1974; Beijing Treaty on Audio-visual Performances,
2012.
1 Ruck Carter and Skone James, Copyright Modern Law and Practice (London: Faber & Faber, 1965) p. 28; S.M.
Stewart, International Copyright and Neighbouring Rights (London : Butterworths, 2nd ed.,1989) p. 13.
2 Black’s Law Dictionary with pronunciations, Centennial Edition (1891-1991) (West Publishing Co.).
3 3. (1924) 40 T.L.R. 186at p. 187.
4 Augustine Birelle, Seven Essays on the Law and History of Copyright in Books (London : Cassel and Co.,1989) p. 10.
Page 8 of 10
5 Ibid., at p. 11.
6 WIPO, supra note 5 at p. 25; Merges, Menell, Lemley and Jorde, Intellectual Property in the New Technology Age,
Aspen Law & Business , (1977) p. 322; Raymond Sarraute, Current Theory on the moral right of Authors and Artists
under French Law , 16 American Journal of Comparative Law (1968) p. 465; For other philosophical views, see
generally Alfred Yen, Law: Restoring the Natural Copyright as Labor and Possession 51 Ohio State Law Journal (1990)
p. 517 (tracing roots of natural law in American Copyright); Justin Hughes, The Philosophy of Intellectual Property 77
Georgetown Law-Journal (1988) pp. 287, 350-353; Gillian Davies, The Convergence of Copyright and Authors’ Rights –
Reality or Chimera? 26 International Review of Industrial Property and Copyright Law (1995) p. 964.
7 Berne Convention for the Protection of Literary and Artistic Works, Paris Text 1971; Also see Sam Ricketson, The
Berne Convention for the Protection of Literary and Artistic Works : 1886 - 1986 (QMC, University of London, 1987) pp.
130, 131; Paul Edward Geller, Copyright Protection in the Berne Union : Analyzing the Issues 13 Columbia Law Journal
(1989) p. 439.
8 Universal Copyright Convention, Paris Text 1971.
9 WIPO Copyright Treaty, Geneva, 1996.
10 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization,
Rome, 1961.
11 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms,
Geneva, 1971.
12 Convention Relating to Distribution of Programme-Carrying Signals Transmitted by Satellite, Brussels, 1974.
13 WIPO Performances and Phonograms Treaty, Geneva, 1996.
14 Agreement on Trade Related Aspects of Intellectual Property Rights, 1994.
15 166 States (as on October 15, 2012) are Members of Berne Convention. See
http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15 accessed on 1 February, 2013.
16 See WIPO, Intellectual Property Reading Material (1995) p. 5.
17 The Paris Additional Act (1896); The Berlin Act (1908); The Additional Protocol (Berne, 1914); The Rome Act (1928);
The Brussels Act (1948); The Stockholm Act (1967); The Paris Act (1971).
18 Berne Convention, Paris Additional Act 1896, Article II (I)(B).
19 Berne Convention, Berlin Text 1908, Article 7 (1)(2).
20 Ibid ., Article 13.
21 Ibid ., Article 4 (2).
22 Ibid., Article 14 (2).
23 Berne Convention, Rome Text 1928, Article 6.bis
24 Ibid ., Article 11.bis
25 Ibid., Article 7 bis (1).
26 Berne Convention, Brussels Text 1948, Article 11.bis
27 Ibid ., Article 2 (1), (5).
29 55 States by 1st January, 1967 joined the Berne Union. The countries to which this convention applies constitute a
Union. 166 States (as on October 15, 2012) are Members of Berne Union: see supra note 15.
30 On the history of the Stockholm Conference, see Robert D. Hadl, Toward International Copyright Revision : Report on
the Meetings in Paris and Geneva , September 1970 , 18 Bull Copyright Society (1970); Charles F. Johnson, The
Origins of the Stockholm Protocol , 18 Bull Copyright Society (1970) p. 91; Irwin A. Olian, Jr., International Copyright
and the Needs of Developing Countries : The Awakening at Stockholm and Paris 7 Cornell International Law Journal
(1974) pp. 81,95-104; Paul Goldstein, International Copyright, Principles Law and Practice (Oxford : 2001); S.M.
Stewart and Hamish Sandison, International Copyright and Neighboring Rights (Butterworths 2nd ed., 1989).
31 The USA became a Member of Berne Convention only in 1989.
32 The challenge came from developing countries led by India, followed by Tunisia who demanded special concessions,
especially in the field of education in respect of translation right and reproduction right. They made a strong case to the
effect that without easy access to the literary & scientific works of the developed countries they could not achieve the
economic and social progress they were trying to achieve, an aim to which particularly United Nation Educational
Scientific and Cultural Organization was devoted: See S.M. Stewart, supra note 8, at p. 113.
Page 9 of 10
33 See S.M. Stewart, supra , note 1 at p 113.

34 Pursuant to this, amendments were introduced in the 1957 (Indian) Copyright Act, in 1983.
35 Berne Convention, Paris Text 1971, Article 9 (1). According to Professor Ulmer, "The difficulty which had previously
been encountered was that regulation of the reproduction right would also have to contain provisions on the exceptions
permitted by the contracting States. In Stockholm a formula was found whereby the Contracting States reserved the
right to permit reproduction in certain special cases, provided that such reproduction neither conflicts with normal
exploitation of the work nor unreasonably prejudices the legitimate interests of the author". Eugen Ulmer, One Hundred
Years of the Berne Convention, 17 International Review of Industrial Property and Copyright Law (1986) p. 707, For
details on right of reproduction see Chapter IV below.
36 International Bureau of WIPO, Berne Convention for the Protection of Literary and Artistic Works : Basic Rules and
Special Rules for Developing Countries. WIPO/GIC/CNR/GE/86/4 .
37 Ibid ., Countries, regarded as developing countries, are in conformity with the established practice of the General
Assembly of the United Nations.
38 See Appendix (Special provisions regarding developing countries) to Berne Convention.
39 Arpad Bogsch, The Law of Copyright and the Universal Convention (Sijthoff Leyden Bowker: 3rd revised edition, 1972)
p. 4: The aim of the UN is that if people know each other they will understand each other, and that there is no better
means of knowing than through reading the books of other peoples, listening to their music, viewing their motion
pictures and in general becoming acquainted with what their minds have created.
40 See Universal Copyright Convention, Paris Text,1971 Article XVII (1):"The Convention shall not in any way affect the
provisions of the Berne Convention for the Protection of Literary and Artistic Works or membership in the Union created
by the Convention".
41 Ibid ., Article IVBIS.
44 Ibid ., Article 14 (6) adds "However, the provision of Article 18 of the Berne Convention (1971) shall also apply, mutatis
mutandis , to the rights of performers and producers of phonograms in phonograms."
45 WIPO, supra note 40 at p. 262.
46 In all, eight sessions were held in Geneva: first session from Nov. 4 – 8, 1991, second from February 10 – 17, 1992,
third from June 21 – 25, 1993, fourth from December 5 – 9, 1994, fifth from September 4 – 8 and 12, 1995, The last
three were held in 1996 itself i.e. sixth from February 1 – 9, seventh from May 22 – 44 and the last from December 2 –
20.
47 See R.V. Vaidyanatha Ayyar, Interest or Right? The Process and Politics of a Diplomatic Conference on Copyright,
Journal of World Intellectual Property (1998) p. 3; Jorg Reinbothe, Maria Martin-Part & Silke Von Lewinski, The New
WIPO Treaties : A First Resume, 19 European International Property Report (1997) p. 171
48 See http://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_32. html accessed on 1 February, 2013.
49 Ibid ., Article 4. The scope of protection for computer programmes under Article 4, read with Article 2, is consistent with
Article 2 of the Berne Convention and on par with Article 10 of TRIPS.
50 Ibid ., Article 5. This is on par with Article 10 of TRIPS.
51 Ibid ., Article 5. This is on par with Article 10 (2) of TRIPS.
52 Ibid ., Article 6. WCT, 1996; The Agreed Statements of the Diplomatic Conference that adopted the Treaty states in
relation to Articles 6 & 7: "As used in these Articles, the expressions ‘copies’ and "original and copies" being subject to
the right of distribution and right of rental under the said Article refer exclusively to fixed copies that can be put into
circulation as tangible objects".
53 Ibid ., Article 7. This is consistent with Article 14 (4) of TRIPS Agreement.
54 Ibid ., Article 8. Agreed statement concerning Article 8: "It is understood that the mere provision of physical facilities for
enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or
the Berne Convention. It is further understood that nothing in Article 8 precludes a contracting party from applying
Article 11 bis (2) of the Berne Convention". Such a right is given by section 14 (a) (iii) of the Copyright Act to authors of
literary, dramatic or musical works in India.
55 Ibid ., Article 10. Agreed statement concerning Article 10: "It is understood that the provisions of Article 10 permit
Contracting Parties to carry forward and appropriately extend into the digital laws which have been considered
acceptable under the Berne Convention. Similarly these provisions should be understood to permit contracting parties
to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood
Page 10 of 10
that Article 10 (2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by
the Berne Convention." For details on limitations to rights see Chapter VI.
56 Ibid ., Article 11. For details see Chapter III. "Encryption is jumbling or coding of sensitive data to make it unreadable by
another for security purposes": Webster’s Pocket Computer Dictionary , (CBS Publishers, 2001) p. 67.
59 See Sam Ricketson, supra note 28.
60 WIPO, Guide to the Rome Convention and to the Phonograms Convention (1981) pp. 8, 9.
61 Rome Convention, 1961, Article 2 (1).
65 See Rome Convention, 1961, Article 7 (for performers), Article 10 (for phonogram producers), Article 13 (for
broadcasting organizations).
66 Ibid., Article 15.
69 The concern for piracy has been expressed at a number of forums. See generally, Amit Kr. Chandra, Shut Doors on
Piracy , Times of India (22-7-02); Amarchand Mangaldas, FICCI, Frames 2000, The Entertainment Law Book (2002)
pp. 36-42; B.B. Chib, H.S. Anand Save Music Kill Piracy , The Indian Phonographic Industry (16-4-1991); See also
Statement of Objects and Reason to the Copyright (Amendment) Bill, 1984.
70 See generally WIPO, Guide to the Rome Convention and Phonograms Convention (1981) pp. 91-93, Gillian Davies,
Piracy of Phonograms (Sweet and Maxwell 2nd ed., 1986) pp. 36-43; Eugen Ulmer, The Convention for the Protection
of Producers of Phonograms Against Unauthorized Duplication of their Phonograms , 3 International Review of
Industrial Property and Copyright Law (1972) p. 317; Stephen M. Stewart, supra note 1, pp. 238 to 249; Kaminstein,
The Phonograms Convention , 19 Bull Copyright Society (1972) p. 175.
71 Phonograms Convention, Article 2.
72 Ibid., Article 3.
73 WPPT, 1996, Article 5.
74 Paul Goldstein, supra note 27, at p. 43.
75 WPPT, Article 2.
76 Ibid., Article 7 to 10 give to performers the right of reproduction, right of distribution, right of rental and right of making
available of fixed performances; Articles 11 to 14 give to producers of phonogram right of reproduction, right of
distribution, right of rental and right of making available of phonograms.
77 Ibid., Article 16 the Agreed Statements of the Diplomatic Conference concerning Article 7, 11 and 16 states: "The
reproduction right as set out in Articles 7 and 11 and the exceptions permitted thereunder through Article 16, fully apply
in the digital environment, in particular to the use of performances and phonograms in digital form. It is understood that
the storage of a protected performance or phonogram in digital form in an electronic medium constitutes a reproduction
within the meaning of these Articles.
78 Ibid., Article 18, 19. It is similar to provisions in the WIPO Copyright Treaty, 1996. For details, see Chapter V infra .
79 See Brussels Satellite Convention,1974, Article 2. See Chapter VII infra.
End of Document
CHAPTER III - Development of Copyright Regime in India
ALKA CHAWLA
Chapter III Development of Copyright Regime in India
1. Indian Copyright Act, 1847 and the Imperial Copyright Act, 1911
Indian copyright law has grown out of English common law and statutory law. The earliest legislation in India
relating to copyright is the Indian Copyright Act, 1847 enacted during the East India Company’s regime. The Indian
Copyright Act, 1847 was in operation from 1847 – 1911. The Imperial Copyright Act, 1911 then came into force
which extended throughout the British dominion and was brought into force in British India with effect, from
31.10.1912. This Act was replaced by the Indian Copyright Act of 1914 which was in force when India became a
sovereign independent nation in 1947 and continued to be in force thereafter for another decade before it was
replaced by the Copyright Act, 1957.
2. The Copyright Act, 1914

The Act of 1914 consisted of 15 sections. Under the Act only original work attracted the protection of copyright law.
The author’s right came into existence as soon as the work was created and registration of the author’s work was
not necessary for protection of copyright law. Protection was granted not to the ideas but to the expression of an
idea. The copyright protection was limited to 25 years after the death of the author. The infringement of copyright
was not considered as a criminal offence under the Act but it authorised the owner of the copyright to destroy the
infringing copies and prescribed penalties for infringement of copyright.
After independence in 1947 and adoption of the Constitution of India in 1950, a need was felt to consolidate the law
on copyright keeping in mind the technological developments and international conventions and therefore the
Indian Copyright Act, 1957 was passed. Krishna Iyer, J. in Indian Performing Rights Society Limited v. East India
Motion Picture Associations 1 held:
The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that the
economic system so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and
masters, whose works are invaluable are victims of piffling payments. World opinion in defense of human rights to
intellectual property led to international conventions calculated to protect work of art. India responded to this universal need
by enacting the Copyright Act of 1957.
3. The Copyright Act, 1957

The 1914 Copyright Act was replaced by the 1957 Act. It was in harmony with the Berne Convention, 1886 and the
Universal Copyright Convention, 1952. India was a member to both the Conventions. 2 The Act of 1957 was divided
into 15 chapters containing 79 sections.
Under the Act, a copyright office was established under the control of a Registrar of Copyright who was to act under
the superintendence and direction of the Central Government 3 The principal function of this office was to maintain
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a register of copyright containing the names or titles of work, the names and addresses of authors etc . 4 The
Registrar was given certain powers like entertaining and disposing of applications for compulsory licenses and
inquiring into complaints of importation of infringing copies.
The Act for the first time made a provision for the setting up of a Copyright Board. 5 The proceedings before the
Board were deemed to be judicial proceedings. 6 The definition of copyright was enlarged so as to include the
exclusive right to communicate works by radio diffusion; the cinematograph film was given a separate copyright; the
term of copyright protection was extended from 23 to 50 years which was again extended to 60 years in 1992; 7
term of copyright for different categories of work was also specified. 8 The right to produce a translation of a work
was made co-extensive with other rights arising out of copyright. 9
Provisions relating to assignment 10 of ownership and licensing of copyright including compulsory licensing in
certain circumstances; 11 rights of broadcasting organisations, 12 international copyright, 13 definition of infringement
of copyright, 14 exceptions to the exclusive rights conferred upon the author or acts which do not constitute
infringement, 15 special rights of authors, 16 civil and criminal remedies against infringement and remedies against
groundless threats or legal proceedings 17 were also introduced.
In order to keep pace with the fast technological developments in the area of copyright and also to abide by its
intellectual obligation the Government of India amended the 1957 Act in 1983, 1984, 1994 and 1999. The salient
features of these amendments are discussed below.
4. The Amendments of 1983

The amendment introduced section 32A for issuing compulsory licenses for reproduction of an edition of literary,
scientific or artistic work, whether or not the work is Indian for the purposes of systematic instructional activities
where copies are not made available in India or have not been put on sale in India for a period of six months after
the expiration of certain prescribed periods from the date of the first publication. 18
Section 31A 19 was inserted which provided that in case of unpublished work where the author is dead or unknown
or owner of copyright cannot be traced, any person wishing to publish material or translation thereof may advertise
his proposal and apply to the Copyright Board for permission which would grant such permission and fix an
appropriate royalty. The royalty could be deposited in a public account for a specific period so as to enable the
owner of copyright or his heirs, executors or the legal representatives to claim such royalty at any time.

The Members of Parliament while considering the Bill of 1983 to amend Copyright Act, 1957 voiced concern at the
problem of piracy having a serious impact on the right of reproduction of authors and, stressed upon the need of
taking sufficient anti-piracy measures.
In an effort to amend the Act, it was stated:
Mainly there are three types of piracy: piracy of printed word; of sound recordings and of cinema films. The object of pirates
in all such cases is to make money and avoid payment of legitimate taxes and royalty. In respect of books, it is estimated
that 400-500 titles are pirated every year in India and on each of the pirated titles, the loss to the government in the form of
tax evasion amounts approximately to Rs. 11,000/-. The emergence of new techniques of recordings, fixation and
reproduction of audio programs combined with the advent of video technology has greatly helped pirates. It is estimated
that losses to the film’s producers and other owners of copyright, amount to several crores of rupees. The loss to
government in terms of tax evasion also amounts to crores of rupees. In addition, because of the video boom in the
country, there are reports that uncertified video films are exhibited on a large scale. A large number of video parlors have
also sprung up and they exhibit such films by charging fee from their clients. 20
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In view of these circumstances Copyright Act 1957 was again amended in 1984 by making punishment for such
offences more stringent. 21 It provided for enhanced punishment in cases of continuing convictions and also
declared offences of infringement of copyright as an economic offence so that the period of limitation as provided in
the Criminal Procedure Code is not applicable to these offences. The amendment made infringement of copyright, a
cognizable and non-bailable offence.
The amendment also took note of technological advances, for example, "video film" was added to the definition of
"cinematograph" 22 film and "computer programs" to the definition of "literary work" 23 and a new definition of
"duplicating machine" 24 was also inserted.

This amendment was introduced after the addition of the TRIPS Agreement. It introduced protection for performers
by giving them a right to reproduce their live performances by way of sound or visual recordings etc. 25 A new
chapter dealing with copyright societies, seeking to promote effective administration of rights of the authors,
composers and other creative artists 26 and a definition of reprography, 27 was also inserted. The amendment also
provided for the assignment of copyright by an author or artist to protect the interests of both assignor and assignee
and also for protection of computer programs, cinematograph films and sound recordings. The Indian Copyright Act
became one of the most progressive copyright laws with the introduction of these amendments with respect to the
rights of authors, performers and producers of phonograms etc. The Act has also always tried to keep pace with the
technological developments, though many gaps between the law and technology still remain. This work attempts to
analyse some of these areas and the ways by which the gaps could be filled up.
7. THE Amendments of 1999

This amendment increased the protection of performers from 25 to 50 years as required by TRIPS. 28 Rental right 29
was introduced in case of computer programmes to strengthen the right of reproduction of authors of computer
programmes in accordance with WCT, 1996. 30 A new provision 31 was inserted which gave power to the Central
Government to apply Chapter VI of the Act dealing with the rights of broadcasting organisation and of performers to
broadcasting organisations and performers of certain other countries, which, fulfilled the conditions, specified
therein.
Section 42A was added whereby power was given to the Central Government to restrict the rights of foreign
broadcasting organisation and performers if it appears to the government that such a foreign country does not give
or has not under taken to give adequate protection to rights of broadcasting organisation or performer of our
country.
8. THE Amendments of 2012

The Copyright ( Amendment) Act 2012 came into force on 21.6.2012 and introduced changes, inter alia , in the
following areas:
(a) Cinematograph films
The definition of "cinematograph films" 32 is simplified by omitting a few words that elaborated visual recordings.
Since the words are omitted from the definition of cinematograph films a new definition for "visual recording" is
inserted by a new clause. 33 Visual recording now means recording in any medium by any method and includes the
storing of it by any electronic means. The recording has to be of moving images that can be perceived, reproduced
or communicated by any method.
Page 4 of 8
Section 14 (1)(d) dealing with rights of copyright owner in a cinematograph film has been re-drafted with a few
additions and deletions. The word "hire" is replaced by "commercial rental", 34 therefore, rental, lease or lending of
lawfully acquired copy of cinematograph film for non-profit purposes by a non-profit library or educational institutions
will not amount to infringement. The right to store the film in any medium by electronic or other means has been
added as a right of the producer. Previously such a right was given only to the copyright owner in case of literary,
dramatic or musical work.
The cinematograph films were considered as commissioned works prior to the amendment of 2012 and, therefore,
the producer was considered as the first owner of copyright not only with respect to the film but even with respect to
literary, dramatic, musical or artistic works incorporated in the film. 35 The amendment of 2012 has added a proviso
to section 17 whereby, the authors of literary, dramatic, artistic and musical works continue to have copyright in
their work irrespective of the fact that their work is incorporated in the film. The rights of such authors can be
assigned only for the purpose of exhibition in the film as the right of exhibition of film in a cinema hall vests with the
producer. But, their right to claim an equal share of royalty and consideration payable if their work is communicated
to public, not as part of cinematograph film in a cinema hall but by some other means, cannot be assigned to
anyone except their heirs or the copyright society registered for collection and distribution of royalty. 36 If such
assignment takes place then it will be void.
Prior to 2012 any performer lost his right as a performer once his performance was incorporated in the film. 37 A
new section 38A is inserted by the amendment whereby performer in a film is given special rights and therefore he
becomes entitled to royalty in case of commercial use of his performance. However, only those performers are
covered by this clause whose performance is not casual and incidental in the film.
The business of issuing or granting of licenses in respect of literary, dramatic, musical and artistic works
incorporated in a cinematograph films or sound recording shall be carried out only through a copyright society duly
registered under this Act. 38
(b) Compulsory and statutory licenses
The provision for compulsory license in case of works withheld from public is extended to foreign works by the
amendment of 2012 and is no more limited to Indian works. 39 Prior to the 2012 amendment compulsory license in
case of orphan works could be issued only in case of unpublished works. The provision has been extended to
published orphan works as well, whether Indian or foreign. 40
A new section 31B is inserted for providing for compulsory license for the benefit of persons with disability. Any
person working for the benefit of persons with disability on a profit basis or for business may apply to the Copyright
Board, for a compulsory license to publish any work in which copyright subsists for the benefit of such persons.
A new section 31D is inserted which deals with issue of statutory licenses for broadcasting of literary and musical
works and sound recordings. The rates of royalty to be paid to the copyright owner will be different for radio and
television broadcasting.
A new section 31C is inserted which makes statutory license for cover versions more difficult. A cover version can
now be made after five years unlike two years, which was the case pre-amendment. The person making the cover
version shall not make any alterations on the literary or musical work. Previously, alterations were permissible if
they were "reasonably necessary for the adaptation of the work", now they are only allowed "if it is technically
necessary for the purpose of making the sound recording."
(c) Compliance with WCT and WPPT
The right of reproduction has been clarified to extend to storing of work in any medium by electronic or other
Page 5 of 8
means. 41 However, some safe harbor provisions have been provided for service providers by covering transient or
incidental storage under fair dealing provisions. 42
The word ‘hire’ is substituted by "commercial rental’ in all relevant provisions except section 51. A new definition of
"commercial rental" 43 is introduced. A new definition for "Right Management Information" 44 is inserted and
exclusive rights for performers have been added to make the provisions compliant with WPPT. 45
(d) Moral rights of authors and performers
The legal heirs of the author have been granted the right to paternity and right to integrity even after the expiry of
the term of copyright. 46 Moral rights of performers are introduced by newly inserted section 38B. However, the right
of integrity of a performer will not be violated by mere removal of any portion of performance for the purpose of
editing, or to fit the recording within a limited duration, or any other modification required for purely technical
reasons. 47
(e) Changes in administrative machinery
The constitution of the Copyright Board is restricted to the chairman and two members. The Registrar is not the ex
officio secretary of the Board. The Board has the power to appoint secretary and other employees for the discharge
of the functions of the Board. 48
(f) Term of copyright for photographs
The term is specified to be sixty years from the death of the author and not from the date of the publication. 49
(g) Tariff scheme by copyright societies
A new section 33A is inserted which mandates all copyright societies to publish its tariff scheme. Any person
aggrieved by the scheme may appeal to the Copyright Board.
(h) Disputes with respect to assignment of copyright
Section 19A is amended by insertion of a new proviso which provides that disputes under this section will generally
be settled within six months after the receipt of complaint by the Copyright Board. The Board may pass interim
orders regarding implementation of the terms and conditions of assignment including any consideration to be paid
for the enjoyment of the rights assigned.
(i) Relinquishment of copyright
Section 21 is amended and now copyright can be relinquished by way of public notice and not only by way of notice
to the Registrar of Copyright.
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(j) Extension of fair dealing to all works
Section 52 (1)(a) is amended and the ambit of fair dealing is widened. The law earlier dealt with fair dealing rights
with respect to "literary, dramatic, musical or artistic works". Now it covers all works (except computer programmes)
like sound recordings and cinematograph films also. This will allow persons to make personal copies of songs and
films, make copies for research or to use film clips in class.
9. The Information Technology Act, 2000

The Information Technology Act, 2000 (hereinafter referred to as IT Act ) was enacted to provide legal recognition
for transactions carried out by means of electronic data interchange and other means of electronic communication,
commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of
communication and storage of information, to facilitate electronic filling of documents with the Government
agencies. The IT Act accordingly, amended the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s
Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934.50
This Act was enacted pursuant to THE UNITED NATIONS Commission on International Trade Law (UNCITRAL),
which had adopted the Model Law on Electronic Commerce in 1996. The General Assembly of United Nations by
its Resolution 51 had recommended that all states should give favourable considerations to the said Model when
they enact or revise their laws. The Model Law provided for equal legal treatment of users of electronic
communication and paper based communication. 52
The IT Act provides for legal recognition of electronic records 53 and digital signatures. 54 It enables conclusion of
contracts and the creation of rights and obligations through electronic medium. It has also provided for a regulatory
regime to supervise the certifying authorities issuing digital signature certificates. 55 The Act also attempts to
facilitate electronic governance. 56
Offences have been specified 57 and civil and criminal liabilities for contravention of the provisions of the Act have
also been provided for. 58 The Act provides for situations 59 where online service providers will not be held liable.
The Act clarifies that the service providers will not be held liable for any third party information or data made
available by them if he proves that the offence or contravention was committed without his knowledge or that he
had exercised all due diligence to prevent the commission of such offence or contravention.
The Information Technology Act, 2000, no doubt, has dealt with certain challenges that have been posed by the
development of digital technology but, it has not directly touched upon the issues arising under copyright law due to
digitisation.
1 AIR 1977 SC 1443 [LNIND 1977 SC 128].

2 For India, the Berne Convention came into force on 1 April 1928 and Universal Copyright Convention on 21 January
1958: S.M. Stewart, note 1, supra at pp. 143 and 183.
3 The Copyright Act, 1957, section 9.
4 Ibid. , sections 44 & 45.
8 Ibid., sections 22 – 29. The works included literary, dramatic, musical and artistic works.
9 Ibid. , section 14; according to the Act of 1914, the sole right to produce a translation of a work first published in India
extinguished after 10 years of its first publication.
10 Ibid. , sections 18 to 19A.
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11 Ibid. , Chapter VI.

15 Ibid. , section 52 also called doctrine of fair dealing.
16 Ibid. , section 57 also called special rights of author or moral rights.
17 Ibid. , sections 54 to 70.
18 section 32A. The period prescribed are: a) seven years for work relating to poetry, fiction, drama, music or art; b) three
years for work relating to natural science, physical science, mathematics or technology and c) five years for any other
work. The authority for granting the license is the Copyright Board.
19 Ibid., section 31A.
20 Statement of Objects and Reasons annexed to the Copyright Amendment Bill, 1984 (19.8.1984).
21 The Copyright Act, 1957, Chapter XIII, dealing with offences.
22 See Copyright Act, 1957, section 2 (f)
23 Ibid. , section 2 (0).
24 Ibid. , section 2 (hh).
25 Ibid. , Chapter VIII.
26 Ibid. , Chapter VII; For details on collective administration of rights see Chapter VIII infra
27 Ibid. , section 2 (x).
28 Ibid., section 38. India is a member of TRIPS section 38 was introduced as a consequence of Article 14 of TRIPS.
29 Ibid. , section 14 (1)(b)
30 WCT, 1996, Article 7.
31 section 40A.
32 Ibid. , section 2 (f).
33 Ibid., section 2 (xxa).
34 Ibid ., section 2 (fa).
35 Ibid ., section 17 (b).
36 Ibid ., section 18 (9).
37 Ibid ., section 38 (4).
38 Ibid ., second proviso to section 33 (1).
42 Ibid., section 52 (1)(b) and section 52 (1)(c).
43 Ibid., section 2 (fa).
44 Ibid., section 2 (xa).
47 Ibid., Explanation to section 38B.
50 The Information Technology Act, 2000, preamble.
51 Resolution No. 51/162, dated 30th January, 1992.
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52 See Statement of Objects and Reasons to the Information Technology Bill, 2000.
53 Ibid. , sections 11 – 14.
54 Ibid. , sections 3 and 15.
55 Ibid. , Chapters VI and VII, sections 17 – 39.
59 Ibid. , section 79, also see Chapter IX infra
End of Document
CHAPTER IV - Works in which Copyright Subsists
ALKA CHAWLA
Chapter IV Works in which Copyright Subsists
1. Introduction
The subject matter of copyright is enumerated in section 13 of the Copyright Act, 1957.
Section 13: 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 ) 1[sound recording].
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section
40 or section 41, apply, unless,—
(i ) 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;
(ii ) in the case of an unpublished work other than an 2 [work of architecture],the author is at the date of the making
of the work a citizen of India or domiciled in India; and
(iii ) in the case of an [work of architecture], the work is located in India.
Explanation .—In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section
shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist—
(a ) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
(b ) in any 1 [sound recording] made in respect of a literary, dramatic or musical work, if in making the 1 [sound recording],
copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a 1 [sound recording] shall 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 1 [sound recording] is made.
(5) In the case of an (sic. ) 2[work of architecture], copyright shall subsist only in the artistic character and design and shall
not extend to processes or methods of construction.
2. Original
The word "original" is prefixed to literary, dramatic, musical and artistic works and not to cinematograph films and
sound recordings as they are works made by making use of literary, dramatic, musical and artistic works.
Page 2 of 28
The word "original" is not defined by the legislature in USA, UK and India. The courts are often faced with the facts
where they have to determine whether the literary, dramatic, musical and artistic work before it is original or not.
The judiciary thus formulated tests to determine originality of work as and when the cases appeared before them. It
is important to understand that a strait-jacket formula cannot be designed to define "original" as it is dependent on
many factors like:
1. The kind of work, that is, whether it is primary or secondary; fiction or nonfiction ; head notes of judgments or
copyedited judgments, guide books or compilations, etc.
2. The intent of the judiciary is to lay down the test as and when a case with peculiar facts appears before it. Since
the law is in the stage of development the best for judiciary is to follow the case to case approach or
incrementalism.
3. The medium of the work :whether print, audio or visual, etc.
The concept of "original" will become more clear after going through the definitions of "work" as given in the text
that will follow and the discussions on rights and infringement in Chapter VI infra. However, some of the general
propositions to ascertain whether the work is original or not are given below.
The Copyright Acts are not concerned with the originality of ideas but with the expression of thought. For example,
the idea of "love" between a girl and a boy is in public domain and cannot be copyrighted. Different authors can
write original stories revolving around the idea of love and be protected under copyright law. Megarry, J. in Northrop
Ltd. v. Textea Blackburn Ltd. 3 stated : Copyright is concerned not with any originality of the ideas but with their
form of expression, and it is in that expression that originality is requisite. That expression must originate with the
author and not be copied from another work.
The work is original if it embodies the intellectual conception of the author as original means "owes its origin to the
author. If the defendant’s work is found to be substantially similar or even identical to an earlier work, it would still
be copyrightable as long as it can be shown by the defendant that he created the work independently of the
plaintiff’s work. If the author has utilized the plaintiff’s work then he must show that he has contributed something
more than merely trivial variations, something that can be recognized as his own. The author must be able to show
some labour, which emerges from his intellect. The law does not lay down any guiding principles with respect to the
quantum of skill and labour to be employed by the author to create his original copyrightable work. It is indeed
impossible to define in any precise terms the amount of knowledge, labour, judgment or literary skill which the
author of a work must bestow on its composition in order to acquire copyright. 4
The copyist of a written document does not produce an original work and therefore does not obtain a copyright in
his copy. The copyright vests with the author of the original work.
A person orally dictates a letter or a story to his steno typist to type and thus convert an oral work to a material form.
The copyright vests with the one who gave the oral dictation and not with the typist who gave material form to the
oral work.
A person orally narrates a story to an audience. The hearer of the story expresses it in his own words. An original
work is created by the one who gives expression to it.
A drawing which is simply traced from another drawing is not an original artistic work; a drawing which is made
without any copying from anything originates with the artist. The United States Court in Interelego v. Tyco 5 held
that anything, which is not a slavish copy of another is sufficient to be protected by copyright. The standard of
originality thus formulated by the US courts under the Copyright Act was a low one. 6
In the absence of any clear guidance on the question, all that is left is to examine the decisions on the point as
indicative of the "skill and labour" which the courts have considered requisite in various sets of circumstances. It is
difficult to decide whether the work produced by the author is original or not when the author makes use of the
existing subject matter especially in case of adaptation, abridgement, translation 7 etc. In Pary v Moring 8 the
plaintiff copied private letters of Sir William Temple and then translated them into modern English and arranged
them in the order in which he considered that they had been written and published them with the notes. The court
held that such an arrangement of private letters was "original literary work" entitled to copyright.
Page 3 of 28
In University of London Press Ltd. v. University Tutorial Press Ltd. 9 Peterson J. while commenting on the author’s
practice of drawing upon the existing stock of knowledge held:
If an author, for purposes of copyright, must not draw on the stock of knowledge which is common to himself and others
who are students of the same branch of learning, only those historians who discovered fresh historical facts could acquire
copyright in their work. If time expended is to be the test, the rapidity of an author like Lord Byron in producing a short poem
might be an impediment in the way of acquiring copyright, and the more complete his mastery on his subject, the smaller
would be the prospect of the author’s success in maintaining his claim to copyright. The preparation of a question paper by
any examiner involves selection, judgment and experience. The questions are prepared to test the students’ acquaintance
with the book thus question papers are original literary work.
In V. Ramaiah v. K. Lakshmaiah 10 the respondents wrote a "Guide" in respect of a textbook in which the appellants
had copyright. The court held that merely the use of language couched in the text book does not necessarily mean
that the respondents pirated the words particularly when the Guide was written to help the students to understand
the meaning, significance and the answers that have to be written to the questions. It is an original work. Moreover,
the respondents in this case had acknowledged the authorship of textbook and, therefore, their conduct did not
amount to infringement.
Delhi High Court in Eastern Book Co. v. Navin J. Desai 11 held that head notes of law reports can be original literary
work if they are prepared by the author using his own skill, labour and judgment.
In case of compilations the courts had previously held that the labour and skill employed in selecting and arranging
existing subject matter gives rise to an original literary work. 12 The test was called the "sweat of the brow test".
However, the Supreme Court in Eastern Book Company v . D. B. Modak 13 held that to claim copyright in a
compilation, the author must produce the material with exercise of his skill and judgment which may not be
creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely skill and
labour. The work of compilation must have a flavour of "creativity" to be called original. If a work is created by
making use of works in the public domain then "sweat of the brow" test is replaced by "minimum of creativity test".
14 In this case the question was whether there is copyright in copy-edited judgments of the Supreme Court.
3. Idea – Expression Dichotomy

The fundamental rule of copyright law is that there is no copyright in an idea but the expression of an idea is
protected 15 Article 9 (2) of TRIPS states that, "Copyright protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such." Article 2 of WCT, 1996 uses the same
language and is therefore consistent with TRIPS. The Indian Copyright Act, 1957 does not have a similar provision
but the Indian courts 16 have time and again held that there is no copyright in an idea or ideas, the copyright vests in
the expression of an idea.
In Bharat Matrimony Com. P. Ltd. v. People Interactive (I) Pvt. Ltd. 17 the plaintiff sought protection of copyright in a
system called "Assured - Contact - Phone Verification Service". The court held that it was an Interactive Voice
Response (IVR) system where a user hears a recorded voice after dialing a particular number and presses
appropriate button in accordance with the instructions provided by the recorded voice. The court held that copyright
protection does not extend to an idea, procedure, process, system or a method of operation and IVR system being
an idea, which is lavishly used by the corporate, banking Industries, Railways etc cannot be monopolised for the
benefit of one.
Where an idea ends and the expression begins is a very difficult question, which depends on the facts of each
case. The economic rationale behind the idea-expression dichotomy is explained by Landes and Posner as follows:
18
If an author of spy novels copies a portion of an Ian Fleming novel about James Bond, he is an infringer. If, inspired by
Fleming, he decides to write a novel about a British secret agent who is a bon vivant, he is not an infringer. If an economist
Page 4 of 28
reprints Professor Coase’s article on social cost without permission, he is an infringer; but if he expounds the Coase’s
Theorem in his own words, he is not.
In the case of the novel, the reason for the limited protection is easily seen. 19 The novelist creates the novel by combining
stock characters and situations (many of which go back to the earliest writings that have survived from antiquity) with his
particular choice of words, incidents, and dramatis personae . He does not create the stock characters and situations, or
buy them. Unlike the ideas for which patents can be obtained, they are not new and the novelist acquires them at zero cost,
either from observation of the world around him or from works long in the public domain. Most works of fiction that anyone
would want to copy are intended for a mass audience-which means they must use stock characters and situations in order
to be understood. To give the author of a work embodying such characters or situations ("expression") a copyright would
increase the cost of expression of later authors without generating offsetting benefits. What passes for "ideas" in the case
of most expressive writing normally is not comparable to the sort of inventions, costly to develop, that receive protection
under the patent laws. An alternative to distinguishing between ideas and expression, therefore, would be to confine
copyright protection to original works, or to a work insofar as it was original.
In Donoghue v Allied Newspapers Ltd. 20 a series of articles entitled "Steve Donoghue’s Racing Secrets" were
published in a newspaper. Donoghue, who was a well-known jockey, communicated to Mr. Felstead, a free-lance
journalist, his various adventures. Felstead made notes as the conversations went on and he then wrote the
articles. The manuscript was then taken to Donoghue who read it over and when he thought that some alterations
were necessary or desirable, they would be noted in the margin by Mr. Felstead and were subsequently, at times,
recorded. Articles based on the original series of articles were later published in another publication entitled "My
Racing Secrets by Steve Donoghue." This publication took place at the instance of Mr. Felstead. The plaintiff then
sought an injunction restraining the publication of the aforesaid work alleging that there had been an infringement of
his copyright. Justice Farwell held that the plaintiff did not have any copyright. It was observed as follows:
In the present case, apart altogether from what one may call merely the embellishments, which were undoubtedly supplied
wholly by Mr. Felstead, the ideas of all these stories, and, in fact, the stories themselves, were supplied by the plaintiff, but,
in my judgment, upon the evidence, it is plain that the particular form of language by which those stories were conveyed
was the language of Mr. Felstead and not that of the plaintiff. Although many of the stories were told in the form of dialogue,
and to some extent Mr. Felstead no doubt tried to reproduce the story as it was told to him by the plaintiff, nevertheless the
particular form of language in which those adventures or stories were sconveyed to the public was the language of Mr.
Felstead and not the language of Mr. Donoghue.
It is important to note that in Donoghue’s case the concept of joint authorship, which is recognized undersections 2
(o 13 (2) of the Copyright Act, 1957 was not agitated and therefore was not adjudicated upon. Commenting on
Donoghue’s case, Justice B.N. Kirpal in Najma Heptulla v M/s Orient Longman Ltd. 21 observed:
If the reasoning in Donogue’s case is correct, it would mean that material on the basis of which a literary book is written
would be of no importance, while deciding as to who is the author of a book. To agree with such a proposition would lead to
results, which are difficult to accept. For example, it is not unknown that great scientists may not have the literary
capabilities of transcribing their discoveries, theories and thoughts so as to be easily understood. If a scientist, therefore,
takes the services of another person with a view to transcribe his thoughts, findings and material in the form of a book or
articles, can it mean that the author of that scientific material is not the scientist himself but the author is the person in
whose language the material is expressed? In such a case the person who transcribed the thoughts may not even be able
to understand the material, which is being written, but he may still have to be regarded as a sole author, if Donoghue’s case
is accepted as correct. Surely the intention of the Copyright Act cannot be to give the status of an author only to the person
in whose language the literary piece is written while completely ignoring the person who contributed the entire material
which enabled the person to show his mastery over the language.
A literary work consists of matter or material or subject, which is expressed in a language and is written down. Both the
subject matter and the language are important. It is difficult to comprehend, or to accept, that when two people agree
(emphasis supplied) to produce a work where one provides the material, on his own, and the other expresses the same in a
language which is presentable to the public then the entire credit for such an undertaking or literary work should go to the
person who has transcribed the thoughts of another. To me it appears that if there is intellectual contribution by two or more
persons pursuant to a pre-concerted joint design to the composition of a literary work then those persons have to be
regarded as joint authors.
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In Najma’s case Maulana Azad agreed to write his autobiography, on Prof. Kabir assuring him that he would do his
best to relieve Maulana of the actual burden of writing. About two years were spent on the writing of the book.
Maulana used to describe his experiences and Kabir used to make copious notes. When sufficient material would
be collected for a chapter, a draft in English would be made by Kabir and handed over to Maulana. Maulana then
read each chapter and then both went over the chapter together. It is at this stage that Maulana is stated to have
made many amendments, additions, alterations and omissions. When the final draft was ready, Maulana went
through the manuscript chapter-by-chapter and sentence-by-sentence and made some minor alterations. There
was active and close intellectual collaboration and cooperation between Maulana and Kabir which resulted in the
book "India Wins Freedom". It was held to be a work of joint authorship.
In R.G. Anand v Delux Films 22 the plaintiff, a playwright, dramatist and producer of stage plays wrote a play entitled
‘Hum Hindustani’ based on the idea of provincialism and parochialism. The defendants made the film ‘New Delhi’
which portrays three main themes: (1) Two aspects of provincialism viz. the role of provincialism in regard to
marriage and in renting out accommodation; (2) evils of a caste ridden society; and (3) evils of dowry. After the
release of the film there were comments in the newspaper that the picture was very much like the play. The court
observed that:
a close perusal of the script of the film clearly shows that all the three aspects mentioned above are integral parts of the
story and it is very difficult to divorce one from the other without affecting the beauty and the continuity of the script of the
film. Further, it would appear that the treatment of the story of the film is in many respects different from the story contained
in the play. On a close and careful comparison of the play and the picture, but for the central idea (provincialism which is
not protected by copyright), from scene to scene, situation to situation, in climax to anti-climax, pathos, bathos, in texture
and treatment and support and presentation, the picture is materially different from the play.
The Supreme Court then laid down the following propositions:
1. There can be no copyright in an idea, subject-matter, themes, and plots or historical or legendry fact and violation
of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the
author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common,
similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on
fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s
work is nothing but literal imitation of the copyrighted work with some variation here and there it would amount to
violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one
which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see
if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a
completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad
dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are
clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after
applying the various test laid down by the case law.
7. Where however, the question is of the violation of the copyright of stage play by a film producer or a director the
task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has much
broader perspective, wider field and a bigger background where the defendants can be introducing a variety of
incidents to give a colour and complexion different from the manner in which the copyrighted work has expressed
the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and the large a
copy of the original play, violation of the copyrighted might be said to be proved.
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The Calcutta High Court in Barbara Taylor Bradford v. Sahara Media Entertainment Ltd. 23 explained the idea-
expression dichotomy by taking an illustration which is as follows:
If in plaintiff’s play hero has inherited a fortune from his uncle subject to the condition that if he dies unmarried the money
will go to his cousin, the Villain. The Villain shoots him but makes it look like an accident. The hero defeats the machination
of the Villain by bribing a beggar girl out of the streets to marry him before his death can ensue.
In defendant’s play the hero has inherited a fortune from his father subject to the condition that he must marry before the
age of twenty five, or else the money will go to his cousin, the Villain. The Villain induces him to pass his time drinking and
gambling so as to forget the condition. The family lawyer finds the hero on the eve of his twenty fifth birthday and
persuades him to go home. On his way home, the hero meets a beggar girl and out of compassion gives her shelter for
night. The next day the lawyer turns up with a special marriage licence and insists on immediate marriage. The hero
marries the beggar girl.
If one were asked to decide whether the defendant’s play infringes the copyright in the plaintiff’s play, quite a natural
reaction would be, to place emphasis on the basic theme of both the plays, that is, if a marriage does not take place within
a specific time the good person loses everything and the bad person takes everything. This is the common theme of both
the plays.
The existence of common characters cannot also be denied. Both the plays show a cousin as the Villain. In both the plays
the beggar girl happens to take the morsel out of the villain’s mouth at the very last moment. In both the plays the subject-
matter is inherited fortune.
One would thus conclude, that the substance of the play of the plaintiff has been reproduced by the defendant and he is
therefore copying it. A substantial part of the plaintiff’s work has been adopted, not merely adapted, by the defendant. One
would assume that the conclusions hereby made are quite in line with the dicta in R.G. Anand’s case (supra ). The
defendant’s action is no more than an act of piracy where the basic artistry of the plaintiff has been copied.
One would feel secure in this conclusion. One would happily pass appropriate orders of relief by way of injunction. One
would feel confident but one would go thereby utterly wrong in copyright law.
The Calcutta High Court went on to explain the rationale behind the basic copyright law which is, that you can
borrow the idea of another author, but not the expression.
The court raised various questions like why is it that the theme of a play, like the marriage of an heir contingent to a
beggar girl does not create a copyright? Why is it that the plot by itself is usually not the subject-matter of a
copyright? Why is it that identical characters, like a villain cousin and the devising ancestor wishing his legatee to
marry young, do not create copyright? The court then went on to give answers to these questions and observed
that the answer is two-fold.
The first answer is that these characters are common, no doubt, but too common. Therefore, there is no protection given by
the law to the first writer who is not really the first writer at all. The above idea of the risk of a fortune being lost to others,
the other idea, of, say, two persons looking alike, are not the subject of the author’s original literary work. The second
reason for not giving protection in this regard is even more important. 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. Fathers, mothers, revenge, lust, sudden coming into fortune, Count of Monte
Crisco (sic.) themes, beggar girl marrying rich boy, rich girl marrying poor boy, and one thousand such themes, characters
and plots would become the subject-matter of copyright and 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. The law of copyright was intended at granting protection and not intended for
stopping all literary works altogether by its application.
Again the law cannot become this lax. It would pave the way to plagiarism and the labours of the authors would be freely
picked up by unscrupulous persons. They would utilize the fruits or (sic.) originality, not author the work themselves.
Therefore, even if the plot is copied, the person who copies it, be it consciously or unconsciously, 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.
The question is how does one distinguish between a copy of an idea or a plot, which is permitted, and the copy of an
expression of the author, which is protected and which is his or her own? Where does an idea end and expression begin?
These are the questions which are the most difficult to answer or even to explain. The best answer is that there are no final
answers yet, and there is no hope that there will be any final answers ever. These are situations of legal assessment. Just
as there is no mathematical formula for finding out when it is just and convenient to appoint a receiver, similarly, although at
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a more refined level of intellectual operation, there is no final and exact way of determining what is a copy, or what is a copy
of the expression, or what is a copy of the idea, or what is a copy of the idea only. This is why copy has never been
attempted to be defined in any of the copyright Acts.
In 1967 the court had held in Harman Pictures N.V. v. Osborne 24 that one must be careful not to jump to the
conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to
be found in historical, semi-historical and fictional literature relating to the characters in history.
4. Idea-Concept dichotomy in confidential agreements

In the recent past there has been a territorial and temporal expansion of television at a fast pace in India. There
have been numerous instances where an individual has thought of an idea or a plot or a theme to be shown on the
television in the form of a serial, but lacks resources to make it. He, therefore approaches a channel with a
production plan and the intent to sell his idea to the television production house. Instead of a material gain his idea
gets picked up by the television production house on the ground that there is no copyright in an idea, theme or a
plot.
But, the problem arises when the person who had thought of an idea or a plot for the television show
conceptualizes that idea in the form of a concept note and gives it to a T.V. channel to consider the option of
converting the idea into work. The channel instead of buying the idea and compensating the idea giver monetarily
utilizes the idea and produces a programme on the plea that there is no copyright in an idea or a theme.
The idea giver on the other hand pleads that there is a breach of confidence and an infringement of his copyright.
The court has discussed this problem in a number of cases 25 and has concluded that first, there is a distinction
between the law relating to copyright and confidence and second, when idea gets converted into a detailed concept
note copyright law will come into play.
The courts have held that in the modern day, when the small screen has taken over the earlier means of mass
communication like radio, idea/concept/script of a broadcaster has wider potentiality of capitalising revenue and if
that idea/concept or script is not protected then in a given case, a person who has conceived an idea to be
translated into a reality TV show which could be key to its success with the audience then channels with their
enormous resources could always be in a better position to take the idea/theme/concept from any author and then
develop at their own end and the original author of the concept will be left high and dry. In appropriate cases
interlocutory injunction may be issued restraining such breach of confidentiality of the theme, concept or scripts
otherwise it would be catastrophic for the television industry. One has to bear in mind that the laws must ensure
protection to persons who create an idea/concept or theme which is original and reward them for their labour.
(a) Difference between breach of confidence and copyright law
The courts have laid down the following differences between the law relating to confidential agreement and the
copyright law.
1. The law of breach of confidence is a broader right than proprietary right of copyright.
2. There can be no copyright in ideas or information and it is not infringement of copyright to adopt or appropriate
ideas of another or to publish information received from another, provided there is no substantial copying of the
form in which those ideas have, or that information has, been previously embodied. But if the ideas or information
have been acquired by a person under such circumstances that it would be a breach of good faith to publish them
and he has no just case or excuses for doing so, the court may grant injunction against him as it amounts to breach
of confidence.
3 Copyright protects material that has been reduced to permanent form, whereas the general law of confidence
may protect either written or oral confidential communication.
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4. Copyright is good against the world generally while confidence operates against those who receive information or
ideas in confidence.
5. Copyright has a fixed statutory time limit which does not apply to confidential information. In practice application
of confidence ceases when the information or idea becomes public knowledge.
6. The obligation of confidence rests not only on the original recipient, but also on any person who received the
information with knowledge acquired at the time or subsequently that it was originally given in confidence. Copyright
is a negative right of the owner against the whole world.
7. The principles on which the action of breach of confidence can succeed, have been culled out as (i) Plaintiff has
to identify clearly what was the information he was relying on; (ii) Plaintiff has to show that it was handed over in the
circumstances of confidence; (iii) Plaintiff has to show that it was information of the type which could be treated as
confidential; and (iv) Plaintiff has to show that it was used without licence or there was threat to use it. In case of
copyright infringement the owner has to show that the defendant has infringed his copyright.
(b) Protection of novel ideas under copyright law
In Anil Gupta v. Kunal Dasgupta, 26 the plaintiff conceived the idea of producing reality television programme based
on the concept of ‘Swayamvar’ i.e. woman herself selecting a groom from a variety of suitors. This was a novel
concept, which was disclosed by the plaintiff to the defendant under a strict confidential agreement. The plaintiff
sent a concept note to the defendant for the purpose of production of the TV serial. Later, the plaintiff came to know
about the defendant’s plan of launching a reality show, ‘Shubha Vivah’ . Plaintiff filed a suit for copyright violations
of the concept of reality show. 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 protection under the Copyright Act. The court cited with approval Fraser v. Thomas Television [ (1983) All ER
101 ] where the court observed, "I accept that to be capable of protection the idea must be sufficiently developed, so that it
would seem to be a concept which has at least some attentiveness for a television programme and which is capable of
being realized as an actuality.
In Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd. 27 the plaintiff developed a concept note for a serial "
Krishan Kanhaiya " with detailed plots, episodes and a main story line. The plaintiff got the note registered with Film
Writers Association and discussed the concept with the Zee Television Channel. There was no positive response
from Zee, therefore the defendant approached Sony Entertainment television. Zee started broadcasting the serial "
Kanhaiya " based on the concept of the plaintiff.
The court reiterated that the law did not recognize property rights in abstract ideas, nor is an idea protected by
copyright and it becomes copyright work only when the idea is given embodiment in a tangible form. But when the
plaintiff develops an idea into concept notes, character sketches, detailed plot of episodes, they become subject
matter of copyright protection.
The Bombay High Court in Urmi Juvekar v. Global Broadcast News Ltd 28 held, It is often stated that there is no
copyright in ideas. There are two aspects to this statement the first namely, that it is not the concern of copyright
enactments to protect ideas unless and until the ideas have found expression in the form of a work of a category
recognized as deserving of protection. The second aspect is the corollary of the first, that once the ideas have been
expressed in the form of a work, it is the form of expression which is the subject of protection, not the ideas, which
themselves may be freely extracted from the work and absorbed and used by others to produce their own works, so
long as the form of expression of the work is not also taken. In this respect, however, it is to be noted that the form
of expression of a literary work does not mean only the text in which that work is written, it may include the selection
and arrangement in a particular order of incidents, whether factual or fictional.
The same considerations apply to literary works whose principal purpose is to communicate news, and indeed it is
often stated that there is no copyright in news. This is perhaps not an accurate way of applying the general principle
referred to above. The fact that the content of a literary work is news does not prevent that work from being capable
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of protection by copyright. But again, what is protected is the form of expression of that content. The information
itself, as information stripped of its particular form of expression, may be freely used, as with any other literary work.
In the instant case the plaintiff had given shape to her idea by expressing it in a detailed concept note and the
production plan relating to the programme "Work in Progress". This had been substantially reproduced by the
defendant channel, namely CNN IBN in its show titled as "Summer Showdown". For determining whether there was
substantial reproduction or not the court applied the "average viewer test." According to this test, the two works are
not to be compared with hypercritical and meticulous scrutiny but from the standpoint of the observations and
impressions of an average viewer.
(c) An idea converted to a concept is copyrightable: Some issues
The above decided cases have raised a few issues that need further elaboration :
(i) If concept note is protected by copyright then the duration of copyright shall be sixty years from the death
of the author. However, this rule is not followed in these cases as the confidential, novel idea translated to
a concept note is copyrightable but once the show is on television it will get into public domain and again
be called an idea that is not copyrightable and, therefore, not protected. The term for protection is thus
drastically reduced in case of concept notes.
(ii) According to section 16 of the Copyright Act, copyright is a statutory right and the rights and remedies
under the copyright law do not abrogate any right or jurisdiction to restrain a breach of trust or confidence.
The above cases could be successfully tried under only the law of confidence by judiciary without resorting
to the law of copyright and complicating the settled issue that copyright does not vest in an idea but in the
expression of an idea. The learned judges have not even made a passing reference to such a significant
provision, namely section 16.
(iii) The courts have divided the idea into two categories: (a) Idea in public domain which is not copyrightable
and (b) Novel ideas converted into a concept and communicated to television channels under an
agreement of confidentiality which are copyrightable. Novelty is a concept which has been used under
patent law to determine whether an invention is new. The concept of novelty has crept into copyright law by
judicial interpretation and innovation.
5. Merger of idea and expression in games

The Delhi High Court in Mattel Inc. v. Jayant Aggarwalla 29, applied the doctrine of merger and refused to grant
protection to copyright in games. The plaintiff in this case claimed copyright in their word board game marketed as
"SCRABBLES". It was alleged that the defendant produced a web based game similar to that of "SCRABBLES"
using the red, pink, blue and light blue titles, use of identical pattern of arrangement of coloured titles and use of a
star pattern on the central square. The defendant denied the allegations and argued based on the doctrine of
merger that there was no copyright in the alleged elements in the games since they were ideas of playing a game
expressed in the work and both could not be separated.
Accepting this, the court observed that the application of the doctrine of merger would mean that the colour scheme
on such a board can be expressed only in a limited number of ways; if the plaintiffs’ arrangements were to be
avoided, it is not known whether the idea of such a word game could be played at all. This doctrine of merger is
applicable with respect to games as they consist of abstract rules and play ideas. By way of illustration, the
arrangement of colours, values on the board, the collocation of lines, value for individual alphabetical titles etc.,
have no intrinsic meaning, but for the rules. If these rules which form the only method of expressing the underlying
idea are to be subject to copyright, the idea in the game would be given monopoly, a result not intended by the law
makers who only wanted expression of idea to be protected.
6. Actual Events
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The Supreme Court in R.G. Anand’s case 30 held that there is no copyright in an actual event. The Bombay High
Court in Indian Express Newspapers (Bom) Pvt. Ltd . v. Dr. Jagmohan 31 blindly followed this rationale. In this case
Ashwani Sareen, an investigative journalist took upon himself the challenging task of exposing the widespread
prevalence of flesh trade in the State of Madhya Pradesh. For the sake of conducting research and writing articles
he made himself a participant in the flesh trade and bought a woman by the name of Kamla from village Shivpuri in
Madhya Pradesh for Rs.2,300/-. Well-known playwright Vijay Tendulkar wrote a play first and then a story about it
for a film. The journalist and the newspaper proprietors filed a suit against the playwright and the film producer
complaining that the film was an infringement of their copyright in the newspaper stories. The court held:
There is a distinction between the materials upon which one claiming copyright has worked and the product of the
application of his skill, judgment, labour and literary talent to these materials. Ideas, information, natural phenomena and
events on which an author expends his skill, labour, capital, judgment and literary talent are common property and are not
the subject of copyright. The form, manner or arrangement of a drama and movie are materially different from a newspaper
article and by very nature of the media there is fundamental and substantial dissimilarity in the mode of expression of the
idea in a newspaper article and in a stage play or in a movie. Prima facie, therefore, the claim in respect of infringement of
copyright appears to be misconceived.
It may be noted that in this case the film producer did not merely take ideas from the writings of Sareen but he
made a cinematograph film on the very autobiographical account of the journalist retaining even the name of the
principal character Kamla. 32 Moreover, a plain reading of section 17 proviso (a) of the Copyright Act, 1957 shows
that the right to make a cinematograph film from the work vests with the author. In this case the film producer has
enriched himself at the cost of the labour, skill and intellect of the journalist without paying him his due. It is
submitted that the reporting of current events is different from stories dug out by the journalists after continuous
investigation by intellect and creativity and therefore, need to be distinguished from actual events, in which there is
no copyright. This was not simply information in public domain or news simpliciter but a course of biographical
events resulting in a real non-fiction story that has to be protected under copyright law.
7. Literary Work
(a) Definition
The Copyright Act, 1957 does not define "literary work" except to state 33 that, "it includes computer programmes,
tables and compilations including computer data bases." The "computer" and "computer programmes" are defined
in sections 2 (ffb) and 2 (ffc) respectively but "Computer database" is not defined by the Copyright Act. However, a
definition of computer database is given in the Information Technology Act, 2000.
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. 34 Both kinds of works have
to be original according to section 14 (a).
The Berne Convention 35 gives a collective definition of the expression "literary and artistic work" as:
It shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form or its
expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same
nature; 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.
Both the Berne Convention and the Copyright Act, 1957 give an inclusive definition of the expression "literary work"
without actually giving the meaning to the word "literary" and "work". The dictionary 36 meaning of the word "literary"
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is, "well versed in or connected with literature". However, the judiciary has given a very wide meaning to the
expression "literary".
According to Peterson, J. in University of London Press v. University Tutorial Press : 37 any work which is expressed
in print or writing irrespective of the question whether the quality or style is high is literary work.
The courts in India have also adopted this view and thereby held that 38 the literary merit or quality is not a pre-
requisite for a work to be a literary work under the Copyright Act, 1957.
(b) Literary Merit
A wide definition of literary work encouraged the courts to include mundane compilations of information such as
time tables, indices, 39 examination papers, 40 directories, 41 football fixture lists, 42panchang (almanac), 43
applications, 44 contract forms, 45 mathematical tables, 46 guide books, 47 telegraph codes, 48 railway time tables, 49
and tambola tickets 50 under the expression "literary work".
In Fateh Singh Mehta v O.P. Singhal 51 the Rajasthan High Court held that ‘literary work’ includes "dissertation"
submitted by a student. In Satsang v. Kiran Chandra Mukhopadhyay, 52 the Calcutta High Court held that writings,
sermons and sayings of a religious preacher fall within the definition of "literary work". In Sulmanglam R.
Jayalakshmi v. Meta Musical, 53 the lyrics written by a swami were held to be "literary work".
(c) Quantum of Work
It is evident from the decided cases that the quantum of the words and not the quality has played heavily in the
minds of the judges. The Delhi High Court in Pepsico Inc. v. Hindustan Coca Cola 54 held that the advertising
slogans like "Yeh Dil Mange More" are not protectable under the Copyright Act. However, the Copyright Board
misread the judgment and ordered that slogans were copyrightable in Enercon Systems Pvt. Ltd. v. Registrar of
Copyright 55 and Kamdhenu Ispat Ltd. v. Registrar of Copyright 56.
In Jindal India Pvt. Ltd. v. Diamond Plastics Products 57 it was held that there can be no copyright in a word or
words but the right can only be in the artistic manner in which the same is written and accordingly the mere use of
the word "JINDAL" by the respondents in his label cannot by any test constitute the infringement of the artistic work
of the petitioner who was a registered proprietor of the mark "JINDAL".
In King Features Syndicate Inc. v. Sunil Agnihotri, 58 the plaintiff was an owner of the world-renowned comic strip-
PHANTOM. He alleged to be the owner of its Hindi equivalent- BETAAL. The defendants had proposed to launch a
teleserial titled BETAAL. The court held that the defendant was only inspired by the idea/title but his expression was
original. Since there is no copyright in an idea or title there is no infringement of copyright by the defendants.
In Rose v. Information Services Ltd. 59 the court showed reluctance in granting protection to the name/title of a diary
namely, "The Lawyers Diary".
In Exxon Corporation v. Exxon Insurance Consultants International Ltd . 60 the court refused to grant protection to
the word ‘ Exxon ’ under the U.K. Copyright Act of 1988 on the ground that the title cannot be a literary work as it
does not offer "information, instruction or pleasure in the form of literary enjoyment." In Du Boulay v. Du Boulay, 61
the Privy Council had held that "a person does not have an absolute right to a particular name".
In Green v. Broadcasting Corporation of N.Z. 62 the court held that various catch phrases used in the television
programme, "Opportunity Knocks" were neither dramatic nor literary work under copyright law, therefore, any
copying of these features did not constitute infringement of copyright. However, the protection for such words can
be obtained independently of copyright through the law of tort or common law remedy of passing off.
(d) Secondary or derivative works

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Derivative works are those which are based on existing works, such as translations, adaptations, compilations,
guide books and new editions. Whilst an original prior work is protected under copyright law, a secondary or
derivative work does not enjoy the same protection unless :
(i) The labour is of the right kind
(ii) The effort must bring about a material change in the work.
(iii) The change must be of the right kind.
(iv) The raw material i.e. the prior work used shall be different from the end product i.e. the secondary work
produced.
(v) Sweat of the brow test is applicable in most of the cases. In compilation of copy-edited judgments,
however, minimum of creativity test is applicable
(i) Adaptations and abridgement. According to Article 2 (3) of the Berne Convention, translations, adaptations and
other alterations of a literary work shall be protected as original work without prejudice to the copyright in original
work. The Indian Copyright Act, 1957 does not have a similar provision but since India is a party to the Berne
Convention it follows the principles enunciated in the convention.
‘Adaptation’ according to section 2 (a) of the Copyright Act, 1957 is :

(i) in relation to dramatic work the conversion of a work into a non-dramatic work;
(ii) in relation to literary work or artistic work, the conversion of the work into a dramatic work by way of
performance in public or otherwise;
(iii) in relation to 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 musical work, any arrangement or transcription of the work; and
(v) in relation to any work any use of such work involving its re-arrangement or alteration.
Example : X writes a novel in English in which he has a copyright. X assigns his right of making an adaptation to Y
who, converts the work of X into a drama to be performed in a theatre. Y has a copyright in the drama as original
dramatic work but copyright in the novel to make a cinematograph film or sound recording or translation etc.
remains with X.
Abridgement is an adaptation of literary work, according to section 2 (a)(iii) of the Copyright Act, 1957. Abridgement
is created when an existing work is condensed by another in a manner that the precise import of the work is
preserved yet an original work is created. Lord Atkinson in Macmillan & Co. v. Cooper 63 held:
To constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning.
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. The reduction of the size of the work by copying some of its parts and omitting others confers no title to
the 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 mere copying. To copy certain passages and omit others so as to reduce the volume in bulk is not
such an abridgment as the court would recognize as sufficiently to protect the author.
In this case, the book, Plutarch’s Life of Alexander the Great, was reduced from 40,000 lines to 20,000 by deleting
certain passages. The Privy Council held that it was not an original work because it had failed to exhibit
individuality. The judgment went on to state that the effort applied to an existing work must bring about a change so
that ’some quality or character’ is present in the finished product which was not present in the raw materials.
(ii) Translation. The word translation is not defined in the Act. According to Black’s Law Dictionary, ‘translation’
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means the reproduction in one language of a book, document or speech in another language. According to the
Shorter Oxford Dictionary, "translate" means, "to interpret, explain, also to express one thing in terms of another."
The right to translate vests with the author of the work. The translation of a literary work is itself a literary work and
is entitled to copyright protection. 64
Example : Z after taking permission from X translates the novel of X written in English to Hindi. Z has copyright in
the Hindi version of the novel whereas, copyright in the novel in English continues with X.
In Apple Computer Inc. v. Computer Edge 65 the court held that translation includes conversion of source code in a
computer programme written in hand to object code or machine language. Therefore, the copyright in source code
would vest with one person whereas the copyright in object code would vest with the translator.
(iii) Compilations and collective work. In a collective work, the copyright subsists in the individual items of the
collection as well as in the collection itself. A compilation on the other hand is a work in which copyright subsists in
a compilation of facts or information which are themselves not copyrightable, for example, a catalogue of detailed
items sold by a trader. 66 According to the Berne Convention, the collections of literary or artistic works such as
encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute
intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part
of such collections. 67 The Indian Copyright Act does not specifically deal with compilations but judiciary has
followed the definition laid down in the Berne Convention and treated compilation and collective work as original
literary work. The Privy Council in Macmillan & Co. v. Cooper 68 while approving the decisions of Supreme Court of
U.S. in Emerson v. Davies (1845) held:
It is necessary that to secure copyright for a product compilation, labour, skill and capital should be expended sufficiently to
impart to the product some quality or character which the raw material did not possess and which differentiates the product
from the raw material. However, what is the precise amount of the knowledge, labour judgment or literary skill or taste
which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it
cannot be defined in precise terms. It must depend largely upon the special facts of each case and it is very much a
question of degree.
Hall, V.C. in Hogg v. Scott 69 stated that:
the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the
plaintiff has been at for the purpose of producing his work; that is, infact, merely to take away the result of another man’s
labour or, in other words his property.
Sir Arthur Wilson in Macmillan v. Suresh Chander Deb 70 pointed out that the above stated principle applies to
maps, guide books, street directories, dictionaries and to compilations of scientific work and other subjects,
selection of poems etc.
Lord Eldon in Longman v. Winchester, 71 and Lord Hatherley in Spiers v. Brown 72 held:
In a work consisting of selection from various authors, two men might perhaps make the same selection, but that must be
by resorting to the original authors, not by taking advantage of the selection already made by another.
The Calcutta High Court in Jagdish Chand v. Mohim Chandra 73 held that the reporter has copyright in the selection
and arrangement of the judgments but not in the reports of the judgments.
(iv) Copy-edited judgments. The Supreme Court in Eastern Book Co. v. D.B. Modak 74 held that mere selection is
not sufficient, a modicum of creativity is necessary to transform mere selection into copyrightable protection in the
case of copy-edited judgments. In other words "minimum of creativity" test is applicable and not the "sweat of the
brow" test as in the case of reporting or compilation of judgments. In the instant case the SCC and SCC- Online
were aggrieved by individuals who launched a software package entitled "The Laws" and "Jurix". The plaintiff
alleged that they infringed the copyright of the copy-edited judgments published by SCC.
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The court held that it is the admitted position that the reports in the Supreme Court Cases (SCC) of the judgments
of the Supreme Court is a derivative work in public domain. By virtue of section 52 (1) of the Act, it is expressly
provided that certain acts enumerated therein shall not constitute an infringement of copyright. Sub-clause (iv) of
clause (q) of section 52 (1) excludes the reproduction or publication of any judgment or order of a court, tribunal or
other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court,
the tribunal or other judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the
public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-
edited judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the
inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely
excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author’s work.
The principle where there is common source the person relying on it must prove that he actually went to the
common source from where he borrowed the material, employing his own skill, labour and brain and he did not
copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court,
unless so made by the court itself. To secure a copyright for the judgments delivered by the court, it is necessary
that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in
SCC some quality or character which the original judgment does not possess and which differentiates the original
judgment from the printed one.
The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing
to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill,
labour and investment of capital, may be it is a derivative work which gives a flavour of creativity. The copyright
work which comes into being should be original in the sense that by virtue of selection, co-ordination or
arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the
author.
The court observed:
On the face of the provisions of the Indian Copyright Act, 1957, we think that the principle laid down by the Canadian
Supreme Court in the matter of CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada Court)
would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be
confined to the judgments of the courts which are in the public domain as by virtue of section 52 of the Act there is no
copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material
with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non- obvious, but at the
same time it is not a product of merely labour and capital. The derivative work produced by the author must have some
distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in
the judgment would not satisfy the test of copyright of an author.
(e) Database s
Databases were included in the definition of "literary work" in section 2 1999. The Copyright Act does not define
databases. The Information Technology Act, 2000 defines 75 the database:
as a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being
prepared or have been prepared in a formalized manner and have been produced by a computer, computer system or
computer network and are intended for use in a computer, computer system or computer network.
Prior to the amendment of 1999 the Delhi High Court had an occasion to deal with databases in Burlington Home
Shopping Private Ltd. v. Rajnish Chibber. 76 In this case the plaintiff, a mail order service developed a compilation of
list of customers database over a period of three years. Rajneesh, a previous employee of Burlington managed to
get a copy of the plaintiff’s database.
On comparison of the data made available by the plaintiff with the data available on the floppies seized from the
custody of the defendant it was found that a substantial number of entries were comparable word by word, line by
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line and even space by space. In some of the entries the notations of commas and full stops (punctuation marks)
were comparable. In a good number of entries spelling mistakes occurring in the plaintiff’s data were to be found in
the data compilation of the defendant as well. These provided an intrinsic, irrefutable circumstantial evidence of
defendant having indulged into slavish imitation of plaintiff’s compilation making out a clear case of infringing of
copyright as the compilation of list of clients/customers developed by a person by devoting time, money, labour and
skill amounts to a literary work wherein the author has a copyright. The court held that if the defendant was
permitted to make use of plaintiff’s database it was sure to cause an injury to the plaintiff, which would be incapable
of being estimated in terms of money. The balance of convenience was also on the side of the plaintiff. The court
focused on the question whether there was infringement by the defendant or not. It did not deal with the basic
question of the requirement of originality for the purpose of extending copyright protection to compilation as literary
work. The court made reference to many foreign judgments but did not take cognizance of the Feist Publication Inc.
v. Rural Telephone Services. 77
The US Court in Feist’s case had held that facts might not be copyrighted because they are not created. Rather,
they are discovered. All facts, whether scientific, historical, biographical, or news of the day, are part of the public
domain and may not be appropriated by any individual through copyright. Factual compilations may possess the
requisite originality. The compilation author typically, chooses the facts to include, in what order to place them, and
how to arrange the collected data so that the reader may use them effectively. 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 to be protected through copyright.
The facts of the case were that Rural Telephone Service (Rural), a publicly regulated telephone company was
required by law to issue annually a telephone directory consisting of white and yellow pages. The white pages listed
in alphabetical order the names, towns and telephone numbers of Rural’s phone service subscribers. Rural
obtained this information easily when subscribers signed up for telephone service. The court observed that the
selection and arrangement in the Rural’s directory was entirely typical and obvious as the most basic information
was arranged alphabetically by surnames. The end product was a garden variety white pages directory lacking the
modicum of creativity necessary for copyright protection. The court very emphatically stated that copyright law
rewards "originality" and not the "effort".
Feist led the way to several decisions dealing with conditions under which courts will or will not extend copyright
protection to providers of factual information. Most of these cases involving the copyright of factual compilations
granted copyright protection to the compiler.
In 1996, the WIPO had adopted two treaties namely WCT and WPPT to deal with certain copyright issues raised by
new technologies. Article 5 of WCT specifies that the copyright laws in member countries must protect compilation
of data, but not the data itself. This conforms to United States law as given in Feist Publications Inc. v Rural
Telephone Service . 78
At first glance, these decisions seem to benefit the public by allowing access to large compilations of information
while affording protection and incentive for compilers of information. But it must be emphasized that the
government’s role is to balance this right of access to the information with an incentive for information providers to
continue to produce.
In 1996 the European Union passed a Directive, 79 which gave protection to selection and arrangement of the data
and not to the contents. The maker of the database however, has a right to prevent the unauthorized extraction or
re-utilisation from the database, of its contents, in whole or substantial part, for commercial purposes. Therefore the
directive allows the maker of database to have copyright on facts for commercial purposes and safeguards the
financial and professional investments incurred in collecting data.
As per the Council Directive, full copyright protection will now only be given to those databases (compilations)
which, by virtue of their selection and arrangement of the contents, constitute the author’s own "intellectual
creation". A compilation, which does not meet the originality criteria for copyright protection, can now be protected
by a new sui generis right called Database Right. Any database may qualify for database right as long as a
substantial investment has been made in the obtaining, verification and preparation of their contents by the
database maker. Database right has a basic term of protection against unfair extraction and re-utilization of the
contents, and expires 15 years after the end of the calendar year in which it was made.
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(f) Computer Programmes
In India, computer programmes were included in literary work 80 in 1994. TRIPS 1994 by virtue of Article 10 (1)
states: "Computer Programmes, whether in source or object code, shall be protected as literary works under the
Berne Convention (1971)". WCT, 1996 in Article 4 states: "Computer Programmes are protected as literary works
within the meaning of Article 2 of the Berne Convention". Such protection applies to computer programmes,
whatever may be the mode or form of their expression.
TRIPS and WCT do not define the term computer programmes. However, Computer and Computer Programme are
defined under the Copyright Act, 1957: "Computer" includes any electronic or similar device having information
processing capabilities, 81 and "Computer Programme" means 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. 82
Any computer program goes through a series of evolutionary steps from preliminary conception to detailed and
complex expression. Programme is made in the source code in high level language like Fortran or Cobol. Computer
converts this into operational terms of object code. There are two types of computer programmes: 1) application
programmes and 2) system software. 83 Application programmes such as Wordstar and Visicalc, interact directly
with a human to serve his particular needs. By contrast, systems software like Apple-DOS or PC-DOS does not
satisfy a particular user need, but makes the computer hardware functional and enables it to run application
programmes. 84
When the computer industry was in its infancy in the mid-1960s, there was tremendous uncertainty about whether
computer programs could be protected under the copyright laws or patent law. On one hand, such programs,
especially when written in high-level source code, have all the earmarks of a creative literary-style document. On
the other, computer programs are an integral part of an operational machine-just the type of thing excluded from the
reaches of copyright. 85 In 1976, United States Congress substantially revised the Copyright Act after an almost 20-
year process of debating the parameters of change. Although Congress was aware of various problems that new
technologies such as computers posed to copyright policy, it recognized that it would not be able to adequately
address them in the pending legislative effort. Therefore, it created the National Commission on New Technological
Uses of Copyrighted Works (CONTU) to make recommendations about changes to copyright policy that might be
required in order to accommodate new technological developments.
In 1978, after almost three years of deliberations, CONTU released its final report. CONTU’s most definitive
recommendation was that copyright protection should be available to computer programs. It stated:
The cost of developing computer programs is far greater than the cost of their duplication. Consequently, computer
programsare likely to be disseminated only if [t] he creator can spread its costs over multiple copies of the work with some
form of protection against unauthorized duplication of the workthe Commission is therefore satisfied that some form of
protection is necessary to encourage the creation and broad distribution of computer programs in a competitive
market,[and] that the continued availability of copyright protection for computer programs is desirable.
The final report made it clear that, consistent with copyright principles in traditional contexts, protection should be
offered only to the expression of computer programs. However, the report was ambiguous about what aspects of
the programs should be considered expression. Likewise, when Congress adopted this recommendation in 1980 by
amending the Copyright Act, it failed to reveal its intentions about the limits of copyright protection for computer
programs. Thus, the 1980 revisions made it clear that programs were to be protected by copyright but left it to the
courts to determine the appropriate parameters for protection."
In United Kingdom, the CDPA, 1988 treats computer programmes as "literary works". In 1991, the European Union
Council adopted a comprehensive directive for EU nations. With some exceptions, the guiding principles of this
directive are very similar to those applied in US.
(g) Lecture
A very pertinent question under this heading is whether a person delivering a lecture is an author of a literary work
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or a performer? If former, then he gets a longer protection for his lecture under the law of copyright than in the latter
case.
The dictionary meaning of the word " lecture" is a "prepared disquisition made to an audience, class etc. designed
to instruct or explain at some length."
The Berne Convention in Article 2 (3) states: "It shall, however, be matter for legislation in the countries of the
Union to prescribe that works in general or any specified categories of work shall not be protected unless they have
been fixed in some material form".
In the US, copyright protection subsists only in works of authorship fixed in any tangible medium of expression, now
known or later developed from which they can be perceived, reproduced or otherwise communicated directly or with
the aid of machine or device. 86
In UK, the Copyright, Designs and Patents Act, 1988 makes fixation an essential requirement for a work to be
called a literary work. 87
In India the position is very ambiguous. This ambiguity is evident from the scheme of the Act given under sections
2, 14 and 17. Section 2 (qq) treats a person delivering a lecture as a "performer" whereas section 17 proviso (cc)
provides that a person delivering the lecture in public holds a copyright in his literary work and is thus an "author". It
can thus be concluded that when a lecture is delivered in public the copyright subsists according to section 17
proviso (cc), but when a lecture is delivered to a private audience then the Act is silent.
Further, the inclusive definition of literary work [section 2 (o)] is silent about lectures but the reproduction right under
section 14 (a)(i) is applicable when a work is produced in a material form thus making requirement of fixation as
mandatory. From the above scheme following conclusions can perhaps be made:
(i) If A delivers a lecture to a private audience then A is a performer under section 2 (qq) as section 17 proviso
(cc) has deliberately omitted private lectures. A does not have a copyright but has performers right in his
performance by virtue of section 38. Now if B, a part of audience publishes the lecture of A then A cannot
file a suit for infringement of his copyright. A, however, can use his right to restrain a breach of trust or
confidence against B as there is a trust between the speaker and the audience that the audience will not
make use of the lecture for any purpose other than the one for which it is delivered. 88 If B makes a sound
recording or visual recording of A’s lecture for commercial gain without his authorization then, A can file a
suit for infringement of his performers right under section 38A or for breach of confidence under section 16.
(ii) A reads a paper to an audience. A has a copyright in the paper, it being a literary work and performer’s
right in the performance as delivery of lecture is a performance.
(iii) A delivers a lecture to a private audience using his scribbled notes. A has copyright in his notes and
performers rights in his performance.
8. DRAMATIC WORK
According to section 2 (h) of the Copyright Act, 1957, "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 cinematograph film. 89 Throughout the Act the relevant provisions dealing
with the rights, infringement or acts not amounting to infringement the words "literary" and "dramatic" are used
together whether under the concept of rights, infringement or fair dealing etc. Therefore the principles applicable to
literary work will also be applicable to dramatic work. Cinematograph films are not included under dramatic work as
they form a separate category of work.
"Choreography" is the art of arranging or designing a ballet or stage dance in symbolic language. There are various
systems used for this purpose: the shorthand notations of Benesch, the longer, more academic and elaborate
Laban System etc., 90 or even a choreographer’s personal notes in his own invented system. The requirement of
fixation has been specifically provided for recitation, choreographic work, dumb show, scenic arrangement or
acting. If these works are not "fixed" then they will be treated as merely performance having lesser duration of
protection under section 38.
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9. MUSICAL WORK
According to WIPO, a work, whether serious or light; songs, choruses, operas, musicals, operettas, if for
instructions, whether for one instrument (solo), a few instruments (sonata, chamber music etc.) or many (bands,
orchestras); are included within musical work. 91
In India, the author in relation to a "musical work" is the composer according to section 2 (d)(ii). Under section 2
(ffa) the composer in relation to musical work means the person who composes the music regardless of whether he
records it on any form of graphical notation. The author of the words of the song is the lyricist.
Example : If Lata sings a song with music orchestra on a stage and Aishwarya dances on the song. Then, words of
a song is a "literary work" where lyricist has a copyright; 92 Music is the "musical work" where composer has the
copyright; Lata, Aishwarya and all players of the musical instruments are the performers who have a right in their
performances. In practice the show is staged and produced by an event manager in whom all rights are assigned
by the author, composer and performers. 93
The definition of "Musical work" under section 2 (p) of the Copyright Act, 1957 was amended in 1994 to mean:
a work consisting of music and includes any graphical notation of such work but does not include any works or any action
intended to be sung, spoken or performed with the music.
The new definition had omitted the words, "printed, reduced to writing or otherwise graphically produced or
reproduced". The amendment to the definition of "musical work" was intended to protect Indian classical music.
According to the un-amended definition, fixation of music was essential before it could be protected. There are a
numbers of examples from the Indian classical music and the music industry wherein it can be shown that the
composer of music and performer of music are the same person, such a person improvises within the framework of
a highly developed discipline on a pre-selected traditional theme without fixation of his composition on a piece of
paper. The amendment was brought in 1994 to protect such Indian classical music and even folklore, which
descends from generations without fixations and without anyone claiming a right over the music.
Western classical music is created by composers who conventionally record the composition in writing on a paper
using an elaborate well established system of musical notations. Performers who can read the notations then
perform the music. This composer-performer dichotomy which is so usual under the western classical music is
absent in case of Indian classical music and folk lore.
In India, music is an integral part of Indians, which fall broadly under three categories: classical music, traditional or
folk music and Hindi film music. A new trend of ‘remixes’ has emerged in music industry in last few years. Remix is
a song where music of the yesteryears is marketed with contemporary beats. 94 However, there was a lot of
criticism from the original composers like Naushad etc. as according to them their music was ‘distorted’ by the new
generation of musicians. They argued that conversion of the soft old Hindi film music into loud beats is plagiarism.
But, "plagiarism" is not the same as "copyright infringement" provided by the Copyright Act, 1957. It has been
successfully argued that remixes can be covered by the term "adaptation" which attracts its own copyright.
"Adaptation of musical work" is protected under section 14 (a)(vi). Adaptation in relation to musical work is "any
arrangement or transcription of the work" (section 2 (a)(iv)). Transcription means ‘arrangement of a musical
composition for some instrument or voice other than the original.’ In most cases of remixes the subsequent
company borrowed songs from the original music company on payment of royalty. The result was that the music
composers who had assigned their rights in the original music company did not get any share from the sale of remix
song. This resulted in an unfair treatment of original music composers. This position has, however, been changed
by introduction of section 31C and deletion of section 52 (1) (j).
Section 52 (1)(j) prior to the amendment of 2012 permitted any song older than two years to be used for "version
recording" if a notice of intent was given to the copyright holders, composers and lyricists, along with 5% royalty
and an advance.
The industry players and the Indian Music Industry (IMI) pushed for the deletion of section 52 (1) (j) as companies
producing cover versions and remix music paid only a nominal amount to the music companies owning the
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copyright. However no royalty was received for subsequent album sales. According to IMI, at a minimum, the
version recording should be permitted after a period of ten years while the royalty should be increased to 15% as
the music company promoting the cover version of a successful album incurs no significant production costs. 95
The amendment of 2012 deleted section 52 (1) (j) and inserted section 31C providing for grant of statutory licence
for cover versions. The amendment has made production of cover version more difficult. Time period after which a
cover version can be made has increased from 2 years to 5 years. The statutory requirement is that all cover
versions must state that they are cover versions. No alterations are allowed from the original song, and alteration is
qualified as "alteration in the literary or musical work". So no imaginative covers in which the lyrics are changed or
in which the music is reworked are allowed without thecopyrightowners’ permission. Only note-for-note and word-
for-word covers are allowed.
Alterations were previously allowed if they were "reasonably necessary for the adaptation of the work" now they are
only allowed if it is "technically necessary for the purpose of making of the sound recording". While earlier it was
prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now
cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound
recording of the same work or any cinematograph film in which such sound recording was incorporated". There is
also a requirement that a cover version can be released only in the same medium as the original. So if the original
is on a cassette, the cover cannot be released on a CD. Payment has to be made in advance, and for a minimum of
50,000 copies. This can be lowered bythe Copyrightboard having regard to unpopular dialects.
10. ARTISTIC WORK

WIPO guide observes : "the category of visual arts covers virtually all artistic works whether in two dimensions
(drawings, engravings etc.) or in three (sculptures, statues etc.) independent of their nature (figurative or abstract)
and their intention (pure or commercial art)." 96
According to section 2 (c) of the Copyright Act, 1957, 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]; 97 and
(iii) any other work of artistic craftsmanship;
(a) Painting, Sculpture, Drawing, Engraving
Section 2 (i) defines engravings to include etchings, lithographs, wood-cuts, prints and other similar works not
being photographs. Section 2 (s) defines a photograph to include photo-lithograph and any work produced by any
process analogous to photography but does not include any part of a cinematograph film.
The word drawing is not defined in the Act except that drawing of any kind whether or not it possesses any artistic
quality would be covered by the term "artistic work". This means that even mechanical or engineering drawings are
"artistic work" entitled to copyright protection.
It may be noted that in respect of painting, sculpture, drawing, engraving or a photograph the work need not have
an artistic quality i.e. it is not required to meet any aesthetic standard. The only important factor is that it is original
work of putative author and not a copy of any other work. Since Indian judgments are not available, reliance can be
made on a number of foreign decisions 98 with respect to work which is protected by copyright irrespective of artistic
quality. For example, simple drawing of human hand showing voters where to mark their cross on a voting card; 99
the label design for a sweet tin; 100 the arrangement of a few decorative lines on a parcel label 101 have all been held
to be artistic work. House of Lords in Interlego v. Tyco Industries Inc. 102 while laying down the list of originality held
that "the new drawing may have been the result of skill, labour and judgment but that was not sufficient where the
skill and judgment lay merely in the process of copying." In this case a ten-year-old child drew a convincing
imitation of the Mona Lisa of Leonardo da Vinci. Dworkin and Taylor, 103 while criticizing the judgment observed:
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It would seem harsh to conclude that result is not an original artistic work because the skill, labour and judgment lay merely
in copying Da Vinci’s work. It would also seem harsh to deny the ten-year-old (or the adult) the right to stop others
exploiting his or her version of the Mona Lisa. Such a case seems indistinguishable in principle from the shorthand writer’s
copyright in his report of someone else’s speech. It may be that the requirement of originality needs to be interpreted
differently for different subspecies of artistic works. Copies of works that can be easily and fairly mechanically produced
should not count as original but where the copy requires a good deal of skill or a artistic talent, it should perhaps count as
an artistic work in its own right.
In Associated Publishers v. Bashyam 104 the defendant made a portrait of Mahatma Gandhi based on two
photographs. The Madras High Court held that it was copyrightable as portrait was different from the photographs.
The judgment appears to be quite contradictory to US Court’s decision in Interelego v. Tyco .
The fundamental principles applicable for literary work should also be applicable to dramatic, musical and artistic
works. In all these categories the derivatives are also held to be ‘original’ if the author has applied sufficient labour
and skill. In each case it is a question of fact and degree. Derivative drawings are not to be dissected into what was
original and what had been reproduced from previous drawings, but to be considered as a whole. The application of
the above stated principles show that the Interelego’s case is not rightly decided.
In Harrington Construction and Finance Ltd. v. Eicher Good Earth Ltd. 105 it was held that an artistic work must be
original to qualify protection under the Act. It was held that Rookie or Chess coin made by mechanical process
cannot be termed as a work of sculpture.
A very interesting question came up for consideration in Merchandising Corporation of America v. Harpbond. 106
The court in this case held that a painting is a product of the art of representing or depicting by colours on a surface.
The court did not consider the face as a surface and therefore held that facial make-up as such, however,
idiosyncratic it may be as an idea, cannot possibly be a painting for the purpose of the Copyright Act.
The Bombay High Court in Pidilite Industries Ltd. v. S.M. Associates and Others 107 held that:
It is well established now that while deciding the question of infringement of copyright it is not necessary that the
defendant’s work must be an exact reproduction of the plaintiff’s work. What is essential is to see whether there is
reproduction of the substantial part of plaintiff’s work.
This was a case of deceptive similarity between the cartons of plaintiff and defendant. It was found that the entire
features of the artistic works and colour schemes on front part of plaintiff’s cartons were seen on defendant’s except
for the word PIDILITE, the word NEW and for the label M-Seal, the mark SM-Seal were used.
One piece of work may depict different kinds of subject matter under copyright law. For example, a poster for
advertising a product can have following parts:
(1) A word, sign or a slogan registered as "trade mark" under the trade mark law.
(2) The painting on the container of the product showing the get up and colour scheme and few persons using
the product is an "artistic work" under copyright law.
(3) Written matter explaining about the uses and functions of the product are "literary work" under copyright
law.
Section 15 of the Copyright Act, 1957, is a special provision whereby it is stated that copyright shall not subsist in
an industrial design, which is registered or capable of registration under the Designs Act, 2000. 108 The artistic work
under copyright law is different from the one under Industrial Designs Act, 2000.
(b) Work of Architecture
Work of architecture according to section 2 (b) of the Copyright Act, 1957 means "any building or structure having
an artistic character or design or any model for such building or structure." A number of steps are involved in
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creating a work of architecture. An architect designs and supervises the construction of a building. The first step is
the making of a plan, which is treated as "drawing" or an "artistic work", that is a, protectable subject matter under
section 2 (c) of the Copyright Act. Some process or method of construction is then employed in order to erect a
structure on the basis of the plan. Section 13 (5) clarifies that the process or method of construction does not form
protectable subject matter. The structure or the building does not form protectable subject matter unless it has an
artistic character or design that is, has some aesthetic value. 109
(c) Work of Artistic Craftsmanship
The phrase artistic craftsmanship expressly refers to the quality of being artistic. There are two essential ingredients
of this sub-clause. First, the work has to be of a craftsman and secondly it has to be of artistic value. The problem
with the understanding of the phrase was highlighted in George Hensher Ltd. v. Restawile Upholstery (Lanco) Ltd.
110 where five different Law Lords took five different approaches. But all the Lords concurred in the conclusion that a
flimsy prototype of a mass-market upholstered chair did not qualify as a work of artistic craftsmanship even if it
could be regarded as a work of craftsmanship in the first place. No complete consensus emerged from the case
even on such basic points as whether only hand-made items qualify or whether the question is one of law or fact.
11. CINEMATOGRAPH FILM

"Cinematograph film" according to section 2 (f) of the Copyright Act, 1957, as amended by the amendment of 2012,
means any work of visual recording including any work produced by any process analogous to cinematography
including video films. The protection is extended to the sound recording accompanying such visual recording. 111
The dictionary meaning of cinematograph film is "a camera for producing motion pictures so construed that a large
number of separate exposures of frames are made in very rapid succession It is also called kinetograph ." 112
Copyright subsists in a film if it is made by an Indian citizen. If it is not made by Indian citizen then, it should have
been first published in India. Foreign films also get protection in India if they fulfill the following conditions:
(a) If the film is unpublished, then it should have been made by a citizen of a Berne Convention country. 113
(b) The film is made or published by a corporation incorporated in a convention country. or
(c) The film is first made or published in the convention country.
The owner of a copyright in the film, i.e. the producer, 114 has a bundle of rights in his film. Cinematograph films are
available in video cassettes and "optical discs" which includes: Video Compact Disc (VCD), Digital Versatile Disc
(DVD) and Laser Disc (LD).
Copyright does not subsist in any cinematograph film, if a substantial part of the film is an infringement of the
copyright in any other work. The copyright in a cinematograph film does not affect the separate copyright in any
work in respect of which or a substantial part of which the film is made. 115
Copyright protection in the film includes the sound track. 116 The copyright in the entire film may cover portions of
the film in the sense that the owner of the copyright in the film will be entitled to the right in portions of the film; but
this idea or concept cannot be extended to encompass an idea that there would be one owner of the
cinematograph film and different owners of portions thereof in the sense of performers who have collectively played
roles in the motion picture. 117 This has been very well explained by Krishna Iyer, J. thus: 118
Cinematograph is a felicitous blend, a beautiful totality, a constellation of stars. Cinema is more than long strips of celluloid,
more than miracles in photography, more than song, dance and dialogue and, indeed, more than dramatic story, exciting
plot, gripping situations and marvelous acting. But it is that ensemble which is the finished product of orchestrated
performance by each of the several participants, although the components may, sometimes, in themselves be elegant
entities. Copyright in a cinema film exists in law, but S. 13 (4) of the Act preserves the separate survival, in its individuality,
of a copyright enjoyed by the ‘work’ notwithstanding its confluence in the film.
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The making of a film involves performance by various actors, dancers etc. Once such performers consented to the
incorporation of their performance in a film, they lost their performer’s rights in their performance prior to the 2012
amendment. 119 The amendment of 2012 has deleted section 38 and introduced a new section 38A that has brought
changes for the rights of audio visual performers. 120
Article 2 (1) of the Berne Convention assimilates "works expressed by process analogous to cinematography"
under "cinematographic works". It includes films or videotaped fixations of traditional dramatic works such as plays,
comedies, documentary films, cartoons, regardless of the technical process employed. 121 According to Bogsch. 122
silent or sound motion pictures shall be protected irrespective of their destination (theatrical exhibition, television broad
casting, exhibition for a restricted group of spectators), person of their producers (producers of commercial films, amateurs,
broadcasting organizations producing kinescopes), their genre (film dramas, documentaries, news-reel, etc.), length, mode
of realization (filming of nature, cartoons) or technical process used (picture on transparent films, on electronic tapes, etc.).
According to UK Act of 1988: 123
(1) "Film" means a recording on any medium from which a moving image may by any means be reproduced.
(2) The sound track accompanying a film shall be treated as part of the film.
(3) Without prejudice to the generality of sub-sec. (2) where that the (sic.) sub-section applies –
(a) References in this part to showing a film include playing the film sound track to accompany the film, and
(b) References to playing a sound recording do not include playing the film sound track to accompany the film.
(4) Copyright does not exist in a film which is, or to the extent that it is a copy taken from a previous film.
(5) Nothing in this section affects any copyright subsisting in a film or sound track as a sound recording.
The US Copyright Act of 1976 124 defines motion picture "as audio visual works consisting of series of related
images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if
any."
12. SOUND RECORDING

In 1877 Thomas Edison in USA invented gramophone, an instrument for reproducing sounds by means of vibration
of needle and later invented the first record of sound vibrations that could be played back for aural perception.
Gramophones were first sold in our country way back in 1895 by the Mutoscope Biograph Company. But the first
record factory came into existence in 1907 when Gramophone and Typewriter Company (Gramco) was established
in Calcutta. The Calcutta company soon obtained an exclusive right to use in India the trade mark His Master’s
Voice (HMV). In the early 1920s, electrical recording replaced direct and uneven acoustical fixation. Then came
magnetic tapes and recorders with a frequency response of 50-10,000 cycles per second, capable of carrying
sounds followed by digital recording (representing the sound waves by means of numerical digits, so that in the
recording wow and flatter are eliminated and background noise reduced). The more recent technological
developments in sound recording are Direct Metal Mastering (DMM, improving sound quality and preventing its
deterioration over a great number of playbacks), Compact Digital Discs (CD, enabling digital play back with laser
optics), Digital Audio Tapes (DAT) and small digital audio cassettes. 125
According to section 2 (xx) of the Copyright Act, 1957, "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
sounds are produced." It includes an ordinary disc, cassette tape, compact disc, digital audio tape and any future
technical developments.
In India, section 52A (1) was introduced by the Copyright (Amendment) Act, 1984, which requires that the following
particulars should be displayed on sound recording and on any container thereof:
(a) the name, and address of the person who has made the sound recording;
(b) the name and address of the owner of the copyright in the work;
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(c) the year of its first publication.
The present U.K. Copyright, Designs and Patents Act 1988, section 5 (A) defines "sound recording" as follows:
"Sound recording" means—

(a) a recording of sounds from which the sounds may be reproduced or
(b) a recording of the whole or nay part of a literary, dramatic or musical work, from which sounds reproducing the work or
part may be produced regardless of the medium on which the recording is made or the method by which the sounds are
reproduced or produced.
Copyright does not subsist in a sound recording which is or to the extent that it is a copy taken from a previous
sound recording.
Points to Remember
1. Copyright exists throughout India in:
(a) Original, literary, dramatic, musical and artistic works
(b) Cinematograph films and
(c) Sound recordings
2. Copyright law does not protect ideas but protects expression of thoughts in a material form. The expression must
originate from author and should not be copied from another work.
3. An idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then it
is capable of protection under the Copyright Act according to some judgments of different High Courts.
4. In certain games the idea cannot be separated from the elements of expression in the game as they are
inextricably linked with each other. In such cases merger of idea and expression takes place and, therefore, it
cannot be protected.
5. The law of breach of confidence is different from the proprietary right of the copyright. The former operates
against those who receive information or ideas in confidence whereas the latter is good against the world generally.
6. There are two kinds of literary works:

(a) Primary or prior works
(b) Secondary or derivative works like adaptation, translation, guide books, etc.
7. The term "literary work" is not defined in the Act. The courts have held the following works to be literary works
and hence protected under copyright law: time table, index, dictionary, question paper, directory, almanac,
calendar, tambola tickets, guide books, telegraph codes, mathematical tables, football fixture lists, head-notes of
law reports, private letters, questionnaire for collecting statistical information, catalogues, adaptation, abridgement,
translation, compilation, collective work, copy-edited judgments if there is minimum of creativity, etc.
8. Copyright does not vest in ideas, subject matter, themes, plots, historical or legendary facts, actual events, single
words and slogans.
9. The student/scholar who has written the dissertation or thesis is the owner of copyright. The copyright does not
vest in the supervisor or university under whose guidance or enrolment the work was written. They cannot even
deemed to be joint authors.
10. Computer programme as defined under section 2 (ffc) and database are included under literary works as
defined in section 2 (o)
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11. Dramatic work includes a piece of recitation, choreographic work or entertainment in dumb show etc. It does not
include cinematograph films. [section 2 (h)].
12. Musical work means any work consisting of music and includes any graphical notation of such work but does
not include any works or actions intended to be sung spoken or performed with the music. [section 2 (p)]
13. Lyrics of a song is literary work but the music accompanying the song is a musical work. Copyright owner of the
lyrics of the song is the writer and that of the musical work is the composer. If a sound recording of the song is
made then the producer of the sound recording is the owner of the recording.
14. Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or
a photograph, whether or not such work possesses artistic quality; a work of architecture, and any other work of
artistic craftsmanship. [section 2 (c)]
15. Sound recording means a recording of sounds which can be retrieved. The medium in which the recording is
made or the method by which the sounds are produced is irrelevant. [section 2 (xx)]
16. Any work of visual recording is a cinematograph film. Therefore, feature films, TV serials, advertisement films,
documentary films, video musical albums etc. will all be covered under the term "cinematograph films". The
cinematograph film includes both the video and the audio accompanying it. Recording of a social or religious
ceremony performed at home will also be a cinematograph film. [section 2 (f)]
1 Subs. by Act 38 of 1994, S.2, for "record" (w.e.f. 10-5-1995).

2 Subs. by Act 38 of 1994, S.2, for "architectural work of art" (w.e.f. 10-5-1995).
3 (1974) R.P.C. 57 at p.68 as quoted in W.R. Cornish, Cases and Materials on Intellectual Property (Sweet and Maxwell,
2nd ed., 1996) p. 253.
4 See, Per Lord Atkinson in Macmillan & Co. Ltd. v. Cooper (K & J) (1923) 40 T.L.R. 186; this statement was approved
by the House of Lords in G.A. Cramp & Sons Ltd. v. Frank Smythson Ltd. (1944) A.C. 329 .
5 (1988) 3 WLR 678 .
6 See Jagdish Prasad Gupta v. Parmeshwar Prasad Singh AIR 1996 Pat. 33 . Also see discussion in Chapter V.
7 See discussions in Chapter VI infra.
8 See Copinger and Skone James, Copinger on Copyright (under: Sweet and Maxwell 13th ed., 1991) p. 63.
9 (1916) 2 Ch. D. 601.
10 1989 PTC 137 (AP). Also see Syndicate of the Press of the University of Cambridge on behalf of the Chancellor v. B.D.
Bhandari 2011 (47) PTC 244 (Del.)(DB).
11 (2001) PTC 57 (Del) 94, 95.
12 Macmillan & Co. v. Suresh Chander Del. (1870) 17 I.L.R. (Calcutta) 951; Black (A & C) Ltd. v. Munay (A) & Sons (1870)
9 SC Sess Cas (3 Ser); Harman Pictures N.V. v. Osborne (1967) I.W.L.R. 723; Ravenscroft v. Herbert & Anr. (1980)
R.P.C. 193.
13 2008 (36) PTC SC. Also see Chapter VI infra .
14 Ibid.
15 Jeffrey’s v. Boosey (1854) 4 HCC 815; Deeks v. Wells AIR 1933 PC; Black’s Law Dictionary, 8th ed., p. 761.
16 Farwell J. in Donoghue v. Allied Newspapers Ltd. (1937) 3 Ch. D. 503; B.N. Kirpal J. in Najma Heptullah v. M/s Orient
Longman Ltd. AIR 1989 Del. 63 [LNIND 1987 DEL 348]; Fazal Ali J. in R.G. Anand v. M/s Delux Films AIR 1978 SC
1613 [LNIND 1978 SC 201]; Harman Pictures N.V . v. Osborne (1967) 1 WLR 723 ; R.G. Anand v. Delux Films ;
Indian Express N/P (Bom) Pvt. Ltd. v. Dr. Jagmohan, AIR 1985 Bom. 229 [LNIND 1984 BOM 337].
17 2009 (41) PTC 709 (Mad).
18 William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law , The Journal of Legal Studies
XVIII (2) (1989) p. 325.
Page 25 of 28
19 See Richard A. Posner, Law and Literature: A Misunderstood Relation , Ch. 7 (1988).
20 See supra note 12.
21 AIR 1989 Del. 63 [LNIND 1987 DEL 348].
22 AIR 1978 SC 1613 [LNIND 1978 SC 201].
23 (2004) 28 PTC 474 (Cal) (DB).
24 (1967) 1 WLR 723 .
25 See Anil Gupta v. Kunal Dasgupta 2002 (25) PTC 1 (Del); Zee Telefilms Ltd. v. Sundial Communications 2003 (27)
PTC 457 (Bom) (DB); Urmi Juvekar Chiang v. Global Broadcast News Limited 2008 (36) PTC 377 (Bom).
26 (2002) 25 PTC 1 .
27 2003 (27) PTC 457 (Bom) (DB); See Jeffreys v. Boosey, 1885, 4 H.L.C. 815.
28 2008 (36) PTC 1 (SC).
29 2008 (38) PTC 416 (Del).
31 AIR 1985 Bom 229 [LNIND 1984 BOM 337].
32 For criticism of the judgment see Bhushan Tilak Kaul, Version Copyright Films and Investigative Journalism in
Materials on Copyright Law edited by Ashwini Kr. Bansal (16 September 2001) sponsored by Ministry of Human
Resources Development, p. 184.
33 Section 2 (o).
34 Eastern Book Company v. D.B. Modak 2008 PTC 9360 SC.
35 See Article 2.
36 . The New Lexican Webster’s Dictionary of the English Language , Deluxe, Encyclopedic Edition.
37 [1916] 2 Ch_601 at 608.
38 See Rupendra Kashyap v. Jiwan Publishing House 1996 PTC 439 (Del).
39 Blacklock v. Pearson [1915] 2 Ch. 376.
40 University of London Press Ltd. v. University Tutorial Press Ltd. [1916] 2 Ch. 601; Aggarwala Publishing House v.
Board of High School and Intermediate Education, U.P. AIR 1957 All 9 ; Jagdish Prasad v. Parmeshwar Prasad AIR
1966 Pat. 33 .
41 Kelly v. Morris (1866) L.R. 1Eq. 34; Morris v. Ashbee (1868) L.R. 7Eq. 634; Gleeson v. Denne 1975 (RPC ) 471.
42 Football League v. Littlewoods [1959] Ch. 637; Ladbroke v. W. M. Hill [1964] 1 W.L.R. 273, H.L.
43 Vishwanatha Iyer v. Muthukumaraswami, AIR 1948 Mad. 139 [LNIND 1946 MAD 214].
44 Southern v. Bailes (1894) 38 501 to 681;
45 Real Estate of New South Wales v. Wood (1923) 23 S.R. (N.S.W.) 349(Aus).
46 Bailey v. Taylor (1824) 3 L.J.O.S. 66.
47 . E.M. Forster v. A.N. Parasuram AIR 1964 Mad. 391 ; N. Ramaiah v. K. Lakshmaiah 1989 PTC 137 (A.P.).
48 Anderson & Co. Ltd. v. Lieber Code Co. (1917) 2 K.B. 469.
49 Blacklock & Co. Ltd. v. Pearson Ltd. (1915) 2 Ch. 376; Leslie v. Young (1894) A.C. 335 H.L.
50 Rai Toys Industries v. Munir Printing Press 1982 PTC 85 Delhi.
51 AIR 1990 Raj. 8 .
52 AIR 1973 Cal. 533 .
53 AIR 2000 Mad. 454 [LNIND 2000 MAD 516].
54 2001 PTC 699 (Del). Also see Sinanide v. La Maison Kosmeo (1928) 139 LT 365 (CA) where it was held that
advertisement slogans are not literary work.
55 2008 (37) PTC 599 (CB).
56 2010 (44) PTC 345 (CB).
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57 (1993) PTC 300 (CB) (Del.); also see Rajiv Malhotra v. Amit Home Appliances, 1996 PTC 704 (Del).
58 1997 PTC 303 (Del.).
59 [1987] FSR 254.
60 [1982] Ch. 119.
61 (1869) LR 2 PC 430.
62 (1989) RPC 469.
63 AIR 1924 PC 75, LR 51 1A 109. The passage is quoted by Lord Atkinson who had picked it up from Copinger’s Law of
Copyright published in 1904 and 1915 respectively. The cases referred to in support of the statement were Lamb v.
Evans [1893] 1 Ch. 219 and Walter v. Lane (1900) AC 539 .
64 Blackwood v. Parsuraman AIR 1959 Mad. 410 [LNIND 1958 MAD 18].
65 (1984) FSR 481.
66 Collis v. Carter (catalogue of medicines held to be copyrightable) (1898) 78 LT 613 .
67 Article 2 (5).
68 1924, Privy Council, 75.
69 L.R. 18 Eq. 444, 458.
70 ILR 17 C, 951.
71 16 Ves. 269, 271.
72 (1858) 6 W.R. 352.
73 AIR 1981 (Cal) 112 .
74 2008 (36) PTC SC.
75 See Explanation (ii) of section 43. Also see, Hughes, Copyright and Databases , Essays in Copyright Law (1990) p. 68;
Lea G. Databases and Copyright (1993) 9 CLSR 68.
76 (1996) PTR 40 (Del.).
77 499 US 340 (1991) as quoted in Lee Burgunder, 245 Also see G.A. Cramps and Sons Ltd. v. Frank Smythson Ltd.
(1944) AC 329 .
78 Ibid.
79 Directive on the Legal Protection of Databases, March 11, 1996 (96/9).
80 See section 2 (o), inserted by Copyright (Second Amendment) Act, 1994; also see section 3 (k) of Patents Act, 1970.
According to this section a mathematical or business method or a computer programme per se or algorithms are not
inventions within the meaning of this Act.
81 Section 2 (ffb).
82 Section 2 (ff).
83 Susan A. Dunn, Defining the Scope of Copyright Protection for Computer Software , 38 Stanford Law Review (1986) p.
497.
84 Dictionary of Computing, p. 335 (Oxford University Press, 1983).
85 Lee B. Burg under, Legal Aspects Of Managing Technology , West Legal Studies in Business 2nd ed. (2001) p. 299.
86 U.S. Code Title 17 as cited in Jeffrey M. Samuels, Patent Trade Marks and Copyright Laws (2001 Ed.).
87 Section 3 of 1988 Act: "Copyright does not subsist". In this part –
‘literary work’ means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly
includes—
(a) a table or compilation other than a database;
(b) a computer programme
(c) preparatory design material for a computer program and
(d) a database.
‘dramatic work’ includes a work of dance or mime; and
Page 27 of 28
‘music work’ means a work consisting or music, exclusive of any words or action intended to be sung, spoken or performed
with the music.
Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and
references in this part to the time at which such a work is made are to the time at which it is so recorded.
It is immaterial for the purposes of sub-section (2) whether the work is recorded by or with the permission of the author; and
where it is not recorded by the author, nothing in that sub-section affects the question whether copyright subsists in the
record as distinct from the work recorded.
88 Section 16 reads : 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 constructed as abrogating any right or jurisdiction to restrain a breach
of trust or confidence.
89 Section 2 (h)
90 Flint, A User’s Guide to Copyright (3rd ed.) p. 187.
91 WIPO, Reading Material , (Geneva, October 1, 1995)
92 See , Redwood Music v. Francis Day & Hunter [1978] RPC 429; Chappell v. Redwood Music [1981] RPC 33;
Sulmangalam R. Jayalakshmi v. Meta Musical AIR 2000 Mad. 454 [LNIND 2000 MAD 516].
93 Article 15 of WPPT provides that performers and producers of phonograms shall enjoy the right to single equitable
remuneration for direct or indirect use of phonograms published for commercial purposes for broadcasting or for any
communication to the public.
94 For example Shefali Jariwala’s ‘Kanta Laga ’; ‘ Meri beri ke ber mat toro ’; ‘ Jhole Lalan ’ etc. are remixes that became
very popular in India.
95 For details see FICCI, Ernst & Young, The Indian Entertainment Industry: Emerging Trends and Opportunities. ,
FRAMES 2004 Global Convention in the Business of Entertainment. For version recording generally see , Gramophone
Co. Ltd. v. Super Cassette Industries Ltd. 58 (1995) DLT 99 [LNIND 1995 DEL 355].
96 WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) (1978) p. 16.
97 Substituted by Act 38 of 1994, w.e.f. 10-5-1995.
98 W.R. Cornish, Intellectual Property (Universal Law Publishing Co. Pvt. Ltd. : 3rd ed.) (1st Indian Reprint 2001) p. 338.
99 Kenrick v. Lawrence (1890) 25 Q.B.D. 99.
100 Tavener Rutledge v. Specters [1959] R.P.C. 355, C.A..
101 Walker v. British Picker (1961) R.P.C. 57.
102 (1988) 3 WLR 678 .
103 Gerald Dworkin and Richard D. Taylor, Blackstone’s Guide to the Copyright Designs and Patents Act, 1988
(Blackstone Press Ltd., 1989) p. 26.
104 AIR 1964 Mad. 114 .
105 1997 PTC 2 (CB) (Thiruvanthapuram).
106 [1983] FSR 32 as quoted in P. Narayanan, Copyright and Industrial Designs (Eastern Law House : 3rd ed. 2002) p. 59.
107 2004 (28) PTC 193 (Bom).
108 See Office Lavato S.P.A. v. Previndha Jagivadas Mehta 2008 (36) PTC 353 (CB); Leo Food v. Nutrine Confectionary
Co. (P) Ltd . 2008 (36) PTC 358 (CB); Ramesh Chand, Sole Proprietor v. Rikhab Chand Jain, Sole Proprietor 2010 (44)
PTC 39 (CB); Dalip Kumar Sohan Lal Maheshwari v. Narayan Atluram Chaattija 2010 (43) PTC 614 (CB); Godrej
Consumer Products Ltd. v. Ashok Kumar Jain 2010 (43) PTC 606 (CB).
109 See, Section 2 (b) of the Copyright Act, 1957. In US an Amendment to Copyright Act in 1990 extended protection to
architectural works including protection for the overall form as well as the arrangement and composition of spaces and
elements in the design but excluded protection for individual standard features (Article 101).
110 [1976] AC 64 as quoted in Gerald Dworkin and Richard D. Taylor, Blackstone’s Guide to the copyright, Designs and
Patents Act, 1988 , (1989) p. 26.
111 In Restaurant Lee v. State of Madhya Pradesh AIR 1983 MP 146 [LNIND 1983 MP 160], it was held that the exhibition
of movies by playing back pre-recorded cassettes in restaurants falls within the ambit of ‘Cinemas’ under the Madhya
Pradesh Cinema (Regulations) Act 1952 that when a video cassette recorder is used for playing pre-recorded cassettes
of movies on the television screen, it is certainly used as an apparatus for the representation of moving pictures or
series of pictures.
Page 28 of 28
In Dinesh Kumar Hanumanprasad Tiwari v. State of Maharastra AIR 1984 Bom 34 where it was held that when a VCR is
used for playing pre-recorded cassettes of movies on the television screen it is used as an apparatus coming within the
definition of ‘cinematograph’ as defined under the Cinematograph Act, 1952. The Karnataka High Court in W.P. No.
8932 to 8936 of 1983 batch has agreed with the view expressed by the Madhya Pradesh High Court.
These cases are referred to in Entertaining Enterprises v. State of Tamil Nadu AIR 1984 Mad 278 [LNIND 1984 MAD 172]
at pp. 282-283.
In Balwinder Singh v. Delhi Administration AIR 1984 Del 379 [LNIND 1984 DEL 41] (DB) (referred to in Tulsidas v.
Vasantha Kumari (1991) 1 LW (Mad) 220at 229) it was held that video and television are both cinematograph and that
both are jointly and severally apparatus for the representation of moving pictures of series of pictures and come within
the scope of section 2 (e) of the Cinematograph Act.
112 The New International Webster’s Comprehensive Dictionary of the English Language (Deluxe Encyclopedic Edition -
1999).
113 Section 3 (c), International Copyright Order, 1999.
114 Section 2 (d)(v).
115 Section 13 (3).
116 Indian Performing Rights Society v. Eastern Indian Motion Pictures Association AIR 1977 SC 1443 [LNIND 1977 SC
128].
117 Fortune Film International v. Dev Anand AIR 1979 Bom 17 [LNIND 1978 BOM 43] at 21 (DB).
118 Ibid.
119 See section 38 (4) of Copyright Act prior to 2012 amendment.
120 The changes made by the amendment of 2012 with respect to the rights of the audio visual performers are discussed
infra in Chapter VIII
121 WIPO, Guide to the Berne Convention for Literary and Artistic Works .
122 Arpad Bosch: The Law of Copyright under the Universal Copyright Convention 9 (3rd rev. ed. 1968). Also see , Pascal
Kamina, Authorship of Films and Implementation of the Term Directive: The Dramatic Tale of the Two Copyrights , 16
E.I.P.R. 319 (1994).
123 Sections 5B of Copyright, Designs & Patents Act 1988.
124 Section 101.
125 J. Glusman Lawrence, It’s my copyright, right ? Music Industry Power to Control Growing Resale Markets in Use
Digital Audio Recordings , 70 Wisconsin Law Review (1995) p. 20.
End of Document
CHAPTER V - Author of Work & Owner of Copyright
ALKA CHAWLA
Chapter V Author of Work & Owner of Copyright
1. AUTHOR AND OWNER OF COPYRIGHT

(a) Introduction
"Author" is the creator of the work but "owner of copyright" is the person who has plenary control over the work. The
fundamental rule is that the author is the first owner of copyright. The ownership of physical embodiment of the
work is different from the ownership of copyright in the work. This can be explained with the following example.
Example : Anand gifts a painting made by him to his friend. Anand passes on the ownership of the physical painting
but not the copyright in the painting. The friend cannot make copies of it for the purpose of selling them in the
market. If he does it will amount to infringement of copyright of the painter Anand by the friend.
The Copyright Act, 1957, gives in detail the rules to determine "authorship" and ‘ownership of copyright’. Since the
ownership is a plenary proprietary right, the rules regarding assignment, licensing and relinquishment of ownership
of copyright are also given in the Act.
(b) Author [Section 2 (d)]
According to section 2 (d) of the Copyright Act, 1957 "author" means:
(i) in relation to literary or dramatic work, the author of the work;

(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
1[(v) in relation to a cinematograph film or sound recording, the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the
work to be created;
(c) Joint authorship [Section 2 (z)]
A work can be created by two or more persons jointly. A "work of joint authorship" according to section 2 (z) 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. The Delhi High Court in Najma Heptullah v. M/s Orient
Longman Ltd. , 2 while discussing the issue of authorship of a book ‘India Wins Freedom’ held that the book was the
product of the active and close intellectual collaboration between Azad and Kabir in pursuance of a pre-concerted
joint design between the two that Azad would contribute the material for the book and Kabir will 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 the "work of joint authorship." The material for the book was supplied by Maulana with a clear understanding
that Kabir will describe these thoughts and conversations and write the same in English language.
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(d) Author of literary, dramatic, artistic and musical works and photographs
Author in relation to literary or dramatic work is the author of the work according to section 2 (d) of the 1957 Act.
The word "author", in all practicality is thus left undefined by the Act. According to UK Act of 1988 author is "the
person who creates the work". 3 Since there is no copyright in an idea, the author will be the person from whom the
language emanates and not the one who suggests a plot or gives an idea. Various authors, therefore, included
under this definition are: novelist, poet, story writer, compiler of encyclopedia and not the person who supplied the
information, 4 writer of the news and not the person who supplied the news, 5 writer of life story of another and not
the one who supplied facts of his life, 6 translator for his translation though he has translated someone else’s
original work, writer of the dissertation or thesis and not his supervisor, 7 the programmer of a computer
programme, the compiler of the database etc.
Author in relation to an artistic work is the artist. Various authors in this category are painter, sculptor, engraver,
woodcutter, person who draws maps, charts, diagrams or plans, a person who makes casts and models, an
architect etc.
A person who takes photograph is the author of the photograph. Same scene may be photographed by different
persons but each has a separate copyright in his respective photograph of that one scene. The author of musical
work is the composer of music.
(e) Author of cinematograph film and sound recording
The author in relation to cinematograph film and sound recording is the "producer". According to section 2 (uu),
"producer" is a person who takes the initiative and responsibility for making the work. This definition was inserted by
the Amending Act of 1994. The High Court of Calcutta in Gee Pee Films Pvt. Ltd. v. Pratik Chowdhry, 8 held that:
the word "responsibility" appearing in section 2 (uu) does not refer to financial responsibility but means "consequential legal
responsibility" for such recording. The producer is the one who takes initiative as well as responsibility of the recording.
Mere payment of expenses of recording including hire charges of studio and remuneration of the musicians does not result
in taking "responsibility for making the work.
Where a cinematograph film is made for valuable consideration at the instance of any person, such person in the
absence of any agreement to the contrary is the first owner of the copyright. 9 Where a cinematograph film or sound
recording is made in the course of the author’s employment under a contract of service or apprenticeship, the
employer is the first owner in the absence of any agreement to the contrary. 10
(f) Author of computer generated works
"Author" in case of "computer generated works" is the person who causes the work to be generated. The Act of
1957, however, does not define "computer generated work." In UK, section 178 of the CDPA, 1988 treats
"computer generated works" as a residual category which applies "in circumstances such that there is no human
author." This has been given to clarify that any creative individual will not be deprived of ownership which should
properly be his. For example, a novel first fixed by being typed into a word processor will not be a computer-
generated work as it has a human author, the novelist. The Indian Act does not give such a clarification. Dworkin
and Taylor observe:
The recognition of the computer-generated category poses something of a conundrum for existing works since it depends
on the assumption that there can be literary, dramatic, musical and artistic works ‘in circumstances such that there is no
human author.’ Any such works made before commencement would appear to be works in which copyright subsists and yet
there is no author who can be regarded as the first owner nor any relevant life by which to measure the duration of
copyright. 11
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(g) First owner of copyright [Section 17]
Section 17 deals with the ownership of copyright. It provides:

Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
Provided that—
(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 insofar 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 {o (sic.) published, but in all
other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a ), in the case 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 therein;
12[(cc) in the case of any address or speech delivered in public, 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 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;]
13[(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 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.
Explanation. For the purposes of this clause and section 28 -A, "public undertaking", means-
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or
(iii) a body corporate established by or under any Central, Provincial or State Act ;]
(e) in the case of a work to which the provisions of section 41 apply, the international organization concerned shall be the
first owner of the copyright therein.
14[Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall
affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.
(h) First owner of copyright is the author
The fundamental rule according to section 17 is that the author is the first owner of copyright. 15 But if the author of
the work is an employee of another or government or public undertaking or an international organisation then the
employer is deemed to be the first owner of copyright. 16
In Chiranjit Singh v. Dua Brothers 17one of the partners in the firm made a painting. The issue was whether the
ownership of the painting vested with the partner or the firm. The court held that partner is the owner of copyright in
the firm as he cannot be said to be in the employment of the firm.
(i) First owner of literary, dramatic, artistic work made by a person in employment of newspaper, magazine or
periodical [ Section 17, Proviso (a)]
If an author of literary, dramatic or artistic work is in contract of service or apprenticeship with a newspaper,
magazine or periodical then the proprietor/employer is the first owner of copyright in so far as the copyright relates
to publication of work in any newspaper, magazine or similar periodical. 18 All the other rights, for example, the right
to make a cinematograph film, right to perform the work etc. vest with the author who created the work for the
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employer newspaper. This exception will not apply if the employee enters into an agreement with the employer
whereby it is stated that the employee author will remain the first owner of copyright in respect of works created by
him during the course of employment.
(j) Difference between contract of service and contract for services
The provisos (a) and (c) distinguish between ‘contract of service’ and ‘contract for services’. According to Halsbury’s
Laws of England : 19
the two terms are different, 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 a direct control by the employer, the degree of independence on 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 contract of service.
In Simmons v. Heath Laundry Co 20 Buckley L.J. held that:
contract of service involves the existence of a servant, and implies that there exists in the person serving an obligation to
obey the orders of the person served. A servant is a person who is subject to the commands of his master as to the manner
in which he shall do his work.
In University of London Press Ltd. v. University of Tutorial Press Ltd., 21 the "element of control" was considered
important in deciding whether the question paper setters were in contract of service or contract for service with the
University of London. However, in later cases dealing with the professionals it was realized that the degree of
control is not always important for determining whether a person is in contract of service or for service, 22 but the
"test of integral part of business" is applied.
In Beloff v. Pressdram, 23 Ungoed Thomas J. after discussing various decisions observed:
The test which emerges from the authorities seems to me, as Lord Denning said, whether on the one hand the employee is
employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into
the business but is only accessory to it. The former is contract of service and the latter is contract for service.
Lord Denning M.R. had given this test earlier in Stephenson, Jordan and Harrison v. Macdonald and Evans. 24
To sum up, the factors to be taken into account for determining whether the person is in contract of service are as
follows:
(i) Direct control of employer.
(ii) Degree of independence on part of the person who renders service.
(iii) The place where the service is rendered.
(iv) Commands of the employer with respect to which the work is to be performed.
(v) Whether the work is integrated into the business
(vi) Intention of the parties 25
In 1977, in England the Whitford Committee discussed in detail the uncertainty attaching to the words ‘contract of
service’ and the difficulty in deciding in particular cases what may or may not be said to be done "in the course of’ a
person’s employment." 26 The Committee concluded:
We take the view that as a matter of principle, if a person is employed to do a job of work and paid for his services
according to the nature of those services, the product of his labour should, subject to any agreement to the contrary, belong
to his employer, whether it be the production of a non-copyright subject matter such as a loaf of bread or the production of a
Page 5 of 13
copyright object, for example, a specification produced in an architect’s office.
The Committee further observed that "the rights in employee’s work should be defined solely by reference to works
made by employees in the course of employment and that reference to "contract of service" and "apprenticeship’
should be deleted." 27 The Act of 1988 of UK thereafter dispensed with these words and enacted a new section 11
whereby the question who is the first owner of copyright in an existing work shall be determined in accordance with
the law in force at the time the work was made. However, section 17 of the Indian Act is similar to the law laid down
in the old UK Act of 1956 and not in accordance with section 11 of CDPA, 1988.
(k) First owner of copyright in case of commissioned works : photograph, painting, engraving, portrait,
cinematograph film, [ Section 17, Proviso (b)]
When a person gets a work done by paying a valuable consideration to another then the work is a commissioned
work. "Commission" according to dictionary 28 means "give somebody the job of making something." The examples
given are: "He commissioned a statue of his wife"; "commission an artist to paint a picture." Where a person rest
under an obligation to do something and in discharge of such obligation he transfers a certain interest, such transfer
is for valuable consideration. 29 Commissioned work is therefore done under a contract for service.
The fundamental rule given under proviso (a) to section 17 is that where there is a contract for service, the author
will be the first owner. For example, in case of a commissioned work for writing lyrics of a song or composing a
music the author will be the first owner of copyright. 30 However, the commissioner of work can protect his position
by express agreement.
Section 17, proviso (b), however, enumerates some specific cases of commissioned work where the first owner of
copyright will be the person at whose instance the work is commissioned and not the author. These cases are:
where a photograph is taken, painting made, portrait drawn, engraving or cinematograph film made for valuable
consideration.
It seems there is a lack of consistency in the existing provisions. Why should photographs, engraving, paintings,
cinematograph films be placed in a different position from all other classes of works when commissioned. It may be
possible to make a special case so far as portraits are concerned, but a person commissioning an artistic work
other than a portrait might be just as desirous of seeing that it is not reproduced wholesale as a person who sits for
a portrait. 31
(l) First owner of copyright in works made by employee authors, [ Section 17, Proviso (c)]
Employer is the owner of copyright in case of work made by an author in the course of his employment under a
contract of service or apprenticeship. The employer is not entitled to copyright in every work created by an
employee but merely "those created in the course of employment". The meaning of this phrase will depend upon
the nature of employment and the scope of what the particular employee is employed to do. In Byrne v. Statist Co. ,
32 an employee of Financial Times was held to be owner of the copyright in a translation from Portuguese, which he
made for employer in his own time for a separate fee since translations were not part of what he was normally,
employed to do.
In Stevenson Jordan v. Mc Donald Evans , 33 Lord Evershed MR held that:
where an employee teacher writes a text book on the subject he teaches, he is the author of the work and is entitled to
copyright because he is employed to teach and not write text books.
In case where employer is the proprietor of newspaper, magazine or periodical the proprietor has only the
publishing rights with respect to the work, the other rights vest with the employee author of the work. This is subject
to any agreement to the contrary.
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(m) First owner of copyright in case of address or speech delivered in public, [ Section 17, Proviso (cc)]
Proviso (cc) to section 17 was inserted by the Copyright (Amendment) Act, 1983. According to this provision a
person who delivers the speech in public is the first owner of copyright. The person who arranges for such address
or speech is not the copyright holder. This proviso is not applicable to lectures delivered to a private audience.
There seems to be an anomaly created by sections 13 and 17 of the Act in case of lectures or speeches delivered.
It is a settled law that copyright subsists only in "works reduced to a material form" by virtue of section 13 of the Act.
A lecture, if not reduced to writing or printing, therefore, is not a ‘work ’as it has not been converted into a material
form. If reduced to writing then copyright subsists in the latter as literary work. A combined reading of section 17
(cc) and section 13 shows that if a lecture is delivered in public then copyright subsists in the lecture, even if it is not
reduced to a material form. If it is delivered to a private audience then one has to find out whether it is extempore or
written down. If extempore or oral i.e. not converted to a material form then copyright does not subsist but the
person delivering the lecture may be protected by performers rights in accordance with section 38. If lecture is
written down then only he has a copyright by virtue of section 13. It is pertinent to note that the only condition laid
down down under section 17 proviso (cc), is the delivery of speech in public.
In Walter v. Lane, 34 Earl of Rosebury delivered speeches in public on five occasions. The speeches were taken
down by the reporter of The Times in shorthand and then published later. Lane published a book which included
Lord Rosebury’s speeches verbatim as published in The Times . The House of Lords held that the reporter of The
Times was the "author" of the report as it was he who had brought into existence in the form of writing the piece of
letter. Lane had only copied it from the report. It is to be noted that in this case the matter was between the reporter
and the publisher and not between the reporter and the person who delivered the lectures. This case will not be
applicable in India, especially after the insertion of proviso (cc) to section 17. 35
(n) Rights of performers, lyricist, composer in a cinematograph film
Once a performer consents by a written agreement to the incorporation of his performance in a cinematograph film,
he shall not in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the
performer’s right in the same film. The only condition laid down by the proviso is that the performer shall be entitled
for royalties in case of making use of the performance for commercial use. 36
When a cinematograph producer commissions a composer of music or lyricist for reward or valuable consideration
for the purpose of making his cinematograph film, he becomes the first owner of the copyright in the film. 37 The
same result follows according to proviso (c) where the lyricist or composer is in the employment of the
cinematograph film producer. However, the composer and lyricist will remain to be the author and first owner of
their work for purposes other than showing of the film in the cinema halls. 38
2. Transfer of Ownership of Copyright

Copyright is a proprietary right of the owner. It can be transferred like any other property. The owner of the
copyright can thus assign it to anyone, 39 licence it, 40 make a testamentary disposition or relinquish the right, 41 the
transfer can take place by operation of any law as in the case of any other property.
(a) Assignment of copyright
The provisions relating to assignment of copyright in the Copyright Act, 1957 are sections 18, 19 and 19A. The
Madras High Court 42 got an occasion to discuss the purpose of assignment vide section 18 and 19 of the Copyright
Act, 1957. It held that an assignment serves two purposes. For the assignee, it confers the right of exploitation for a
specified period in a specified territory. For assignor, it confers the right to receive royalty. The court further held
that the rights conferred by an agreement of assignment on the assignee flow only one way. While after the expiry
of the period of assignment, the copyright flows back to the assignor, the royalty paid to the assignor never gets
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repaid to the assignee. In the instant case there was an agreement in respect of Malayalam film "Body Guard" and
its remake Tamil version " Kavalan ". The Madras High Court held, after going through the provisions of the
agreement that an agreement, the sole purpose of which was just to prevent others from exploiting the copyrights of
the owner and to enable the assignee to get back the loan, cannot be an agreement of assignment but is a loan
deed.
According to section 18 (1) assignment can take place with respect to an existing work or it can even be made by
the prospective owner of a future work. The only limitation in this case is that assignment will take effect when the
work will come into existence. A second limitation is inserted by the amendment of 2012 in following terms:
provided that no such assignment shall be applied to any medium or mode of exploitation of the work which did not
exist or was not in commercial use at the time when assignment was made, unless the assignment specifically
referred to such medium or mode of exploitation of work.
The owner may assign to any person the copyright either wholly or partially and either generally or subject to
limitations. The assignment may be for the whole term of the copyright or any part thereof. It may or may not be
limited to a particular country or territory.
In Sunil Aggarwal v. Kum Kum Tandon 43 the court held that "section 18 of the Act confers ownership rights in a
copyright on the assignee. An agreement which contemplates that a future document of assignment is to be
executed will take effect as an equitable assignment". A mere agreement to assign, operates as an equitable
assignment of the copyright as and when the work comes into existence. 44
The Delhi High Court in Pine Labs case 45 discussed the question of ownership of copyright in a situation where
plaintiff assigned his copyright in a future work to the defendant. The plaintiff contended that section 19 (5) and (6)
of the Copyright Act would be applicable and hence assignment would be valid only for a period of five years within
the territory of India. The defendant on the other hand argued that the provisions of statutory assignment under
section 19 will not apply to an agreement to assign. The court observed that there are two types of agreements, one
being assignment (of existing work) which is an actual assignment and the other is agreement to enter into
assignment or agreement to assign future work. In the former the interest passes along with the beneficial interest
whereas the latter is an "assignment in equity" or "equitable assignment" where rights and interests in equity are
passed to the assignee whereas the beneficial rights are retained by the author/assigner. The court went through
various commentaries written by English authors and concluded that "the assignment in equity is based on the
intention of the parties whether express or implied and is unfettered and unbridled by the provisions of section 19 ."
It is humbly stated by the author that the learned judge has not correctly analyzed the scheme of the Indian
Copyright Act (as amended in 1994) which substituted section 19 (2) by sub-sections (2) to (6). On readingsections
18 and 19 together, it is very clear that the Copyright Act deals with assignment of existing and future work and
does not intend to keep the latter out of the statutory scheme. It is a well settled rule of interpretation that where
language is unambiguous there is no need to resort to foreign authorities. Equitable assignment (of common law) is
given a place in statutory law in India (vide section 18 of the Copyright Act). Therefore, if an assignment or future
work is done in writing then it will be an assignment to which all sub-sections of section 19 will be applicable.
In PEE PEE Publishers and Distributors (P) Ltd v. Neena Khanna (Dr.) 46 an agreement was signed between the
publisher and author. The relevant clauses of the agreement read as follows :
(3) The copyright of this work vests with the author (s) and the author (s) willingly assign (s) the right to publisher to publish
the work, and to reassign the rights of co-publishing, translation, adaptation as may be considered necessary by the
publisher.
(4) The author (s) however agree not to assign the copyright to anyone else during the validity of this agreement without the
explicit written permission of the publisher.
The court in this case emphasized that copyright law is a beneficial piece of legislation whose object is protection of
the author. It spelt out the duty of the court, especially in cases involving the agreement between the author and the
publisher, to be mindful and circumspect to infer the true intent of the parties so that the interest of the author may
not be adversely affected and the correct interpretation to the agreement may be given. The court held that the
conjoint reading of clauses 3 and 4 of the agreement makes it apparent that although the agreement uses the word
"assigns" but the copyright still vests with the author. This is more so, when in clause 3 the expression "assigns" is
used but in clause 4 the author can still assign the copyright with the permission of the publisher during the
currency of the agreement which means that the title/copyright still vests with the author.
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In this case, the Delhi High Court has tried to give a very strong position to the author vis a vis the publisher.
The amendment of 2012 has further strengthened the rights of authors of literary and musical works if their works
are incorporated in sound recordings and cinematograph films by introducing two provisos to section 18 (1).
Accordingly, the author of the literary or musical work included in a cinematograph film shall not assign or waive the
right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such
work in any form other than for the communication to the public of the work along with the cinematograph film in a
cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution
Provided also that the author of the literary or musical work included in the sound recording but not forming part of
any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with
the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collecting
society for collection and distribution.
In Emgeeyar Pictures Ltd. v . O.K. Films, 47there was an assignment deed executed by the appellant in favour of
Defendant No. 1 with respect to three films for a period of 99 years from 25.1.99. The consideration was to be paid
in two installments: one in advance and the other on receipt of some lab letter transferring and delivering the entire
copyrights. It has been alleged that the Defendant No.1 failed to honour the agreement and committed a grave
breach of the contract and hence he was not entitled to any right arising from the assignment deed. This case is
decided by the Division Bench of Madras High Court by applying section 19 (4) of the Copyright Act and principles
laid down under Sale of Goods Act.
It is humbly submitted by the author 48 that the judgment has ignored section 23 of the Contract Act which states
that the consideration or object of an agreement is unlawful if it is of such a nature that, if permitted, it would defeat
the provisions of any law. The above stated assignment deed is made in contravention of section 26 of the
Copyright Act which gives a copyright for sixty years from the beginning of the calendar year next following the year
in which the film is published. If the copyright does not subsist after the above stated sixty years then how could an
assignment of copyright be made for a period of ninety nine years?
Section 18 (2) clarifies that where the assignee of a copyright becomes entitled to any right comprised in the
copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned,
shall be treated for the purposes of this Act as the owner of the copyright.
Example : X writes a novel and assigns the right of publication of novel to a publisher Y. The publication right will
vest with Y, the assignee but the right to make cinematograph film from the novel or the right of translation to
another language will remain with the assignor, X.
In Jogendranath Sen v. State, 49 the author of a book assigned the right to publish the work by a written instrument
to a person who got the work published by his son. After one year, the author’s son instituted criminal proceedings
against the assignee and his publisher son. The court held that the assignor ceased to be the owner of the
copyright in so far as the right so assigned was concerned. The assignee was to be treated as the owner of
copyright in the work in respect of the exclusive right to publish the work, and therefore, it was well within his rights
to get the book published by anyone. The author is the owner of copyright in respect of the rights not assigned.
(b) Mode of assignment
According to section 19 (1), an assignment will be valid if it is made in writing and signed by the assignor or his duly
authorized agent. 50 Therefore, an oral assignment of a copyright is invalid. 51 The subject matter of assignment
can, however, be identified by an oral evidence. 52 There is no particular form prescribed for assignment, it can
even be affected by a letter. 53
The Amendment Act 38 of 1994 substituted sub-section (2) w.e.f. 10.9.1995 whereby the following requirements
with respect to assignment were added:
(1) The assignment of copyright in any work shall identify the work and specify the rights assigned and the
duration and territorial extent of such assignment. If the period is not stated, it shall be deemed to be five
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years from the date of assignment. If the territorial extent is not specified then it shall presumed to extend
within India.
(2) The assignment shall specify the amount of royalty payable, if any, to the author or his legal heirs during
the currency of the assignment and the assignment shall be subject to revision, extension or termination on
terms mutually agreed upon by parties.
(3) If the assignee does not exercise the rights assigned to him within a period of 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 agreement.
The Amendment Act of 2012 has added three more limitations to the ones already in existence with respect to
assignment namely,
(i) If an author assigns his rights to a copyright society on certain terms and conditions and thereafter assigns
to another on terms which are contrary to the previous assignment then the latter assignment is void. 54
(ii) The second limitation is introduced by inserting clause (9) to section 19 in 2012 with respect to assignment
of copyright in a work to make a cinematograph film. If an author of a literary, dramatic, musical, and
artistic work assigns his copyright to a cinematograph film then it is a limited assignment in the sense that if
his work is utilised for any purpose other than communication to public in cinematograph film in a cinema
hall,then he has to be given an equal share of royalty and consideration payable by the copyright owner of
the film.
Example: Producer of a film X gives a right to remake the film to another person Y for a consideration. The writer of
the script for the film X will get an equal share in the consideration paid by Y to the producer. Prior to the 2012
amendment such a continuous right of the author of works utilized in cinematograph films was not recognized by
the legislature.
According to newly inserted clause (10) to section 19 by the amendment of 2012 if a composer of music assigns his
copyright to the producer of a sound recording which does not form part of any cinematograph film then he will have
a right to claim an equal share of royalties and consideration payable for any utilization of such work in any form.
Example: A, a music composer assigns his rights to B, producer of sound recording. B sells this sound recording to
C, producer of a cinematograph film to be used in the film for some consideration. A will have an equal share in
consideration paid to B by C.
In Raj Video Vision v. K. Mohan Krishna 55 the owner and the producer of a Tamil film, " Pasamalar " assigned all
his rights except the right for Hindi version in 1961 to a person. In 1981, he assigned the video rights in the film to
the plaintiff. The court upheld the assignment of video rights and observed:
Neither the assignors or the assignees could have dreamt of telecasting or video rights for exploitation or exhibition or
distribution or printing of master cassettes etc The assignment cannot be made on rights not in existence and therefore, it
can safely be decided that the video rights in the film were not given to assignee in 1961.
In Zee Television Ltd. v. Aalia Productions 56 the court while dealing with an assignment deed in relation to a
programme, "India’s Most Wanted" held that the assignment agreement executed should not be vague and
uncertain. In the instant case the court found that the agreement as regards structure, format, concept, synopsis
and script was vague and uncertain, therefore, no interim relief could be given to the plaintiff.
In A.A. Associates v. Prem Goel and Others, 57 the plaintiff acquired the sole and exclusive rights of distribution,
exhibition and exploitation of film " Mazboor " within the territory of Uttar Pradesh and Delhi from defendant number
2 who acquired the same rights from the producer of the film M/s Suchitra Film Pvt. Ltd. The plaintiff filed a suit to
restrain various cable channels from telecasting the film. The court held that the theatrical rights of the producer are
distinct and different from the telecast rights. Since the assignment was with respect to geographical limitation of
UP and Delhi, the assignment would have been limited to theatrical rights only and therefore could not be extended
to telecast rights.
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(c) Disputes with respect to assignment
Section 19A was inserted in the Act of 1957 by Act 23 of 1983, section 10 w.e.f. 9.8.1984 and substituted by Act 38
of 1994, section 9 w.e.f. 10.5.1995. It provides:
(1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any
act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after
holding such inquiry as it may deem necessary, revoke such assignment.
(2) If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a complaint
from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it may deem fit
including an order for the recovery of any royalty payable:
Provided that the Copyright Board shall not pass any order under this sub-section to revoke the assignment unless it is
satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author.
58[Provided further that, pending the disposal of an application for revocation of assignment under this sub-section, the
Copyright Board may pass such order, as it deems fit regarding implementation of the terms and conditions of assignment
including any consideration to be paid for the enjoyment of the rights assigned].
Provided also that no order of revocation of assignment under this sub-section, be made within a period of five years from
the date of such assignment.
59[(3) Every complaint received under sub-section (2) shall be dealt with by the Copyright Board as far as possible and
efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the
complaint and any delay in compliance of the same, the Copyright Board shall record the reasons thereof.]
Disputes between authors and publishers are not uncommon. Authors allege non payment or under payment of
royalty by the publishers and the latter deny it and substantiate the denial by production of documents, bills and
statistics regarding printing and reprinting of the author’s books. It is an accepted fact that authors have no means
of checking the statistics given by the publishers so the only alternative before them is either to have trust on the
publisher who happens to be the big fish or turn into publishers themselves.
In PHI learning Private Ltd. v . Dr. (Mrs.) P. Meenakshi 60 the defendant/author had assigned the copyright in the
books written by her in favour of the plaintiff/publisher for the entire term of copyright. During the subsistence of the
assignment the author re-assigned the rights to another publisher on the ground that the first publisher was not
paying the right amount of royalty to her though the latter had produced all statements regarding print, reprint and
sale of books before the court. The court passed a decree of permanent injunction restraining the defendant from
assigning the copyright including the right to re-print, publish, sell and distribute the book to any person during
subsistence of the agreement.
(d) Testamentary disposition of copyright
When an owner of copyright in a published or unpublished work dies the copyright will pass to his legal
representatives as a part of his estate. Section 20 expressly provides that if the manuscript of a literary, dramatic or
musical work, or an artistic work has been bequeathed to a beneficiary without specifically bequeathing copyright
the bequest will carry with it the copyright also unless a contrary intention appears from the will. The "manuscript" in
the section means the original document embodying the work, whether written by hand or not.
(e) Right of author to relinquish copyright
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 in the prescribed form to the Registrar of Copyrights or by way of public notice. The rights
cease to exist in the author from the date of notice. However, the relinquishment of all or any of the rights
comprised in the copyright in a work do not affect any rights subsisting in favour of any person on the date of notice.
The Registrar of Copyright shall cause the notice to be published in the official Gazette and in such other manner
as he may deem fit. The Registrar shall post the notice on the official website within fourteen days from such
publication so as to remain in public domain for not less than three years. Once the author relinquishes his
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copyright, the work falls into public domain from the date of notice. It now becomes the common property of
mankind. It is, however, to be noted that where rights in such works are subsisting in favour of any other person on
the date of notice, such rights will not be affected.
POINTS TO REMEMBER
(1) Author in relation to literary or dramatic work is the author, composer for musical work, artist for artistic
work, photographer for photograph taken, producer for cinematograph film and sound recording and for
computer generated work, it is the person who created the work.
(2) The fundamental rule is that the author is the first owner of copyright (section 17). Exceptions to this rule
i.e. when author is not the first owner of copyright are given in proviso to section 17.
(3) In case of work made by "employee author" in course of employment, employer is the first owner of
copyright and not the employee author.
(4) If literary, dramatic, artistic work is created by the employee author, in the employment of a newspaper or a
magazine then the right of publication vests with the proprietor of newspaper, magazine etc. For rest of the
rights, author remains to be the first owner.
(5) In case of a photograph taken, painting or portrait drawn, or an engraving or a cinematograph film made for
valuable consideration, the commissioner of work is the first owner. In other words, author is not the first
owner but the person at whose instance the work was done is the first owner.
(6) If a lecture is delivered in public, then first owner is the one who delivers the lecture.
(7) If a lecture is delivered in public on behalf of someone, then the latter is the first owner of copyright.
(8) In case of works produced by government, public undertaking or international organization, the first owner
is the government, public undertaking or international organization respectively.
(9) The owner of copyright in an existing work or prospective owner in future work can assign his copyright.
(10) Assignment shall take effect only in the medium or mode of exploitation which existed when the
assignment was made.
(11) Author of literary or musical work included in cinematograph film shall not assign or waive the right to
receive royalties, if their work is utilized for any purpose other than incorporation in a film to be shown in
cinema halls to anyone except their legal heirs or to a copyright society only for collection and distribution
of revenue. If any such assignment is made, then it shall not affect the right of author to claim an equal
share of royalties [ section 19A (9)].
(12) An author of a literary or musical work included in sound recording shall not assign or waive his right to
receive royalties to be shared on equal basis with assignee for any utilization of his work. He can assign
his rights only to his legal heirs or a copyright society for collection and distribution of royalties and no one
else. An assignment made in favour of anyone else will be void.
(13) For the purposes of this Act, the assignee for the rights so assigned and assignor for the rights not so
assigned will be the owner.
(14) If the assignment deed does not mention the time period, then it will be valid for five years, and if it does
not mention the territory, then it will be restricted to India.
(15) Copyright law is a beneficial piece of legislation whose object is protection of the author. It is the duty of the
court to infer the true intent of the parties in an agreement between the author and the publisher so that the
interest of the author may not be adversely affected.
(16) If literary or musical works are incorporated in sound recordings or cinematograph films, then authors of
those works shall not assign or waive the right to receive royalties to be shared on an equal basis with the
assignee of copyright if the works are to be used for communication to the public in any way other than in
cinema halls. Such assignment can take place only in favour of legal heirs or a copyright society for
collection and distribution of royalty.
Page 12 of 13
(17) Author of a literary, dramatic, musical and artistic work can make limited assignment of their work to
cinematograph film.
1 Subs. by Act 38 of 1994, section 2, for sub-clauses (v) and (vi) (w.e.f. 10-5-1995).
2 AIR 1989 Del. 63 [LNIND 1987 DEL 348].
3 Section 9 (1), CDPA, 1988.
4 James V . Nisbet v. Golf Agency 23 TLR 370.
5 Springfied v. Thame [1903] 89 LT 242 .
6 Donoghue v. Allied Newspapers [1938] Ch. 106.
7 Fateh Singh v. O.P. Singhal, AIR 1990 Raj. 8 .
8 2002 (24) PTC 392 (Cal) at 401.
9 Section 17, proviso (b).
10 Section 17, proviso (c).
11 Dworkin and Taylor, Blackstone’s Guide to the CDPA, 1988 (Blackstone Press Limited) p.47.
12 Ins. by Act 23 of 1983, section 8 (w.e.f. 9-8-1984).
13 Ibid.
15 See Anant Oil Industries v. New Nandi Seeds Corporation 2009 (41) PTC 736 (CB).
16 See section 17 and the proviso to it. Also see, Tuckers Fastner Ltd. v. Solsons Exports Pvt. Ltd. 2009 (39) PTC 389
(CB).
17 2009 (41) PTC 124 (CB).
18 Periyar Self Respect Propaganda Institution v. Periyar Dravidar Kazhagam 2010 (440) PTC 422 (Mad) (DB).
19 Halsbury’s Laws of England, Vol. 9, fourth ed., para 860.
20 (1910) 1 K.B. 543.
21 (1916) 2 Ch. 601.
22 Whittacker v. Minister of Pensions and National Insurance, (1967) 1 Q.B. 156.
23 [1973] RPC 765 at p.772.
24 (1952) 69 RPC 10.
25 Pine Labs Ltd . v. V Gemalto India Pvt. Ltd. 2010 (42) PTC 229 (Delhi), Zee Entertainment Enterprises Ltd. v. Gajendra
Singh 2008 (36) PTC 53 (Bom).
26 Whitford Committee Report (1977) Del. 163730K40 at para 556.
27 Ibid., para 575 at p.145 also see section 11 (2) CDPA, 1988.
28 Oxford Advanced Learner’s Dictionary of Current English , Fourth Edition.
29 Chidambare v. Renga, AIR 1966 SC 193 [LNIND 1965 SC 161].
30 G ee Pee Films Pvt. Ltd. v. Pratik Chowdhry , 2002 (24) PTC 392 (Cal.) at 396.
31 See Whitford Committee Report of UK, 1977, para 561.
32 (1914) KB 622 ; also see Suraiya Rahman v. Skill Development for Under Privileged Women 1997 PTC 295 (SC)
Bangladesh; V.T. Thomas Alias Toms v. Malayala Manorama Co. ltd. Cochin 1989 PTC 79 (Ker.).
33 (1952) 69 RPC 10 at p.18. Also see, Raj Kumar Sharaf,Prop . v. Visakha Chemicals 2009 (39) PTC 576 (CB).
34 (1900) AC 539 .
35 According to section 52 (a)(iii) reporting of a lecture delivered in public is not an act amounting to infringement of
copyright.
Page 13 of 13
36 Section 38A (2) inserted by the amendment of 2012. See discussion on audio visual performers in Chapter VIII
37 ICA, 1957, section 17, proviso (b).
38 See second proviso to section 18 (1) and section 19 (9) inserted by the amendment of 2012.
39 Ibid . See sections 18, 19, 19A.
40 Ibid . sections 30 -32
41 Ibid . section 21.
42 Sri Gokulam Chit and Finance Company (p) Ltd. v. Johny Sagriga Cinema Square 2011 (46) PTC 513 (Mad.).
43 PTC (Suppl.) (1) (Del).
44 Viswanath v. Muthukumaraswami, AIR 1948 (Mad) 139 [LNIND 1946 MAD 214] also see Reoti Saran Sharma v.
Numero Uno International, 1995 PTR 132.
45 Pine Labs Pvt. Ltd. v. Gemalto Terminals India Pvt. Ltd. (2010) 42 PTC 229 (Del.).
46 2010 (44) PTC 45 (Del.).
47 2010 (42) PTC 404 (Mad.) (DB).
48 See Alka Chawla, Intellectual Property Law , 2010 Annual Survey of Indian Law, Vol.XLVI, p.479.
49 (1994) I.P.L.R. 201 (Cal.).
50 See also Srimagal v. Books India, AIR 1973 Mad. 49 [LNIND 1971 MAD 178]; Subiah Munniswamy , AIR 1966 Mad.
175 [LNIND 1965 MAD 76] at p. 176.
51 Venugopala Setty v. Suryakanta (1992) PTC 55 (Kar).
52 E.W. Savoy v. World of Golf [1914] 2 Ch. 566(CA).
53 London Printing and Publishing Alliance v. Cox [1891] 3 Ch. 291(CA).
54 ICA,1957, section 19 (8).
55 AIR 1998 Mad. 294 [LNIND 1998 MAD 674]; 1999 (19) PTC 110 (Mad.).
56 2000 (20) PTC 382 (Bom).
57 2002 (24) PTC 369 .
58 Subs. by Act 27 of 2012, S. 10, for the words "Provided further that" (w.e.f. 21-6-2012).
59 59 Ins. by Act 27 of 2012, S. 10 (w.e.f. 21-6-2012).
60 2011 (47) PTC 548 (Del.).
End of Document
CHAPTER VI - Rights of Copyright Owners and Infringement
ALKA CHAWLA
Chapter VI Rights of Copyright Owners and Infringement
1. Interests of Authors: Foundation of their Rights

Sir John Salmond defined "right" as an interest recognized and protected by law. 1 The recognition of "interests" of
authors or creators of a work form the foundation on which the ‘legal rights’ of authors rest under copyright law. An
author produces a literary, artistic, scientific or dramatic work or a cinematograph film or a sound recording with
various aims and objectives. These aims and objectives can be termed as his "interests". In creating any work the
author employs his time, energy, labour, skill, creativity, resources, mind, faculties, perceptions and ideologies. The
production of work by the author may be purely for self-growth, self-development and self-satisfaction or for
commercial gains. The work may no doubt have a monetary value but it is also an extension of the personality of
the author. The author expects and assumes that others will respect his work and not encroach on his personality
by modifying, amending, distorting or mutilating his work in any manner that will affect his honour and reputation.
This interest of the author in his "personality" forms the basis of the moral right of integrity of the author.
The work is the brainchild of the author and the author can be deemed to be the parent. He would not, therefore,
like anyone else to claim authorship in his work. This interest lays the foundation for moral right of paternity of the
author.
The work created by the author is the property of the author. He, as an owner, has the exclusive right to reproduce,
communicate, distribute, assign or alienate his work for economic or personal gain. He alone has the exclusive right
to commercially exploit his work. He alone has the right to reproduce his work in any manner, form or medium. This
lays the foundation for the economic rights of the author.
The author may need the assistance of others in order to communicate the work to public. Those who assist the
author to communicate the work to the public spend time, energy, labour, skill and creativity therefore, their effort
need also be recognized and protected. These communicators of work of the author are referred to as the
"neighbours" to the author and any rights, which emerge, to them are called "neighbouring rights" . The international
conventions recognize three such neighbors namely, producers of sound recording, performers and broadcasting
organisations.
The author is not an isolated nomad but a social being who is a member of the matrix of society. His creativity
contributes to social, economic and political progress and the cultural wealth of society and the society in turn
provides conditions for him to grow socially, economically and politically. Since he has a symbiotic relationship with
the society, his claims and liberties can be put under certain restrictions and limitations , keeping in view, the larger
interests of the society. The copyright law recognizes the interests of the author and tries to balance them with the
interests of the public in having access to his work. The restrictions imposed on the rights of the author include
doctrine of fair dealing, issue of compulsory licenses and protection of economic rights in the work for a limited
duration.
The national statutes and international conventions include specific rights in the term ‘copyright’ to avoid confusions
and bring certainty. The term copyright appears to be singular but consists of three bundle of rights: 1. Exclusive
Economic Rights 2. Moral rights and 3. Neighbouring rights. The scheme of the Indian Copyright Act, 1957 with
respect to different kinds of rights is as under:
1. Section 14 gives certain rights to the copyright owner which are commonly referred to as exclusive economic
rights. The rights are dependent upon the kind of work protected. For e.g. the owner of a copyright in literary work
other than computer programmes has seven rights whereas the copyright owner of computer programmes has an
Page 2 of 27
additional rental right and resale right. The copyright owner of cinematograph films and sound recording have only
three rights.
2. Section 57 specifies two special rights to authors, who are the first owners of copyright. These are called "moral
rights" under the international conventions. The rights include the right to paternity and the right to integrity.
3. Section 37 specifies a special right called "broadcasting reproduction right" to every broadcasting organization in
respect of its broadcasts. These are a kind of neighbouring rights under international conventions.
4. Section 38A specifies rights of performers in relation to their performance. These are also a kind of neighbouring
rights under international conventions. The amendment of 2012 has given moral rights to the performers also.
2. EXCLUSIVE ECONOMIC RIGHTS

Section 14 of the Copyright Act, 1957 reads :
Copyright means the exclusive right to do or authorize the doing of any of the following acts in respect of a work or any
substantial part thereof, namely :
(a) in the case of literary, dramatic or musical work not being a computer programme:—
(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;
(iv) to make any adaptation of the work;
(vii) to do, in relation to translation or an adaptation of the work, any of the acts specified in relation to the work in sub-
clause (i) to (vi);
(b) In the case of a computer programme-
(i) to do any of the acts specified in clause (a);
2[(ii) to sell or give on commercial rental or offer for sale or commercial rental any copy of the computer programme,
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not
the essential object of the rental.]
(c) in the case of an artistic work,—
3[(i) to reproduce the work in any material form including—
(A) the storing of it in any medium by electronic means or other means; or

(B) depiction in three dimensions of a two-dimensional work or in
(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;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(d) in the case of a cinematograph film,-
4[(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
(iii) to communicate the film to the public;]
(e) in the case of sound recording :
(i) to make any other sound recording embodying it 5[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.
Explanation . For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in
circulation.
Page 3 of 27
Section 51 specifies the acts when infringement of copyright takes place and section 52 gives a long list of acts
which do not constitute infringement. According to section 51, copyright in a work is deemed to be infringed –
6[(a)when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under
this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent
authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright; or
(ii) permits for profit any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and had
no reasonable ground for believing that such communication to the public would be an infringement of
copyright; or]
(b) when any person—

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the
copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports 7[* * *] into India,
any infringing copies of the work:

8[Providedthat nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and
domestic work of the importer.]
Explanation. For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the
form of a cinematograph film shall be deemed to be an "infringing copy".
Section 2 (m) of the 1957 Act defines an "infringing copy" to mean—

9[(i) in relation to literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of
a cinematographic film;
(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;
(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any
means;
(iv) in relation to programme or performance in which such a broadcast, reproduction right or a performer’s
right subsists under the provisions of this Act, the sound recording or a cinematographic film of such
programme or performance;
if such reproduction, copy of sound recording is made or imported in contravention of the provisions of this Act.]
(a) Right to reproduce the work in any material form
According to section 14 (a)(i) of the Copyright Act, 1957 the copyright owner in a literary, dramatic or musical work
has an exclusive right subject to the provisions of the Act to reproduce the work or authorize the reproduction of the
work in any material form. Reproduction right includes the right to store the work in any medium by electronic
means.
In case of artistic work, section 14 (c)(i) gave the right to reproduce the work in any material form to the copyright
owner but the right to store the work in any medium by electronic means was not given. The amendment of 2012
has removed this lacuna and included storing of work in right of reproduction in case of artistic works also.
However, in case of artistic works the right is elaborated to include depiction in three dimensions of a two
dimensional work or in two dimensions of a three dimensional work. 10
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Example : A draws designs of garments and exhibits them at her showroom. B without the permission of A makes
garments using these designs. B has violated the copyright of A in her designs 11 as he has converted a two
dimensional work into three dimensions without a licence from the copyright owner.
Analysis of clauses (a), (b) and (c) to section 14 show that the right of reproduction constitutes only one of the
bundle of rights accorded to a copyright owner of literary, dramatic, musical or artistic work. The "right of
reproduction" is not given to the copyright owners of cinematograph films and sound recordings but the "right to
make a copy" is given instead. The Act does not define "reproduction" and "copy" and provides no criteria to
differentiate the two terms. It is interesting to note that the other rights like translation (reproducing the work in some
other language), adaptation (reproducing the work in some other form), performance of work (reproducing the work
by performance) etc. also involve reproduction in the generic sense of the term. If that is the situation, then how is
reproduction right different from the right to make a copy and other rights? Is it an umbrella right or a residuary
right? One has to resort to judicial decisions to provide answers to these questions as the legislative provisions
provide no help. The courts of United States, however, provide the answer in "tangibility", "fixation" and
"intelligibility" requirements.
According to section 106 (1) of U.S. Copyright Act, 1976, "the reproduction right consists of the exclusive right to
reproduce the copyrighted work in copies or phonorecords. Copies and phonorecords consist of material objects in
which the work is fixed".
The use of the phrase "material object" means the work, which is tangible . It is only the reproduction of such
material objects that is encompassed in the reproduction right. There may be copying in the generic sense that
does not result in any such material object. Such a copying may infringe one of the other rights accorded to the
copyright owner, but is not an infringement of the reproduction right. For example, the performance right is not
infringed unless the defendant’s performance is copied from the plaintiff’s work, but even with such copying, the
performance per se does not result in the reproduction of the plaintiff’s work in material objects. 12 Therefore, the
performance or oral rendition of work does not constitute reproduction thereof as there is no material object. 13 It
means that one of the essential requirements of reproduction in United States is the "tangibility requirement".
In United States, two more requirements that are read in the right of reproduction by the law and the courts are the
"fixation" and "intelligibility requirement". In order for a work to be " fixed " , in a tangible medium of expression, its
embodiment in a copy or phonorecord, by or under the authority of the author, should be sufficiently permanent or
stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory
duration. 14 A work consisting of sounds, images or both, that are being transmitted, is "fixed" if a fixation of the
work is being made simultaneously with its transmission. Therefore, the reproduction right is not infringed, even if
the defendant embodies the plaintiff’s work in a material object, unless such embodiment is of more than transitory
duration. In order to constitute an infringing copy or phonorecord, the embodiment of the plaintiff’s work must be not
only tangible (a "material object"), it must also be of some permanence. These are two separate concepts which are
not necessarily wedded. Writing in sand is tangible in form but does not have any permanence as the next wave
can erase it forever. The image that appears on a television or theatre screen is embodied in a material object, but
is evanescent. 15
In order for a material object to constitute a copy or phonorecord, it is necessary that the work as fixed therein "can
be perceived, reproduced or otherwise communicated, either directly, or with the aid of a "machine or device" .
Thus although a sound recording is intelligible only with the aid of a "machine or device" 16 it nevertheless satisfies
the requirement that the work be capable of being "perceived, reproduced or otherwise communicated." The same
is true of a computer programme in its "object code" stage. 17 This is called intelligibility requirement.
In India the transient or incidental storage of work under certain circumstances like, "technical process of electronic
transmission" or "providing electronic links" is covered under fair dealing provision in section 52 clauses (b) and (c).
(b) Right to store the work in electronic medium
The right to store the work in an electronic medium vests with the author. The development of new technologies like
CD-Rom, DVD, Internet etc. have enabled the libraries and publishers of newspapers, magazines etc. to store the
printed work in electronic medium. A very important question that arose was whether the libraries and publishers
can do so without infringing the right of reproduction of the author? Section 14 of the Act of 1957 made it clear that
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the libraries and publishers will also have to take the permission of the author. In 2012 an amendment was made in
the Act and a new clause (n) was inserted in section 52 whereby it will not be infringement of copyright if a work is
stored for preservation by a non-commercial public library in any medium by electronic means if the library already
possessed a non-digital copy of the work. This was a welcome step taken by the legislature. It is reported 18 that
unauthorised publication of books in digitized forms is widely available in the pirate markets. There are cases where
200-250 best selling medical and technical textbooks are loaded into CD-ROMS and are being sold for US$5 or
less. This act of reproduction and storage amounts to infringement of copyright even post-2012.
(c) Infringement of right of reproduction
The plaintiff must establish that the defendant "reproduced" the entire work or any substantial part thereof in order
to succeed in a copyright action. It is very difficult at times to produce the direct evidence of reproduction of work by
the defendant The question of infringement is resolved by comparing the two works.
In Francis Day & Hunter v . Bron 19 following principles were laid down by Wilmer L.J. to consider whether the acts
of defendant constituted reproduction of plaintiff’s work:
1. There must be 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.
2. Whether the defendant was or was not consciously aware of such causal connection is quite irrelevant. Where there is
objective degree of substantial 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.
3. 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. 20
4. If, however, the defendant is able to show that the work were created independently by him, there would be no
infringement of plaintiff’s right of reproduction.
A work can be reproduced in any of the following ways:
(d) Reproduction of an idea
There is no copyright in an idea. 21 Therefore, any one can make use of an existing idea in creating his ‘original’
work. However, there is no infringement of copyright in using or copying something if such copying or use is the
only way for putting a particular idea into practice.
In Mother Diary Fruit & Vegetable Pvt. Ltd. v. Mallikarjuna Dairy Products Pvt. Ltd . 22 the Delhi High Court held that
the defendant has every right to use the basic idea involved in the work of the plaintiff, but, he is not permitted to
express that idea in the same form and the same manner in which it has been done by the plaintiff.
It has been held in a few cases decided by Delhi and Bombay High Courts that when a novel idea is converted into
a concept note and submitted to television channels for making a TV programme then the concept note is protected
under copyright law. 23
(e) Reproduction as pirate copy
Any person who makes ‘pirate’ copy of literary, dramatic, musical work or of a film clearly copies by reproducing the
work in a material form. The simplest example of a pirate copy is to produce an identical copy of a literary or
dramatic work by photocopy or making illegitimate copies of sound recordings, cinematograph films and computer
programmes.
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Two kinds of piracy 24 that affect the right of reproduction of the authors specially in software, film and music
industry are:
(a) Counterfeiting : This refers to unauthorized copying of the original film, sound recording or computer software.
The buyers of unauthorized recording of film are led to believe that they are purchasing genuine product. Use of
counterfeited and duplicate sound recordings, films and software causes financial and reputational damages to the
owners. 25
All products are required to display certain information on their covers for the benefit of the consumers. For example
the video products by law must display the following information:
(i) A copy of the Film Censor Certificate;
(ii) Name and address of the person who has made the video film and a declaration by him that he has
obtained the necessary license or consent from the copyright owner for making the copy;
(iii) Name and address of the owner of the copyright.
The buyers must be beware while buying cassettes so that they can differentiate between the genuine
and the pirated copies. The Supreme Court in State of A.P. v. Nagoti Venkataramana 26 held "that a
video film without the statutory information mentioned above shall be deemed to be an infringing copy".
Most optical discs do not contain any details other than the name of the film, either on the disc itself or
the inlay cards. The Film Industry has voiced in a number of conferences the need to have a regulatory
framework in the form of an optical disc law for regulation of manufacture of blank and pre-recorded
optical discs.
(b) Piracy : This involves duplication from the legitimate recordings, compilation and distribution of illegitimate
duplicates in the market for commercial gain. Piracy recording is very rampant in many developing
countries including India. The International Intellectual Property Alliance Special Report 301 annually
estimates the high levels of piracy and the consequent trade losses to the copyright owners and revenue
losses to the government.
In Microsoft Corporation v. Nimesh 27 Defendants were loading software programmes of Microsoft on to the
branded computers without taking any authorisation from them and selling the computers with the unauthorised
computer programs to the customers. Held, the defendants infringed rights of owners of copyright under Sections
14 (a)(i) and 51. Further held that the rights of plaintiff were protected under Section 40 of Copyright Act, 1957 as
both India and US are members of Berne Convention and Universal Copyright Convention.
In Microsoft Corporation v. Rajendra Pawar 28 plaintiff was the owner of the copyright in its computer programme
within the meaning of section 2 (ffc) of the Copyright Act and owner of the registered trademark "Microsoft". The
defendants were preloading various software of the plaintiff, without any authorisation or licence from them on to
the hard disk of the computers that were being assembled and sold by them. Held, this amounted to infringement.
In SAP AG and Anr. Somaya kanti Dutta, 29 the plaintiff was a German Company that had developed SAP-RFI
computer software which was an automatic accounting and transaction processing programme. Defendants used
these software without any licence from the plaintiff. Held, that it was a case of infringement and plaintiff was also
entitled to punitive damamges.
In SAP Akteingesellschaft and Anr. v. Sadiq Pasha Proprietors, 30 the plaintiff was a company incorporated in
Germany. It developed and marketed computer programs for real time business. The defendants were engaged in
providing training services to its clients including training programs in relation to plaintiff’s software products. For
this purpose the defendants were using unlicensed/pirated software of the plaintiff. The defendants did not also
have any education licence agreement with the plaintiffs.
The court held that since Germany and India are party to Berne Convention and Universal Copyright Convention,
sections 40, 14 and 51 of the Copyright Act read with International Copyright Order, 1999 will be applicable in
respect of copyright registrations obtained by plaintiff for software found to be installed in the computers of the
defendant. The defendants were restrained from
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1. using any pirated/unlicensed software of the plaintiff company
2. from imparting training in the aforesaid software programs.
The court further imposed punitive damages amounting to Rs.1 lakh on the defendant.
In Autodesh, Inc v. Prashant Deshmukh, 31 plaintiff, a registered company of USA designed and marketed software
in India. The software was covered by the definition of computer programs within section 2 (ffc) and literary work as
per section 2 (o) of the Copyright Act. The defendants had around forty computers in their office with
pirated/unlicensed computer programmes of the plaintiff. Held, that the defendants were liable for infringement
under section 51 and 14 o 40 of the Copyright Act and International Copyright Order, 1999. Punitive damages were
also awarded to the plaintiff.
The court further observed, "It is difficult to dispute that the use of pirated software of reputed companies such as
Microsoft and Auto CAD is widely prevalent in our country and infact, use of pirated software may be far exceeding
the use of licensed software. The use of pirated software by a commercial enterprise needs to be dealt with more
strictly than use by an individual for his personal purposes."
In Sony Computer Entertainment Europe Ltd. v. Harmeet Singh 32 the case of the plaintiff was that he was carrying
on business and handling the R&D, production and sales of both hardware and software for Playstations. It had
introduced various hardware and software to be used in the Playstations and other home entertainment systems.
Defendants were selling the home entertainment systems of the plaintiff by making modifications and uploading
pirated software. Defendant were also using a software "Jail Break" with a view to breaking the encrypted code on
the original machines and making them ready to be used for uploading all pirated games.
The plaintiff prayed for appointment of local commissioner to visit and inspect the premises of the defendant and
issue of ad interim injunction. The High Court found force in the submissions of the plaintiff and presence of a prima
facie case, therefore, appointed local commissioners for the aforesaid purposes.
As far as piracy in the films is concerned, one of the anti piracy measures adopted by the film industry includes
execution of agreements between film producers and cable network owners. These agreements typically provide
that cable network owners will not screen unauthorized copies of the movies over their cable network channels. The
Cable Television Network Regulation Act, 1995, governs cable operators in India. The problems in the effective
implementation of the law are: many of the cable operators are in the unorganized sector and, therefore, exercising
control over the individual cable operators in a particular neighbourhood is a difficult proposition. Further, no doubt
the Regulation Act, 1995 provides for stringent standards that have to be followed but unfortunately it does not
impose any duty upon the cable operator to ensure that the contents of the programmes aired by them over their
own channels do not infringe copyright.
In Super Cassettes Industries Ltd. v. Uttam Khan, 33 the plaintiff was engaged in business of manufacturing and
marketing audio, video cassettes, CDS, CD players etc. It had a copyright licensing programme under its "T-Series
Public Performance Licence Scheme" wherein it routinely granted licenses to restaurants, night clubs, hotels,
airlines, radio stations, cable TV operators for the use of works in which it had copyright. Defendants were
broadcasting the copyrighted works of plaintiff without any license from them. Court held that the defendants
infringed the exclusive rights of plaintiff under section 14 14 (e)(iii) of the Copyright Act.
(f) Reproduction "in any material form"
The reproduction of a literary, dramatic, musical or artistic work can be "in any material form" and so is not limited to
‘carbon copies’ of the copyrighted work in the same medium: copying a printed literary work by hand, or
photographing a painting would constitute representations of the work in a material form. 34 This would also include
making a sound recording, cinematograph film and copies made by digital technology.
In Public Trust of India Ltd. v. Navbharat Press (Bhopal Pvt. Ltd.) & Ors. 35 plaintiff was a premier news agency,
which provided national and international news content to various newspapers, television or radio networks,
websites and others subscribing to its services. Defendants published verbatim copies and /or colourable imitation
of works or news copyright in which vested with the plaintiff. Held that acts of defendants constituted infringement of
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copyright under section 14 (a)(i) read with section 51.
(g) Reproduction by substantial copying
No difficulty arise in grant of an injunction where the defendant infringes copyright of the plaintiff by copying the
whole of the work but difficulties arise when only extracts are taken from a copyright work. Section 14 of the Act
specifically requires that making substantial use of the work is the right of the copyright owner. Similarly the United
Kingdom courts have held that there will be infringement if the extracts comprise a "substantial part" of the work.
The word substantial is not defined in the Act but it has been held at a number of occasions that substantiality
relates not only to the quantity of the work but also its quality. The quality or importance of the part taken is at times
more significant than the proportion which the borrowed part bears to the whole work. 36 This can be explained by
way of an example: A person photocopying one page from a report running into a hundred pages has not taken a
"substantial part" of the report. But, if he copies one page of recommendations and suggestions of the report then it
would certainly comprise a "substantial part" of the work. 37
The courts have laid down tests to determine what exactly might be covered by "reproduction" in particular when
the defendant has not copied the whole work of plaintiff line by line but has done something less specific. These
tests are as follows:
(i) Totality of impression test. Certain types of works are treated as having a particular value: For instance, if the plot
of story, whether it be found in play or in a novel is bodily taken with or without some minor additions or subtractions
then it violated the plaintiff’s right of reproduction. 38 It is not necessary that the alleged infringement should be an
exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate
that it is copy. This is called "totality of impression test." The test is satisfied when the reader, spectator or the
viewer after having read or seen both works is clearly of the opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original. 39
In Ram Sampath v. Rajesh Roshan 2009 40 the plaintiff was a music composer who created a music
composition/theme tune called "The Thump". Defendant produced a cinematograph film titled as "Krazzy 4". The
plaintiff alleged that four songs of the film were substantial reproduction and/or plagiarized version of the musical
composition "The Thump". The court applied the "lay hearer" and the "untrained ear test" and came to the
conclusion that there was infringement music. It held that for considering whether a copy of a part of the former
musical work into the latter musical work amounts to an actionable infringement, the following factors would be
required to be taken into consideration :
1. Identify the similarities and differences between the two works.

2. Find out whether the latter can meaningfully exist without the copied part.
3. Find out the soul of the musical work. The soul cannot be determined merely by comparing the length of the part copied
but whether the part copied is essential part of musical work. Though a musical work may have a length of several minutes,
the listeners often remember a "catch part" or "hook part". If the "catch or hook part" howsoever small, is copied, the whole
of the latter work would amount to actionable infringement. It is necessary to remind oneself that the desire of an infringer is
necessarily to copy "the attractive", "the catchy", "the grain and the leave of the chaff" for he would attract the audience only
by the attractive and not the ordinary.
4. These factors are only illustrative and there would be many other factors which may be looked into depending upon the
facts and circumstances of each case.
In the instant case, though the part which was copied was small and was only for six seconds but it was repeated
five to six times in the defendant’s work. This was done so that the listener would be hooked to when he hears or
re-hears the musical work. It was a case of substantial copying.
In K.S. Gita v . Vision Time India Pvt. Ltd. 41 Plaintiff alleged violation of her copyright in the literary work
Thangam/Bangaram/Ganga by defendant telecasting the serial " Thangam ". She alleged that the defendant should
be restrained from telecasting the serial and pay a sum of Rs. 10 lac per episode towards royalty to her. The court
held that the violation of the copyright might be taken as proved if after seeing the serial the viewer gets a totality of
impression that the serial was by and large a copy of the original script. Hence it would not be possible to make a
comparison or find out whether there were any similarities, or whether the mega serial then being screened had
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emanated from the script of the plaintiff as alleged by her. It was admitted even by the plaintiff that the mega serial
had crossed 100 episodes for the past one year. If it was restrained from being screened at this stage, neither of
the parties would have the benefit out of the same.
From the decision of this case it is quite apparent that the serial maker stands in a far better position than the
original writer author as the question of infringement will be determined only towards the end of the serial. By this
time the author would have lost her royalty and also the right to restrain an infringer from continuing the infringing
activity. 42
(ii) Feeling and artistic character test. This test is applied for assessing sufficient similarity in case of artistic work
using the idea of appeal to the viewer’s eye. In Bradbury, Agnew & Co. v . Day 43 the plaintiffs owned the copyright
in a cartoon in Punch, ‘Dropping the Pilot’, some actors enacted the cartoon on stage by dressing up and posing to
look like the original. Held, this constituted three dimensional reproduction of the two dimensional work as both the
works gave a feeling that they were same.S. 14 (c)(i) of the Indian Copyright Act specifically gives the copyright
owner the right to convert two dimensional work into three dimensional.
(iii) Change in medium. It is not possible to infringe copyright in works other than artistic works by reproducing them
in another dimension.
Example : X has the literary copyright in a book which incorporates instructions on how to manufacture a product. Y
manufactures the product in accordance with the instructions given by X. Although Y has indirectly reproduced in
three dimensions the two dimensional literary instructions, this does not constitute a copyright infringement. 44
Therefore, the change of medium will not always result in infringement.
(iv) The test of skill, labour and judgment or "sweat of the brow" test. Defendant’s work will not infringe plaintiff’s
right of reproduction if he produces an "original" work. The defendant, no doubt, is entitled to use the plaintiff’s work
as a source of ideas or information if he takes it as a starting point for his own collation of information. But he is not
entitled to copy what the plaintiff has done as a substitute for exercising his own labour, skill and judgment. 45 This
test plays a significant role in determining whether adaptation, abridgement, compilation etc. are original work.
(v) "Minimum of creativity" test. The Supreme Court in Eastern Book Company v. D.B. Modak case followed the
Supreme Court of Canada in the matter of CCH Canadian Ltd . v. Law Society of Upper Canada, 2004 (1) SCR 339
(Canada). It was held in that case thatcreative works by definition are original and are protected by copyright, but
creativity is not required in order to render a work original. The original work should be the product of an exercise of
skill and judgment and it is a workable yet fair standard. The sweat of the brow approach to originality is too low a
standard which shifts the balance of copyright protection too far in favour of the owners right, and fails to allow
copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. On the
other hand, the creativity standard of originality is too high. A creative standard implies that something must be
novel or non-obvious - concepts more properly associated with patent law than copyright law. By way of contrast, a
standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and
provides a workable and appropriate standard for copyright protection that is consistent with the policy of the
objectives of the Copyright Act. Thus, the Canadian Supreme Court was of the view that to claim copyright in a
compilation, the author must produce a material with exercise of his skill and judgment which may not be creativity
in the sense that it is not novel or non- obvious, but at the same time it is not the product of merely labour and
capital. Further the court held that we make it clear that the decision of ours would be confined to the judgments of
the courts which are in the public domain as by virtue of section 52 of the Act there is no copyright in the original
text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his
skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is
not a product of merely labour and capital. The derivative work produced by the author must have some
distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs
put in the judgment would not satisfy the test of copyright of an author.
(vi) Reproduction in computer programme: 46 Abstraction, Filtration and Comparison test. In Whelan Associates 47
the Third Circuit Court of Appeals of US was confronted with questions, whether, even if there was no copying of
object code or source code, there could be copyright infringement in copying the "overall" structure of the
programme. The case was one where the alleged infringement was a rewrite of a programme written in one
computer language in a different language. The court concluded that since computer software was classified as a
literary work under the Copyright Act and since prior decisions had held that there could be infringement of
copyright in a play or book by copying the plot or plot devices of the play or book when the, total "concept & feel" or
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"look and feel "of the alleged infringing work was substantially similar to that of the copyright work, the same test
should apply to infringement of copyright in computer programs.
In early 1990s the software writers started to complain that the protection given by courts by way of "look & feel
test" was very broad and as such was inhibiting new developments and, therefore, should be replaced by
"Abstraction, Filtration and Comparison" test. This approach was developed in the case of Computer Associates
International Inc. v. Altai Inc . 48 and was endorsed by several appeal courts.
The Abstraction test helps in determining what is an idea as opposed to expression. It was articulated by Judge
Hand in Nicholas v. Universal Pictures Corporation 49 as:
Upon any work a great number of patterns of increasing generality will fit equally well, as more and more of the incident is
left out. The last may be no more than the most general statement of what the play is about. There is a point in this series
of abstractions where they are no longer protected since otherwise the author could prevent the use of his ideas to which,
apart from his expression, his property never extended.
The second step in the test is the filtration step; the object of which is to separate out protectable elements of the
expression from non-protectable materials. Such non-protectable materials include elements taken from the public
domain elements that could be used under fair dealing doctrine or under compulsory licensing.
Once filtration is complete the court moves on to comparing that which has been found to be susceptible of
protection with the alleged infringement using the substantial use and substantial similarity test.
In MAI Systems Corp. v . Peak Computer Inc . 50 the ninth circuit Court of Appeals found that the simple
unauthorized act of loading a program into the random access memory of a computer constituted infringement
since it created a copy that can be perceived, reproduced or otherwise communicated. In India no such case has
yet been decided by the judiciary.
(h) Right of issuing copies to the public
The copyright owner has the exclusive right to issue copies of the work to the public not being copies already in
circulation. Therefore, the right to bring the work to public for the first time vests with the author of the work. In some
countries it is called moral right of divulgation and not the economic right of first publication. 51 The moral right of
divulgation augments the economic right in the sense that it insulates the unpublished work from exemptions and
other limitations that are permitted under the economic right.
If anyone other than the copyright owner issues the work to the public without the authority of the owner, then he is
an infringer of this right but if he reproduces the published work without the authority of the copyright owner then he
violates other rights of copyright owner but not the right to issue copies to the public.
Example : A has already sold copies of his work in the market and B subsequently markets pirate copies of A’s
work. B has infringed the right of reproduction of A but not the right to issue copies to the public.
The owner of the copyright normally has no further rights in connection with the subsequent sale or hiring of the
copyright work. The right is said to be exhausted with first sale except under few circumstances dealt with under the
distribution right below.
The right of first publication is not coupled with the right of withdrawal of work. This is made explicit by section 31 of
the Act of 1957, which provides for compulsory licences in works withheld from public.
In John Wiley & Sons Inc. & Ors. v. Prabhat Chander Kumar Jain & Ors. , 52 the plaintiffs were publishers in USA.
They decided to expand their operations in India by introducing Low Price Edition (hereinafter referred to as LPE) of
their books. For this purpose they authorized publishers in India for publishing and distributing their works subject to
certain territorial restrictions. The grievance of the plaintiffs began when they discovered that the defendants, who
were publishers and booksellers in Delhi started a website offering online sales and delivery worldwide of the LPE
of the plaintiff’s publications. Plaintiffs allege that these acts of defendants of diverting the LPE of books meant for
sale in India and neighboring states to USA, UK and other countries amounts to infringement of the plaintiffs
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copyright in the said books. According to defendants, they had legally bought the books and then exported those.
The defendants contend that the export of books does not amount to infringement of copyright. They also rely upon
the rule of "exhaustion of rights" whereby the rights of the copyright holder are lost once the first sale of the article is
affected.
The court after discussing sections 13, 14, 30, 51, 54 of the Copyright Act,1957 gave the following legal
propositions:
That the rights of the owner may be broader than the limited rights of the exclusive licensee, although the exclusive
licensee has the independent right to sue for infringement of the copyright.
That the rights of the owner and exclusive licensee may not be the same and the rights of the exclusive licensee shall also
be subject to the fetters imposed by the agreement between the licensor and licensee.
Applying these principles to the present case, it can be seen that the plaintiffs are the worldwide owners of the
books and their copyright. The acts of the defendants of purchase of the books from the exclusive
licensee/licensees are legitimate in nature and do not hinder or take away anyone’s rights including the rights of
exclusive licensee/licensees. But once the said defendant offers for sale the books or publications (which are
fettered by territorial restrictions purchased from exclusive licensees) and puts them into circulation by selling or
offering for sale or by taking orders for sale to the territories beyond the ones for which permission has been
granted by the owners of the copyright, the said acts are prima facie tantamounting to putting into circulation or
issuance of copies not being in circulation in other territories where the right to do so is of the owner to exercise and
violates the rights of the owner of the copyright under section 14 read with section 51 of the Act, if not the rights of
the exclusive licensee.
Moreover, the licensee who is the permissive rights-holder of the copyright which is subject to limitation can assign
the said right only and nothing beyond that. The only exception to that would be a person who is a bona fide
purchaser without having notice of the transaction. Once the defendants purchase the LPE books of the plaintiffs
from their exclusive licensee, they are conscious of the fact that the said editions are subject to territorial restrictions
which are meant to be sold within the limited territories only. The notice on the book itself gives knowledge to the
purchaser about the said territorial restriction. The defendants’ argument that the first sale doctrine will exhaust the
rights of the plaintiffs internationally is incongruous and the same will lead to absurd results in as much as the
defendants are the purchasers of the books with notice from the exclusive licensee and not from the owner of the
copyright. The purchaser after purchasing from the exclusive licensee cannot by claiming the principle of
exhaustion or extinguishment of rights defeat the rights of the owner. This is the only harmonious interpretation
possible by invocation of doctrine of first sales in the present case according to the Delhi High Court.
(i) Right to perform the work in public or communications to the public
A work can be reproduced before the public by way of performance or recitation of the work. If this is done without
the authorization of the author, it may undermine the right of reproduction of the author, therefore a separate right in
the form of public performance and right to communicate to public are given as exclusive economic rights to
copyright owners. The Berne Convention; TRIPS, 1994; and WCT, 1996 provide for these rights as separate
exclusive economic rights.
Public performance and communications to the public, as defined under section 2 (ff) are methods of transmission
or presentation of a work to a wide number of listeners or spectators. They make up the principal subject matter of
neighbouring rights. Usually the persons performing these acts derive economic return from the act. Neighbouring
rights and other related rights are generally subject to neither the Berne nor the Universal Copyright Convention but
to other international 53 or regional treaty arrangements.
Public performance right applies only to performance in public; it has no application to private performances.
However, the copyright conventions do not define what is meant by the term "public" and it is a matter for each
member country to draw the dividing line between public performances for which the copyright owner’s consent is
required and private performances for which consent is not necessary. While some countries have left this decision
for their courts, 54 a growing number in recent years have enacted statutory definition either by defining what is to
be considered a ‘public’ performance or by listing examples of performances that are not to be considered private.
55 Communication to the public was defined in section 2 (ff) of the 1957 Act as "making any work available for being
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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 or whether any member of the public actually sees, hears or otherwise
enjoys the work so made available."
The amendment in 2012 redefined " communication to the public" 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.
Explanation. For the purposes of this clause, 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;
Performance was added to the definition as a consequence to the changes in the rights of the performers.
In Garware Plastics & Polyster Ltd. v. Telelink the question raised was whether showing a video film over a cable
T.V. network amounted to infringement of the right to communicate to public. The court held that the video may be
watched by a large section of the public in the privacy of their homes but this does not make it a private
communication so as to take it out of the definition of "broadcast" under section 2 (dd). The viewers of cable TV
network are a portion of public and they cannot be considered domestic viewers of the owner of copyright and they
in fact pay the cable TV network company for watching the film. Showing films over cable TV without proper
authorization amounts to infringing of copyright.
In NEO Sports Broadcast Pvt. Ltd. v . New Sanjay Cable Network 56 the plaintiff was a broadcaster having copyright
over broadcasting of live test matches between India and other countries pursuant to an agreement entered into
between the plaintiff and BCCI.
Defendant is a hotel which makes available the cricketing events broadcast through Neo Sports & Neo Cricket to its
clients. According to the court this leads to unauthorized public performances as the hotel had not taken any
permission or licence from the plaintiff channel. Therefore, placing a television set and making available the sports
channel for viewing by its customers/clientele infringes the copyright as it amounts to communication to public. 57
From the definition of communication to public it can further be inferred that the communication right in India
includes the activity of Internet as amended in 1994. 58 Such a right was not given in Berne Convention but was
included in WCT only in 1996. 59
Example. If A uploads copyright work of B without his permission or forwards the work of B to all his friends through
an e-mail then A has infringed the right of communication of B.
In Indian Performing Rights Society Ltd. v. R. Krishnamurthy 60 the court restrained defendants from infringing the
plaintiff’s copyright by communicating to the public the plaintiff’s repertoire comprising of works of all its members.
The members had assigned their performing rights to the IPRS. The defendant hotelier was playing music by live or
other means or by mechanical devices within its premises without obtaining licence from IPRS, a company
registered under the Companies Act and also registered under section 33 of the Copyright Act. IPRS is a non-profit
making body established to monitor, protect and enforce the rights, interests and privileges of its members which
consist of authors, composers and publishers of literary and musical works. The court held that the defendants were
liable under section 51 (a)(i) read with section 14 (a)(iii) of the Copyright Act
(j) Right to make cinematograph film or sound recording in respect of the work
A literary, dramatic or musical work may be reproduced in the form of a cinematograph film or sound recording only
with a license granted for the purpose by the owner of the copyright in the work. But if cinema or sound recording is
made with such license, an independent copyright subsists in cinema or sound recording as a protected work under
the Act.
Example. X makes a film based upon Y’s copyrighted play without any permission from Y. X’s film, if substantially
similar to the play infringes the right to make cinematograph of Y. If X makes a film with the license from Y then X
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has not infringed the right to make cinematograph film of Y. In-fact X has a separate copyright as producer in the
film made by him.
The Bombay High Court in Indian Express Newspaper (Bombay) Pvt. Ltd. v. Dr. Jagmohan Mundhara 61 held that
there cannot be a copyright in an event which has actually taken place. The court further held that there is a
distinction between the materials upon which one claiming copyright has worked and the product of the application
of his skill, judgment, labour and literary talent to these materials. The form, manner or arrangement of a drama and
movie are materially different from a newspaper article and by very nature of the media there is a fundamental and
substantial dissimilarity in the mode of expression of the idea in a newspaper article and in a stage play or in a
movie.
In this case the producer of the film did not merely take the idea from the writing of the journalist but made a
cinematograph film on the facts as found by the journalist after laborious and risky investigation. The court did not
go into the difference between "journalism" resulting in reporting of news and "investigative journalism" where
expression is given to the stories dug out by the personal effort of the journalist. There is a difference between
simple reporting of an event and reporting after daring and risky investigation of the facts. In the latter case the
attempt of journalist should be treated as his autobiographical expression where he alone has the copyright. Since
the producer of the film " Kamla " had made the film in respect of the work therefore, it in the opinion of the author
amounts to infringement of the copyright of journalist.
In Twentieth Century Fox Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd ., 62 the plaintiff claimed that
copyright in the literary and artistic work being the script and screenplay of its film "Phone Booth" was assigned to it
under certain agreement. It claims that the defendant has infringed copyright in the script, screen, storyline and
dialogues in their film "Knock Out".
The court held that the defendant shall not exhibit, release for exhibition or broadcast their film "Knock Out" in any
jurisdiction in the present form so as to infringe the plaintiff’s copyright in the script, screenplay, story and dialogues
so as to pass off the suit film as that of the plaintiff’s film "Phone Booth" without the consent of the plaintiff. 63
Variety of authors are involved in making of a musical work embodied in a cinematograph film namely, lyricist, the
author of literary work; composer, the author of musical work; producer, the author of cinematograph film and
producer, the author of sound recording. For administration of rights in musical works two societies are registered
under the Copyright Act, 1957, namely, Indian Performing Rights Society (IPRS) and Phonographic Performance
Limited (PPL).
In Indian Performing Rights Society v . Aditya Pandey 64 two suits were simultaneously taken up by the Delhi High
Court. The first suit was between IPRS as plaintiff and Synergy Media (a broadcaster) as defendant. The second
suit was between IPRS and PPL as plaintiffs and CRI Events (engaged in event management) as defendants. The
case is very significant as it will cause heavy economic burden on various authors.
In the first suit the IPRS claims that it is exclusively authorized to licence the public performance rights underlying
the musical and literary work created by its members. IPRS submits that its rights to demonstrate copyright content
is in respect of public performance rights (which include the right of performing the work in public, right of enacting
work to the public by making it available for visual or audio enjoyment indirectly or directly to the public, including by
diffusion etc. and the right to authorize any of such uses). On the other hand it submits that rights of Public
Performance Rights Society (hereafter "PPRS") operate in a different field and extend to the exploitation of sound
recordings. It, therefore, concludes the contention by submitting that even if a user secures licence from PPRS for
the sound recording performance in the public, the IPRS would have the right to claim licence fee.
It is submitted that the logic of these separate rights is that, that while sound recording rights may inhere in one set
or body of persons, for the same work, the other rights would continue to vest with the authors and with the latter
artists, composers, directors, lyricists etc. IPRS submits that the latter body of copyright owners cannot be expected
to chase diverse users such as shops, aircraft, hostels, clubs, offices, bars, discos etc. IPRS submits that the
enabling provision under section 62 (2) of the Act that entitles a plaintiff to institute legal proceedings against the
alleged infringer of copyrighted material or content at a place where it (the plaintiff) is incorporated or carries on
business facilitates the enforcement of its members’ rights.
IPRS further submits that in terms of the scheme formulated by the Rules, which are governed by the provisions of
the Act, it can frame guidelines and tariffs for the structured collection of fees, having regard to the user
organisation, the event or the nature of the public performance right in question. IPRS also says that under the
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rules, it cannot collect more than 15% of the revenues derived from such royalties as administrative expenses, and
the rest is distributed to its members. It also states that tariffs are fixed on the basis of pre-determined formulae and
guidelines after involving all the copyright owners.
The defendant, Synergy Media, a company involved in broadcasting business proposed to launch broadcasting
services in various cities. It alleged that the composer of the musical work, or its author do not possess any rights in
the works once those rights are assigned in favour of the producer of a cinematograph film and as a consequence,
IPRS cannot claim or legitimately secure any licence or authorization fee. Interestingly, both the parties have relied
on the same judgment of the Supreme Court 65 (hereafter Eastern IMPA case)
In the second suit, the IPRS and PPRS allege that the defendant, a banquet hall, permitted CRI Events to use its
premises for communicating the work to public without a licence from the plaintiff and, therefore, is liable for
infringement of copyright.
The court analysed various provisions of the Indian Copyright Act, 1957, compared them with law in the USA and
UK; discussed the provisions prior and post 1994 amendment to ICA, 1957. For the decision the court heavily relied
on first, the harmonious interpretation of sections 13 (4); 14 (a)(i), (iii), (iv); 14 (d) and 14 (e); second, the IMPA
judgment of the Supreme Court; third, the Parliamentary recognition by the 1994 amendment of the fact that sound
recording is different from that of musical or literary work. It then held the following:
Once a license is obtained from the owner or someone authorized to give it, in respect of a sound recording, for
communicating it to the public, including by broadcasting, a separate authorization or license is not necessary from the
copyright owner or author of the musical and/or literary work. However, this would not mean that the musical and/or literary
work can be otherwise "performed" in the public, (as opposed to communication of a sound recording to the public) without
authorization. In such event, the author/owner’s license or authorization is necessary. In other words, it is clarified that the
other "bundle of rights" which authors or owners of musical or literary works are entitled to enforce, remain undistributed.
In case the performance is of the work without the sound recording, authorization of the IPRS is necessary. If both kinds of
works are performed, the licenses from both societies have to be obtained. In the case of CRI Events, no such
authorization was obtained, or given to it.
The consequences are:
(i) In the Synergy suit Synergy Media is not required to take a licence from IPRS
(ii) In the CRI suit a) If the banquet wishes to perform sound recording in public (paid audience) licence from PPRS is
essential b) If the musical works are to be communicated or performed in public independently through an artist, the licence
of IPRS is essential c) In case banquet wishes to hold an event involving performances or communication of work of both
kinds to public, the licence of both IPRS and PPRS are necessary.
Three days prior to the above reported Aditya judgment came a pronouncement from the Bombay High Court in
Music Broadcast Private Ltd. v. Indian Performing Rights Society Ltd . 66 on similar lines. S.J. Vazifdar, J. held that it
was in agreement with the following propositions:
I. The Act recognizes only three classes of work viz. (a), literary, dramatic, musical or artistic work; (b) cinematograph films
and (c) sound recordings. Each class is independent of the other. Each class of work gives a bundle of rights to the owner
thereof, which are independent of the other works. The rights therein can be exploited by the owner of the work in each
class without the interference by the owners of the works in other classes.
II. No class of work is inferior to the work in another class. Therefore, right of an owner of a sound recording, which is a
derivative work is in no way inferior to that of right of an owner of copyright on original literary or musical work.
III. In sound recording and cinematograph films, the literary and musical work gets incorporated therein and thereupon
independent copyrightable works viz. sound recording and cinematograph films come into existence and, therefore, rights
under Section 14 in respect of each sound recording and cinematograph film come into existence which can be exploited
by the owner of the sound recording or cinematograph film without interference from the owners of copyright in the
underlying literary or musical works therein.
IV. The owner of a sound recording has, inter-alia , the exclusive right of communicating the sound recording to the public.
Though the exercise of such right has the effect of communicating the underlying work viz. musical or literary to the pubic
(sic.) such communication of underlying works being a part of sound recording does not amount to infringement of the
copyright of communicating to the public, the underlying works.
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The owner of a sound recording has an exclusive right to communicate the sound recording in any form and such
communication in exercise of right under section 14 (1) (e)(iii) cannot amount to infringement of any underlying work in such
sound recording.
V. The owners of underlying works incorporated in a sound recording do not have the right of communicating the same to
the public as a part of the sound recording.
VI. The owner of a copyright in the underlying works retains the bundle of copyrights therein otherwise than as a part of the
sound recording.
VII. The right of public performance of an underlying work is different from the right to communicate the sound recording in
which the musical or literary work is incorporated.
VIII. The defendant, therefore, can claim licence fees only in respect of public performance of musical or literary works of its
members or in respect of communication of such works otherwise than as a part of other copyright work viz. sound
recording or cinematograph film. In other words, the defendant cannot claim licence fees in respect of public broadcast or
communicate to the public, musical or literary works as a part of a sound recording.
Once a sound recording is made, it is only the producer, as the owner thereof, who can exploit it exclusively in the
manner provided in section 14 (1) (e). However, those rights are confined to that particular sound recording and that
sound recording alone. The owner of the sound recording can communicate the same to the public, inter-alia , 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.
In this case it was held that the plaintiff i.e. the FM Radio Broadcasting Station is not required to pay royalty/licence
fee to IPRS which administers the rights of lyricists and composers. The plaintiff is legally bound to pay royalty only
to PPL and not to IPRS.
IPRS will become poorer as a result of the above two decisions of the Delhi and Bombay High Courts. The
decisions will, therefore, have an adverse impact on the composer’s booty.
In 2012 a new section 31D was inserted so that any broadcasting organisation desirous of communicating to the
public by way of broadcast or by way of performance of a literary or musical work and sound recording which has
already been published could apply to the Copyright Board for issue of a statutory licence. 67
(k) Right to make translation of the work
Translation means reproducing the work or expression of a work in a language other than that of the original
version. In order to translate a work protected by copyright, authorization of the copyright owner is required 68 but
the translations also enjoy copyright without prejudice to the rights of the original authors. This right was recognized
as fundamental in 1886 as translation gives literary works their international dimension. Moreover, translation of
works helps educational activities in developing countries.
Example : Y translates X’s Hindi novel in Telugu without authorization from X. Although every word of the
translation is different yet Y infringes the translation right of X.
The variety of national languages among the original members of the Berne Union, and the fact that each language
represented a distinct market for a work’s exploitation, probably explains why the translation right was the first right
to be expressly included as a minimum Berne requirement. In fact, according to Prof. Ricketson 69 this right "was
probably the most important factor which drew states into international copyright agreement in the late nineteenth
century". Limitation to the exclusive right of translation in the form of compulsory license is provided for in the
developing countries. 70
(l) Right to make adaptation of the work
Adaptation is usually understood to involve adapting a pre-existing work from one medium to another or
reproducing the work in another medium or alteration to a work in the same medium.
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The Indian Copyright Act defines "adaptation" under section 2 (a) to mean –
(i) in relation to a dramatic work, the conversion of work into a non-dramatic work;
(ii) in relation to literary 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 picture in a form suitable for reproduction in a
book, or in a newspaper, magazine or similar periodical.
(iv) in relation to musical work, any arrangement or transcription of the work; and
(v) in relation to any work, any use of such work involving its rearrangement or alteration.
The Indian law treats adaptation right as a discreet economic right, like the Berne Convention. 71 Article 12 of the
Berne Convention, Paris Text, provides that authors of literary and artistic works "shall enjoy the exclusive right of
authorizing adaptations, arrangements and other alterations of their work".
Example : Anand has copyright in his novel, the literary work. Pradeep wants to make an abridged version of it.
Pradeep will have to take the authorization for abridgement from Anand, since Anand has a right to make any
adaptations of his literary work. The copyright in abridgement, a literary work will vest with Pradeep. If Pradeep
makes the abridgement without authorizations from Anand then Pradeep infringes the adaptation right of Anand but
he does have a separate copyright in his abridgement.
Some countries treat the adaptation right as an aspect of reproduction right as there is considerable overlap
between adaptation right and reproduction right. 72 For example, a three dimensional sculpture may be an
adaptation of a two dimensional drawing, according to Berne Convention but in India according to section 14
(c)(i)(B) it will be "reproduction of a two dimensional work" and not "adaptation".
The adaptation right has been given a separate economic right status in order to presumably strengthen the basic
right of reproduction of the author. It is important to recognize that copyright law, quite independently of the original
work from which it is derived, protects adaptation. The Berne Convention makes it clear that copyright in an
adaptation is without prejudice to the copyright in the original work. 73 In the above stated illustration Anand’s
copyright in his novel is distinct from Pradeep’s copyright in his abridgement.
The economic right of adaptation sometimes may also overlap with the moral right of integrity, which similarly
empowers the authors to control changes in their work. Pradeep will have to preserve the content of Anand’s novel.
Pradeep cannot convert the happy ending of Anand’s novel into a tragic end in his abridgement. If he does, then he
violates Anand’s rights/special rights under section 57.
(m) Right to make a copy of the work
In cinematograph films, reproduction right is limited to making a copy of the film 74 and in case of sound recording,
to make any other sound recording embodying it. 75 The Copyright Act, 1957 does not define the words
‘reproduction’ and ‘copy’. It is, therefore, essential to find out the meaning from the judicial decisions and the
scheme of the Act. The Bombay High Court in Star India Private Ltd. v. Leo Burnett (India) 76 held that:
to make a copy of the film means to make a physical copy of the film itself and not another film which merely resemble the
film. The making of another film is not to be covered by the word ‘copy’ under Section 14 (d)(i). 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 the 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 are derivative works and,
therefore, the requirement of originality is absent for claiming copyright in cinematograph film/sound recordings.
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The Bombay High Court followed decisions rendered in various English and Australian cases, which are discussed
hereunder.
In Norowzian v. Arks Limited and others , 77 the English Copyright Acts of 1956 and 1988 were considered. In this
case, it was the plaintiff’s contention that the defendant’s film reproduced the essential features of the plaintiff’s film.
On this basis, the plaintiffs alleged that the copyright in their film had been infringed because, according to the
plaintiffs, the making of the defendant’s film constituted copying of the plaintiff’s film. The defence of the defendants
was that they had made their own film and, therefore, there was no copying. The court, after referring to Modern
Law of Copyright and Designs by Laddie Presscott and Victoria, and Copinger and Skone James on Copyright held
that:
for the second film to infringe the copyright in the first film, it had to be an actual copy of the first film itself. In respect of a
cinematographic film it is the recording that is protected from copying and nothing else." That even if the defendant’s film
exactly resembles the plaintiff’s film, but if the defendants’ film is a re-shoot of the plaintiff’s film, which reproduces the
essential features of the plaintiff’s film but does not copy the plaintiff’s film, that is, it does not and cannot infringe the
plaintiff’s copyright in the plaintiff’s film. This decision follows the decisions of the Australian Courts in Telemak
Teleproducts (Aust.) Pty. Ltd. v. Bond International . 78 It was thus held that unless there has been a copying of the whole or
substantial part of the plaintiff’s film itself, in the sense of a copying of the particular recording of that film, there cannot be
any infringement of the copyright. The re-shoot of the film cannot be said to be the copy of the film for the purposes of
infringement.
In Spelling Goldberg Production v. BBC Publishing Ltd. 79 the defendants had acquired possession of the plaintiff’s
film and had made a physical copy of the plaintiff’s film. It was on these facts that the court had held that it was a
copy of the plaintiff’s film.
Section 14 (d)(i) is enacted to curb piracy in films. The Bombay High Court in Star India Case 80 while making
distinction between "reproduction" and "copy" failed to point out that a copyright in a film does not arise if the film or
the substantial part of the film is an infringement of the copyright in any other work. If the defendant’s film is a re-
shoot of the plaintiff’s film and the producer has not taken permission from the author of the story then it will be an
infringement of the copyright of the storywriter and, therefore, no copyright will subsist in defendant’s film according
to section 13 (3) (a). Moreover, version copy in case of sound recording was earlier covered by section 51 (1) (j) but
the version copy of films is not covered under section 52 dealing with acts not amounting to infringement. The
amendment of 2012 has deleted section 52 (1)(j) but inserted a provision for grant of statutory licence for cover
versions only of sound recordings.
(n) Distribution right (Resale and rental right)
The right of distribution is the right to authorize the distribution to the public of copies of a work. Distribution of work
can be by sale, lease, rental, lending, any transfer of ownership or possession of copies of the work.
The WIPO Guide 81 explains:
In practice the distribution right flows from the right of reproduction. The author, when he has made a contract about the
reproduction of his work, can lay down conditions governing the distribution of copies, eg. as to number and as to the
countries in which those copies may be sold.
A few national systems have a comprehensive distribution right. 82 In India, in the case of literary (including
computer programmes), dramatic, musical or artistic work the right "to issue copies of the work to the public not
being copies already in circulation" 83 is an exclusive right of the copyright owner under section 14 (ii). Whereas the
copyright owner of cinematograph work or sound recording has the exclusive right "to sell or give on commercial
rental or offer for sale or such rental, any copy of the film or sound recording." 84 Similar right has been given in
case of computer programme. Thus it is apparent that the right of sale of the author of film, sound recording and
computer programme is not exhausted by first sale but they have resale and rental rights in the respective copies.
Example : A legitimately buys a copy of a film. He then indulges in commercial renting out of the film without the
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permission of the producer. A infringes the right of commercial renting of the producer of the film. A now resells the
cassette to B without a license from the owner of the copyright in the film. A has infringed the right of producer. B
visits America. and buys a lawful copy of a film for himself. B, then makes copies of the film for his relatives back at
home to sell it to them at a lower price. He brings all the cassettes to India. B has infringed the copyright of
producer of the film with respect to the copies made by him. 85
Traditionally, this distribution right extended only to initial circulation of copies of a work. 86 After the first sale of a
particular copy, the distribution right was said to be "exhausted" in relation to that copy. Subsequent purchasers
were free to resell or otherwise dispose it. Advances in reproduction technologies facilitated reproduction of cheap
copies of motion pictures, phonograms and computer software. These were then, given on hire which resulted in
minimizing the right of reproduction of authors. Thus, the copyright owners mounted pressure for enactment of
exclusive rental rights for the owners of copyright, which create an exception to the first sale or exhaustion doctrine.
87
Under the Berne Convention the public distribution right was given only in case of cinematograph work 88 and the
rental right was not provided for. The WCT, 1996 and TRIPS, 1994 not only extended the public distribution right to
computer programmes and works embodied in phonograms but also gave commercial rental rights to authors of
computer programmes, cinematograph works and works embodied in phonograms. The WCT, 1996 and TRIPS,
1994 diverge in their treatment of rental right in phonograms. 89 The copyright owners can now not only use the
rental right to entirely bar rental of copies but can also use the rental right as a source of revenue for them.
The rental right did not find universal favour with the countries, therefore, the WCT carved out specially tailored
exceptions from its rental right. In case of computer programmes, the rental right need not apply "where the
programme itself is not the essential object of the rental." 90 The Indian Copyright Act, 1957, has provided a similar
exception.
Example : Anand gives his car on hire to Pradeep. The car has a number of digitally programmed chips to control
important functions. Anand does not have rental right with respect to the computer programmes as they form a part
of the car, which he gives on hire. Computer programmes of the car are not the essential object of the rental. Anand
has not infringed any right of the copyright owner of computer programme by giving the car on hire.
(o) Resale share right in original copies
The Copyright (Amendment) Act, 1994 inserted section 53A entitled "resale share right in original work". This right
is in addition to the exclusive economic rights listed under section 14 of the Act. If an original copy of a painting,
sculpture or drawing or of the original manuscript of a literary or dramatic or musical work is resold for more than
rupees ten thousand by the possessor of such work then he has to share the price of resale with the author if he
was also the first owner of copyright. This right subsists in the author and his legal heirs for the duration for which
copyright subsists in them. The resale share shall in no circumstances exceed ten percent of the resale price. The
parties themselves may fix the share or the Copyright Board may do so. The Copyright Board may fix different
shares for different kinds of works but cannot exceed ten percent of the resale price. If any dispute arises regarding
the right then it shall be referred to the Copyright Board whose decision shall be final.
(p) Infringement by rogue websites
In Super Cassette Industries v . Myspace Inc. and anr . 91 The plaintiff was the owner of copyright in repertoire of
songs, cinematograph films and sound recordings. The defendant was a social networking and entertainment
website which offered a variety of entertainment applications including sharing, viewing of music, images,
cinematograph films, having its base in USA. The website provided country-specific content. The plaintiff alleged
that free sharing of music and films provided by Myspace.com affected the business of the plaintiff and also
resulted in the violation of their copyright as they had not taken licence to exhibit the infringing material on their
website from the plaintiff. The plaintiff further contended that the acts of providing the space over the Internet and
thereafter continuously doing the same even after coming to know about the plaintiff’s proprietary interests
amounted to ‘authorization’ as the defendants were aware that the space was going to be used for infringement
purposes.
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The court held, the acts of defendants of providing the space on the Internet or webspace for profit are prima facie
infringing in nature. The provision of section 51 (a)(i) and section 51 (a)(ii) of the Act were disjunctive in nature in as
much as the word "or" between the two makes it clear that even on satisfaction of one provision, there would be an
infringement of copyright. The infringement by way of authorization would fall within section 51 (a) (i) read with
section 14 of the Act as against the act of permitting the place for profit which is separately provided under section
51 (a)(ii) of the Act.
The acts of the defendants whereby they were offering the space over the Internet, getting the works uploaded
through users, thereafter saving in their own database with the limited licence to add, amend, or delete the content
and thereafter communicating the said work to the public by providing some advertisements alongside the work or
in the alternative gaining advertisements or sponsorship on the said basis thereafter would prima facie tantamount
to permitting the place profit for infringement as envisaged under section 51 (a)(ii) of the Act.
The said acts of the defendants were certainly falling within the realm of an infringement under section 51 (a) (ii) of
the Act. This is due to the reason that the defendants are permitting the place which is place at webspace to the
users at large. The said place is not for the profit of the users only but also for the private profits of gains of the
defendants.
The court then made observations with respect to the probable effect of amendments under the Information
Technology Act, 2000 (as amended in 2009) on the remedies prescribed under CA, 1957 as the defendants
contended that the IT Act is applicable to them and not the CA, 1957. Manmohan Singh, J. made a very lucid
analysis of provisions under both the Acts and specially sections 79 and 81 of the IT Act, 2000 and thereafter held
that:
There is no impact of provisions of Section 79 of IT Act (as amended in 2009) on the copyright infringement relating to
internet wrongs where intermediaries are involved and the said provision cannot curtail the rights of the copyright owner by
operation of proviso of Section 81 which carves out an exception for cases relating to copyright or patent infringement.
The third very significant aspect taken up by the court was with regard to the impact of provisions of Digital
Millennium Copyright Act of US (DMCA) and other English Law. The court very firmly stated that there is no
corresponding law in India which is in pari materia to that of DMCA. Our existing law of copyright does not provide
any safe harbors and in fact the later enactment IT Act, 2000 (as amended in 2009) speaks otherwise. The
adoption and drawing from DMCA would mean adding provisions into the statute when the existing law says
otherwise. Further, the provisions of UK Act of 1956 and CDPA Act, 1988 are also not the same as the Indian CR
Act, 1957.
Fourth, the court held that we are not bound by the Article 8 of WIPO Copyright Treaty as it has not been ratified by
India.
3. MORAL RIGHTS
(a) An International perspective
Moral rights have their origin in the " droit moral " enjoyed by authors in various European countries, notably
France, Germany, and Italy. It refers collectively to a number of rights, which are more of a personal than
commercial character. 92 According to Article 6 bis of the Berne Convention the member countries are required to
grant to authors: 1) The right to claim authorship of the work and 2) The right to object to any distortion, mutilation
or other modification of, or other derogatory action in relation to the work which would be prejudicial to the author’s
honour or reputation. These rights remain with the author even after he has transferred his economic rights.
The TRIPS Agreement provides that members shall not have rights or obligations under this Agreement in respect
of the rights conferred under Article 6 bis of the Berne Convention specifying moral rights or the rights derived
therefrom. 93 The TRIPS Agreement does not specify which are the rights "derived" from Article 6 bis of the Berne
Convention. It is believed that the right provided in Article 10 (3) of the Berne Convention may be such a right. 94
Under paragraphs (1) and (2) of that Article, the author may not oppose, under certain circumstances, that
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quotations be made without his authorization from his work or that his work be used without his authorization for
illustration in the course of teaching. It is in respect of these so called "free uses" that Article 10 (3) of the Berne
Convention provides that mention must be made of the name of the author. In other words, it provides that the right
of paternity be respected. It would, therefore, mean that the TRIPS Agreement excludes the application of Article 10
(3) of the Berne Convention, that is, that, under the TRIPS Agreement the said quotations and illustrations need not
mention the name of the author. The same applies to Article IV (3) of the Appendix to the Berne Convention which
provides that,
The name of the author shall be indicated on all copies of the translation or reproduction published under a license granted
under Article II or Article III.
Furthermore it would seem that the TRIPS Agreement also excludes the application of Article 11 bis (2) of the
Berne Convention to the extent that the latter provides that " the conditions that may be determined under Article 11
bis (2) shall not in any circumstances be prejudicial to the moral rights of the author."
It is important to note that under Article2, paragraph 2, of the TRIPS Agreement "Nothing in Parts I to IV of this
Agreement [and Article 9 in Part II] shall derogate from existing obligations that Members may have to each other
underthe Berne Convention..." Consequently, it would seem that a member of WTO which is not party to the Berne
Convention will not have to apply the provisions of the Berne Convention on moral rights and rights derived
therefrom, while a member of WTO which is party to the Berne Convention will have to apply those provisions, not
only with respect to nationals of members of WTO which are party to the Berne Convention, but also with respect to
nationals of members of WTO which are not party to the Berne Convention. Right of paternity also assumes that the
right to reproduce should only vest with the author.
(b) Moral rights in India
In India moral rights are referred to as special rights under section 57 of the Act. It reads:
95[(1) 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—
(a) to claim authorship of the work, and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work
96[* * *] if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:
Provided that 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.
Explanation. 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.
(2) The right conferred upon an author of a work by sub-section (1), 97[* * *] may be exercised by the legal representatives
of the author.
In Manu Bhandari v. Kala Vikas Pictures Ltd. 98 the plaintiff had written a novel "Aap ka Bunty" and assigned the
filming rights to the defendant who made the film "Samay ki Dhara". The plaintiff had great reputation in the world of
Hindi literature and had acquired a special status for the treatment of contemporary social and psychological issues.
The novel had been translated in a dozen Indian and foreign languages, published serial wise in a weekly
magazine, and prescribed for graduate and post-graduate courses in many universities.
The plaintiff alleged that the characters and theme is mutilated through vulgar dialogues in the film. The court held
that since there is a change in the medium from literary to cinematograph film, some changes are inevitable.
However, the court ordered deletion of certain dialogues and change in certain scenes keeping in mind the honour
and reputation of the author of the novel.
The court observed that the hallmark of any culture is excellence of arts and literature. Quality of creative genius of
artists and authors determine the maturity and vitality of any culture. Art needs healthy environment and adequate
protection. The protection which law offers is thus not the protection of the artist or author alone. Enrichment of
culture is of vital interest to each society. Law protects this social interest.Section 57 of the Copyright Act is one
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such example of legal protection. Section 57 lifts authors’ status beyond the material gains of copyright and gives it
a special status.
Section 57 falls in Chapter XII of the act concerning civil remedies. Section 55 provides for certain remedies where
there is infringement of copyright. Section 56 provides for protection of separate rights comprising the copyright in
any work. Then comes section 57, providing for authors’ special rights, and the remedies for violation of those
rights. There is a statutory recognition of the intellectual property of the author and special care with which the
intellectual property is protected. Under section 57, the author shall have a right to claim the authorship of the work.
He has also a right to restrain the infringement or to claim damages for the infringement. These rights are
independent of author’s copyright and the remedies open to the author under section 55. The special protection of
the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed
"even after the assignment either wholly or partially of the said copyright." Section 57 thus clearly overrides the
terms of the contract of assignment of the copyright. To put it differently, the contract of assignment would be read
subject to the provisions of section 57 and the terms of contract cannot negate the special rights and remedies
guaranteed by section 57. The contract of assignment will have to be so construed as to be consistent with section
57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent
with the provisions of section 57.
In Amar Nath Sehgal v. Union of India 99 the plaintiff in 1957 created a bronze mural for one of the walls of Vigyan
Bhawan at the request of the Government of India. The copyright in the artistic work, the bronze mural was
assigned to the Government. Later, in 1979, Vigyan Bhawan was renovated whereby the 140 feet long and 40 feet
in height bronze mural was removed and kept in the store in a dismantled and damaged condition. The plaintiff
contended that his moral right of integrity was infringed by the defendant.
The court held that the moral rights of the author are the soul of his works. The author has a right to preserve,
protect and nurture his creations through his moral rights. It further held that the destruction of work is the extreme
form of mutilation. The destruction of the mural reduced the volume of the author’s creative corpus, thus affecting
his reputation prejudicially. Sehgal’s work had attained the status of modern national treasure and had become the
cultural heritage of the nation. The court ran through various international conventions that stressed the need for
respecting, protecting and preserving the cultural heritage and rights of the people.
The Delhi High Court held that plaintiff had a cause to maintain action under section 57 notwithstanding that the
copyright in the mural was assigned to the defendant. It not only violated the plaintiff’s moral right of integrity in the
mural but had also violated the integrity of the work in relation to the cultural heritage of the nation.
(c) Moral right of divulgation
Many countries also recognize a moral right of divulgation, or disclosure 100 to the economic right of first publication.
As a rule, common law countries do not extend a discrete moral right of disclosure. 101 At one time common law
copyright, a doctrine deeply rooted in natural rights philosophy, anchored the right of first publication but, since its
virtually complete pre-emption in the common law world, the right has occupied the interstices of the statutory
economic rights. 102
Only a small number of countries like France, Germany, Italy and Spain, all in the civil law world, grant authors an
explicit moral right to withdraw their work from circulation, typically in situations when the work no longer accurately
reflects their views. 103 In India no such right is provided. On the other hand, section 31 provides for compulsory
licence in case of work withheld from public.
The WPPT, 1996 has given moral rights to performers also. 104 The amendment Act of 2012 has introduced a new
provision section 38B which enumerates moral rights of performers though India is still not a member of WCT and
WPPT. The two rights namely, the right of identification as a performer of the performance and the right of integrity,
are on the same lines as provided by the WPPT.
4. NEIGHBOURING RIGHTS OR RELATED RIGHTS

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The protection of author’s interests does not consist merely in preventing the use of their creations and cannot be
limited to prohibiting infringements of the rights that law affords to the authors. Their works are intended to be made
available to the public through certain intermediaries like performers. In previous years, the performance of a
dramatist, actor, musician ended with the play or concert in which they performed. But today, with the advent of
photograph, radio, motion picture, television, videogram and satellite, the performances can be fixed on a variety of
materials, capable of virtually unlimited and repeated reproductions and use before an equally unlimited audience
that go beyond the national frontiers. The development of broadcasting and television has similar effects.
These technological innovations made it possible to reproduce individual performances by performing artists and to
use them without their presence and without the users being obliged to reach an agreement with them. This led to a
reduction in the number of live performances. This created " technological unemployment " 105 among professional
artists, thus giving a new dimension to the protection of the interests of performers.
Likewise by the very same logic, the need for protection of producers of phonograms and broadcasting
organizations was also recognized. The notion of ‘neighbouring rights’ or ‘related rights’ is understood as meaning
rights granted in an increasing number of countries to protect the interests of performers, producers of phonograms
and broadcasting organizations in relation to their activities in connection with public use of the authors works, all
kinds of artists’ presentations or communications to public. The most important categories are : rights of performers
106 to prevent fixation and direct broadcasting or communication to the public of their performance without their
consent; the rights of producers of phonograms 107 to authorize or prohibit reproduction of their phonograms and the
import and distribution of unauthorized duplicates thereof; the right of broadcasting organization to authorize or
prohibit rebroadcast, fixation and reproduction of their broadcasts.
Example : If Doordarshan has right to telecast all cricket matches organized in India by the BCCI upto September
2004. A private television channel X shows these matches on their channel. The channel X has infringed the
broadcasting rights of Prasar Bharati, that is, Doordarshan.
Points to Remember
(1) Copyright is a bundle of rights consisting of :

(i) Exclusive Economic Rights [ section 14]
(ii) Moral rights [ section 57]
(iiii) Neighbouring Rights [section 37, 38, 38A, 38B]
(2) Eight Exclusive Economic rights are given to the authors of literary, dramatic and musical works.
(3) The reproduction right includes the right to store in any medium by electronic means. In US it has three
requirements: tangibility, fixation and intelligibility. In India these requirements are read by courts by a
combined reading of sections 13,14, 52 (1) (b) and (c).
(4) Non commercial public libraries can store the work in electronic medium without the permission of the
owner only if the library already possessed a non digital copy of the work This is provided by new clause
(n) to section 52 inserted in 2012. In other situations it will have to take the authorization from the owner of
the copyright.
(5) Reproduction of an earlier idea is not actionable as idea is not protected under copyright law. But the Delhi
High Court held that the defendant is not permitted to express that idea in the same form and the same
manner in which it had been done by the plaintiff.
(6) Counterfeiting and piracy are both deemed to be infringement of the right of reproduction of the authors.
The most common examples of piracy are loading of unlicensed and unauthorized computer programmes
on the computers, duplicates of books and films sold at lower prices than the original etc. To prevent or
curb piracy the courts have started issuing Anton Piller, John Doe and Mareva injunctions more liberally
than before. They have also started imposing punitive damages on plaintiffs.
(7) Certain tests have been evolved by the judiciary to ascertain whether reproduction of the entire work or
substantial work has been done by the defendant. These tests include:
Page 23 of 27
(i) Totality of impression test specially in cases of infringement of stories or whenever there is a change of
the medium.
(ii) Lay hearer or untrained ear test specially in cases of infringement of musical work
(iii) Feeling and artistic character test in case of artistic work
(iv) Sweat of the brow test or test of skill, labour and judgment. This test is applied when the defendant
uses the work of plaintiff as the starting point. The courts have held that the end product shall be
different from the raw material for example in cases of adaptation, abridgement, guide books,
compilations, framing of question papers, etc.
(v) Minimum of creativity test was applied by the Supreme Court where the defendant compiled copy-
edited judgments of the Supreme Court. The judgments of courts are not protected by copyright and
they fall in public domain by virtue of section 52 (i)(q)(iv).
(vi) Abstraction, filtration and comparison test is applied in case of computer programmes.
(8) The exclusive economic right to issue copies of the work to the public not being copies already in
circulation is called the moral right of divulgation in some countries. The Delhi High Court in John Wiley’s
case held that selling of low priced edition books (meant for India and neighbouring countries) to US
customers results in violation of right to issue copies of the owner of copyright.
(9) Public performance right applies only to performance in public, it has no application to private
performances.
(10) Communication to the public means making any work or performance available for being seen or heard or
otherwise enjoyed by the public directly or by 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 so made available. Showing of
films over cable TV without proper authorization amounts to infringement of copyright. [ section 2 (ff)]
(11) Hoteliers playing music by live or other means or by mechanical devices within its premises have to take
license from copyright owners.
(12) A literary, dramatic or musical work may be reproduced in the form of cinematograph films or sound
recording only with a license from copyright owner. [ section 14 (a)(iv)].
(13) The author of literary, dramatic or musical work has a right to make an adaptation or translation of the
work. [ section 14 (a)(iv)].
(14) Author of cinematograph film, sound recording or a computer programme has the right to make a copy of
his work. He has the right to sell or give on commercial rental, a copy of his work. He also has a right to
communicate it to the public. [ section 14 (a)(iii), (d) and (e)]
(15) Bombay High Court has held that right to make a copy means right to make a physical copy.
(16) Resale share right is provided in case of painting, sculpture or drawing or original manuscript of a literary or
dramatic or musical work. If the possessor of original copy of any of the above stated works is sold for
more than rupees ten thousand then he has to share upto ten percent of resale price with the author if
author is also the first owner of copyright. [section 53A]
(17) The Delhi High Court held that if any website provides space on the Internet or webspace for profit for
infringement purposes then infringement takes place under section 51 (a)(i). Section 51 (a)(i) and (ii) are
disjunctive in nature.
(18) The two moral rights or special rights of the author are:
(i) Right to claim authorship in work (Paternity right).
(ii) Right to object to any distortion, mutilation or other modification in relation to work which would be
prejudicial to the author’s honor and reputation (Integrity right).
(19) Even a contract or an assignment cannot negate the special rights and remedies guaranteed by section
57.
(20) In Amar Nath Sehgal case the court held that destruction of the mural was an extreme form of mutilation.
Page 24 of 27
1 John Salmond, Jurisprudence (London: Sweet and Maxwell, 12th ed., by P.J. Fitzgerald, 1966).
2 Subs. by Act 49 of 1999, section 3, for sub-clause (ii) (w.e.f. 15-1-2000).
3 Subs. by Act 27 of 2012, section 5 (w.e.f. 21-6-2012.
4 Subs. by Act 27 of 2012, section 5, for sub-clause (i) and (ii) (w.e.f. 21-6-2012).
6 Subs. by Act 38 of 1994, section 16, for sub-clause (ii) (w.e.f. 10-5-1995).
7 The words "except for the private and domestic use of the importer" omitted by Act 65 of 1984, section 3 (w.e.f. 8-10-
1984).
8 Subs. by Act 38 of 1994, section 16, for the proviso (w.e.f. 10-5-1995.
9 Subs. by Act 38 of 1994, section 2, for clause (m) (w.e.f. 10-5-1995).
10 Section 14 (c)(i).
11 The Fashion Design Council of India has now working on a plan to include fashion designing under copyright law. See,
Vinod Nair, Copyright Laws are in fashion! , Delhi Times, Times of India 20.01.2004.
12 Melville B. Nimmer and David Nimmer, Nimmer on Copyright (Lexis Nexis, 2001) Para 8.02 (A).
13 Circoran Montgomery v . Ward & Co . 121 D. 2d. 572 (9th Cir. 1941); Kreymborg v. Durante , 21 U.S.P.O. 557
(S.D.N.Y.) 1934.
14 United States Code, Title 17, Article 101 (definition of "fixed").
15 Although projection on a screen does not infringe the reproduction right, it may infringe the performance or display right,
See Nimmer supra note 4. See clauses (b) and (c) to section 52 (1) of the Copyright Act inserted by the amendment of
2012.
16 See United States Code, 1976, Title 17, Article 101; Jeffrey M. Samuels, A Device Machine or E-process is one now
Known or Later Developed , Patent Trade Mark and Copyright Laws (The Bureau of National Affairs, Inc., Washington,
D.C. 2001) p. 279.
17 William Elecs. Inc . v. Artic International , 685 f. 2d 870 (3rd Cir. 1982).
18 International Intellectual Property Alliance, 2005 Special 301 Report: India, p. 124.
19 (1963) Ch. D. 587.
20 Ibid ., at p 614.
21 101 US 99 (1879). Also see Halsbury’s Laws of England Volume 9 (4th ed.) p. 585; CherianP. Joseph v. Prabhakaran
AIR 1967 Ken 234 ; (1854) 4 HLC 815; Donoghue v. Allied Newspapers Ltd . (1937) All ER 503; Hollinrake v. Truswel l
[1894] 3 Ch. 420. Mccrum v. Eisner, 1918 L.J. Ch. 99.
22 2012 (49) PTC 346 (Del).
23 See," Idea Concept Dichotomy In Confidential Agreements" in Chapter IV supra.
24 Amarchand Mangaldas, FICCI, Frames 2002, The Entertainment Law Book Global Convention on Business
Environment (2002), p. 32. See also Drive against piracy to be intensified , Times of India , 10th October 2002—"The
offences of IPR cause a loss of several crores to the companies manufacturing original products. This year Delhi Police
confiscated pirated computer software worth Rs. 40 crore, MP3 discs worth Rs. 20 lakh and also seized pirated video
compact discs".
25 Adobe Systems, Inc . v P.Bhoominathan 2009 (39) PTC 658 (Del).
26 JT 1996 (8) SC 282 [LNIND 1996 SC 1280].
27 2012 (51) PTC 205 (Del), also see, Microsoft Corporation v. Dhiren Gopal , 2010 (42) PTC 1 (Del).
28 2008 (36) PTC 697 (Del).
29 2008 (36) PTC 598 (Del).
30 2011 (46) PTC 335 (Del).
31 2011 (46) PTC 38 (Del).
32 2012 (51) PTC 419 (Del).
33 2009 (41) PTC 545 (Del).
Page 25 of 27
34 Gerald Dworkin and Richard D. Taylor, Blackstone’s Guide to the Copyright, Patents and Designs Act, 1988
(Blackstone Press Ltd. 1989) p. 56.
35 2012 (50) PTC 316 (Del).
36 Catnic Components Ltd. v . Hill & Smith Ltd . (1982) R.P.C. 183; Warwick Films Productions Ltd . v. Eisinger (1969) Ch.
508.
37 Ibid.
38 Corelli v. Gray (1913) 30 T.L.R. 116(C.A.) Kelly v. Cinema House (1928-1935) Mac. C.C. 362; Vane v. Famous Players
(1928-1935) Mac C.C. 6.
39 Civic Chandaran v. Ammini Amma , 1996 PTC 670 (Ker).
40 (40) PTC 78 (Bom).
41 2011 (45) PTC 393 (Mad) DB.
42 See Alka Chawla, Intellectual Property Rights , Annual Survey of Indian Law (2011) p. 560.
43 (1916) 32 TLR 349; Raja Pocket Books v. Radha Pocket Books 1997 PTC 84 (Del).
44 Brigid Folcy Ltd . v. Ellott (1982) RPC 433.
45 See Chapter I supra .
46 Ladas and Parry, Guide to Statutory Protection for Computer Software in United States ,
http://www.ladas.com/Patents/Computer/Copyright.USA.html accessed on 4 February, 2013.
47 230 U.S.P.Q. 481 (3rd Circuit 1986); In Apple Computer Inc. v. Mackintosh Computers Ltd. 44 D.L.R. (4th) at p. 74 the
court held that "it was an infringement of the copyright in a literary work to reproduce the work in a computer readable
form, such as on magnetic tape etc". In UK the Copyright (Computer Software) Amendment Act, 1985 provides that
references in 1956 Act to the reproduction of any work in a material form should include references to the storage of
that work in computer.
48 23 U.S.P.Q. 2d 1241 (1992).
49 174 U.S.P.Q. 84 2nd Cir. (1930).
50 26 U.SP.Q. 2d. 1458 (1993); See the critical discussion on the case in view of digital technology in Chapter IX infra .
51 See, e.g., France, Intellectual Property Code, Art. L121-2; Germany, Copyright Act, Art. 12 (2).
52 2010 (44) PTC 675 (Del.). The case has been heavily criticized in Ashwani Kr Bansal, Intellectual Property Rights:
Judicial Law Making with Foreign Bias, 2, Journal of Law Teachers of India-II (2011) p. 1.
53 . Rome Convention, 1961; WPPT, 1996.
54 . For example, The United Kingdom.
55 . For example, India under fair dealing doctrine, see section 52 (k), (za), also see, Devender Kumar Ramachandra
Dwivedi v. State of Gujarat 2010 (43) PTC 303 (Guj.).
56 . 2011 (45) PTC 402 (Del.).
57 . See section 2 (ff) of CA, 1957.
58 . See Copyright Act, 1957, section 2 (ff).
59 . WCT, Article 8.
60 . 2012 (49) PTC 362 (Del).
61 . AIR 1985 Bom 229 [LNIND 1984 BOM 337]. Also see "Actual Events" in Chapter IV.
62 . 2010 (44) PTC 647 (Bom.).
63 . It is humbly stated that decision is given without any reference to the provisions of Copyright Act. Therefore, it is not
clear whether the infringement is of section 14 (1)(a) dealing with literary work or section 14 (1) (d) dealing with
cinematograph films. No reference has also been made to section 13 (3) (a) which states that copyright shall not
subsist in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work.
64 . 2011 (47) PTC 392 (Del.); decided on 28.07.2011.
65 . Indian Performing Rights Society Ltd. v. Eastern Indian Motion Pictures Association (1977) 2 SCC 820 [LNIND 1977
SC 128]; PTC (Suppl.) (1) 877 (SC).
66 . 2011 (47) PTC 587 (Bom.).
Page 26 of 27
67 . The details regarding the section are given in Chapter VII.

68 . Berne Convention, 1971 Text , Article 8; sections 14 (a)(v), 14 (b).
69 . Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works : 1886 –1986 (1987) p. 384.
70 . Berne Convention, (Paris Act, 1971) Appendix, Article 2; See section 32, Copyright Act, 1957.
71 . a)section 14 ((vi). In UK also it is treated as a discreet economic right, section 16 (1) (e) CDPA, 1988.
72 . France, Intellectual Property Code Article 1. 122 –1, 122 – 4.
73 . Berne Convention, 1971, Article 14 (3).
74 . Section 14 (d)(i).
75 . Section 14 (e)(i).
76 . 2003 (27) PTC 81 (Bom).
77 . 1996 FSR 394.
78 . 1985 (5) IPR 203.
79 . 1981 RPC 283.
80 . Supra note 76.
81 . WIPO, WIPO Guide to Berne Convention , Para 9-4 as quoted in S.M. Stewart supra note 35 atp. 62.
82 . Section 18 of the United Kingdom Copyright, Designs and Patents Act, 1988; section 106 (3) of Title 17, United States
Code, 1976.
83 . a (ii), section 14 b (i) and c (ii).
84 . d), section 14 ((e).
85 . Section 51 (d 14 (d)(ii) of the Copyright Act; Also see Export-Import Policy which specifically prohibits import of any
unauthorized/pirated film. Such a prohibited import amounts to an act of smuggling under the Customs Act, 1962.
86 . Berne Convention does not provide for rental right or right to sell or give on hire copies of work.
87 . WIPO, Normative Activities of WIPO in the Field of Copyright, Sessions from 1992 to 1996 leading to adoption of
WIPO Copyright Treaty, 1996.
88 . See Article 14 bis of Berne Convention.
89 . Ibid .
90 . WCT, Article 7 (2).
91 . 2011 (47) PTC 49 (Del.).
92 . Copinger and Skone James , Copinger on Copyright (London: Sweet and Maxwell, 13 ed. 1991) p. 774; W.R. Cornish,
Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (Sweet and Maxwell 2nd ed., 1993) p. 264;
S.M. Stewart and Hamish Sandison, International Copyright and Neighbouring Rights , 2nd edn. (1989), p. 109.
93 . TRIPS Article 9 para (1).
94 . WIPO, Implications of the TRIPS Agreement on Treaties Administered by WIPO , WIPO Publication No. 464 (E)
(1997) pp. 13, 14.
95 . Subs. by Act 38 of 1994, section 20, for sub-section (1) (w.e.f. 10-5-1995).
96 . The words "which is done before the expiration of the term of copyright" omitted by Act 27 of 2012, section 36 (w.e.f.
21-6-2012).
97 . The words "other than the right to claim authorship of the work" omitted by Act 27 of 2012, section 36 (w.e.f. 21-6-
2012).
98 . AIR 1987 Del. 13 [LNIND 1986 DEL 270].
99 . 2005 (30) PTC 253 (Del.) Also see Binny Kalra, Copyright in the Courts: How moral rights won the battle of the mural ,
http://www.wipo.int/wipo_magazine/en/2007/02/article_0001.html as accessed on 5 February, 2013.
100 . See for example France, Intellectual Property Code, Art. L. 121-2; See also Germany, Copyright Act, Article 12 (2).
101 . See S.M. Steward at p. 289, supra note 84.
Page 27 of 27
102 . The Indian Copyright Act’s exclusive right to issue copies of work to the public effectively gives an author the right to
control the first publication of his work and thus closely approximates the right of disclosure under continental moral
right doctrine.
103 . See Adolf Pietz, Legal Principles of Moral Rights in Civil Law Countries, II Copyright Reporter (1983) pp.1-4.
104 . WPPT, 1996, Article 5: "Independently of a performer’s economic rights, and even after the transfer of those rights,
the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to
claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use
of the performances, and to object to any distortion, mutilation or other modification of his performances that would be
prejudicial to his reputation. The rights granted to a performer in accordance with paragraph (1) shall, after his death,
be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions
authorized by the legislation of the Contracting Party where protection is claimed..".
105 . WIPO, Intellectual Property Reading Material , (1998) p. 14.
106 . TRIPS, 1994, Article 14; Rome Convention, 1961, Article 7; WPPT, 1996, Article 5–10; section 38.
107 . TRIPS, 1994, Article 14; Rome Convention, 1961, Article 10; WPPT, 1996, Article 11–14; e)section 14 (.
End of Document
CHAPTER VII - Limitations to the Copyright
ALKA CHAWLA
Chapter VII Limitations to the Copyright
1. Introduction
Copyright is not an absolute right, it is a right with limitations. There are three statutory limitations on copyright in
the Copyright Act, 1957:
A) Temporal Limitation [sections 22-29]
B) Non-voluntary Licences [sections 31-32B]
C) Fair Dealing/Permitted Acts [section 52)]
A. TEMPORAL LIMITATION
Copyright does not continue for an indefinite period. The law provides for a period of time, a duration for which the
rights of a copyright owner exist and thereafter the work falls in public domain. There is no universal copyright term
even among the countries of the Berne Union. The convention provides a floor limit of life term of author plus 50
years. The national governments are free to provide a longer term of protection. In Europe and USA the period of
protection of works is life time of the author plus 70 years. The rules for determining the period or duration for
subsistence of copyright are given in Chapter V of the Act of 1957. The rules are as follows:
(a) Term of copyright in published literary, dramatic, musical and artistic works [Section 22]
If a literary, dramatic, musical or an artistic work published within the lifetime of the author then the period is until
sixty years from the beginning of the calendar year next following the year in which the author dies.
Example : A writes a poem in 1970. The poem published in 1971. A dies on 30th September, 1972. The sixty years
will be counted from 1st January, 1973 i.e. the calendar year next following the year in which the author dies. The
copyright in the work therefore, continues until 1st January, 2033. Thereafter the work will fall in public domain.
(b) Term of copyright in anonymous and pseudonymous literary, dramatic, musical or artistic work [Section
23]
The duration of copyright in these works is explained with the help of examples:
Example : Anonymous or pseudonymous work is published in 1970. Sixty years will be counted from 1st January,
1971 i.e. copyright will subsist until 1st January, 2031. the relevant date is the date of publication of work.
Example: Anonymous or pseudonymous work is published in 1970. The identity of the author is disclosed in 1980.
The author dies on 30th September, 1982. Sixty years will be counted from 1st January, 1983 i.e. copyright subsists
until 1st January, 2043. The protection is given for a longer duration than in the first situation. If identity of author is
known, the relevant date is the day of his death.
Example : If the anonymous work is a work of joint authorship. Work is published in 1970. Identity of one of the
authors is disclosed in 1980 and of the other is disclosed in 1982. One of them dies in 1990 and the other dies in
1992. Sixty years will be counted from 1st January, 1993. The copyright will subsist until 1st January, 2053.This is
still a longer duration than the second situation.
Page 2 of 25
Example: If the work is a pseudonymous work of joint authorship. The term of the copyright would be until the expiry
of sixty years beginning from the calendar year following the death of the "disclosed author" or the death of the "last
of the disclosed authors."
The Explanation to section 23 states that the identity of an author shall be deemed to have been disclosed, if either
the identity of the author is disclosed publicly by both the author and the publisher or is otherwise established to the
satisfaction of the Copyright Board by that author.
(c) Term of copyright in posthumously published work, which includes literary dramatic, musical work or
adaptation of any of these works or engravings [Section 24]
The copyright subsists until sixty years from the beginning of the calendar year next following the year in which the
work is first published.
Example : B, an author completes writing of the novel in 1970. He dies on 30th September, 1972. Thereafter, his
heirs publish his work in January, 1973. The sixty years will begin from 1st January, 1974 and therefore copyright
will subsist until 1st January, 2034.
In this section the work is deemed to be published if:

(a) it has been performed in public or
(b) if any sound recording made in respect of the work have been sold to the public or have been offered for
sale to the public.
(d) Term of copyright in cinematograph films [Section 26], sound recordings [Section 27]
Copyright in cinematograph films or sound recordings subsists until sixty years from the beginning of the calendar
year next following the year in which they are respectively published.
Example : If a cinematograph film or sound recording is published on 2nd August, 1970 then sixty years begin from
1st January, 1971 and the copyright will subsist until January 1, 2031.
This provision seems to be discriminating the producer of the film and sound recording against the author of literary,
dramatic, musical and artistic works. Producer shares the entire legal and financial risk and burden of the film. The
majority of the employment in the film industry is due to the producers of films. It is, therefore, unreasonable,
according to the author, to give protection for a lesser period of time to the producer. It may happen that a young
producer may lose the copyright in his film during his lifetime specially in contemporary India where the producers
are young and the longevity of life is increasing. The discrimination can be removed by providing the term to be
"sixty years from the beginning of the next calendar year in which the producer dies."
According to section 3, "Publication means making a work available to the public by issue of copies or by
communicating the work to the public".
If any question arises whether a work has been published or as to the date on which a work was published for the
purposes of determining the term of copyright, it shall be referred to the Copyright Board constituted under section
11. The decision of the Board is final according to section 6 (a). If the Board is of the opinion that the issue of copies
or communication to the public is of an insignificant nature, it shall not be deemed to be publication.
(e) Term of copyright in photographs [Section 25]
Section 25 was deleted by the Amendment of 2012 whereby the term of sixty years was counted from the date of
publication. After 2012, the term of protection is the same as a literary work.
(f) Term of copyright where government or public undertaking is the first owner of copyright [Sections 28,
28A]
Where government or public undertaking is the first owner of copyright therein then sixty years will be counted from
1st January of the calendar year next following the year in which the work is first published.
Page 3 of 25
(g) Term of copyright in works of international organizations [Section 29]
Copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the
work is first published.
B. NON-VOLUNTARY LICENCES (EQUITABLE REMUNERATION)
The author or the copyright owner has exclusive rights in his intellectual creations. He alone has the authority to
grant a licence with respect to his work. Where the licence is granted by an agent, it will be invalid unless the agent
either had authority to grant it or was held out by the person entitled to grant it as having authority to grant it. 1
Section 30 deals with licences by owners of copyright. The section reads:
The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may
grant any interest in the right by licence in 2[writing by him] or by his duly authorized agent:
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when
the work comes into existence.
Explanation.—Where a person to whom a licence relating to copyright in any future work is granted under this
section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to
the contrary in the licence, be entitled to the benefit of the licence.
Prior to 2012 Amendment, the licence deed had to be signed by the owner or prospective owner as the case may
be. The requirement of signing has now been dispensed with.
There are however, certain statutory situations where the exclusive right to authorize a particular act is substituted
by a right to equitable remuneration. This right to equitable remuneration distinguishes compulsory licences from
fair dealing of the work though both result from the operation of law and not from the exclusive right of the copyright
owner to authorize particular acts.
There are two forms of non-voluntary licensing systems, which are often referred to as compulsory licences in the
wider sense:
(a) Statutory licence: It is a licence under which the protected works can be freely used on one condition that
the user paid a fee, fixed by the competent authority, to a body designated by that authority and distributed
in accordance with the rules established by the latter. 3
(b) Compulsory licence: It is a licence requiring the copyright owner to grant the necessary authorization. This
does not deprive the copyright owner from negotiating the terms of the authorization. If no amicable
agreement were reached between the parties then administrative or judicial authorities would fix the
amount of remuneration.
In strictly economic terms, these arrangements reflect the legislator’s judgment that to extend an exclusive right
would hamper socially important uses, typically because of the high transaction cost of negotiating a licence, but
that to make the use entirely free would seriously impair needed rewards for the author. 4 The equitable
remuneration is aimed at approximating the sum a reasonable licensee would in good faith offer and a reasonable
copyright owner would in good faith accept.
The Act of 1957 provides for three kinds of non-voluntary licences:

(a) Compulsory Licences
(i) Compulsory licence in works withheld from public (section 31).
(ii) Compulsory licence in unpublished or published works (section 31A).
(iii) Compulsory licence for benefit of the disabled (section 31B).
(b) Statutory Licences
(i) Statutory licence for cover versions (section 31C).
(ii) Statutory licence for broadcasting of literary and musical works and sound recording (section 31D).
(c) Non Voluntary License after expiry of prescribed periods
Page 4 of 25
(i) Licence to produce and publish translations (section 32).

(ii) Licence to reproduce and publish works for certain purposes (section 32A).
(a) Compulsory Licences
(i) Compulsory licence in works withheld from public (Section 31)
An absolute freedom vests with the author of a work to publish or not to publish his work. In many civil law countries
this is called the moral right of divulgation. By having this right the author can control the terms and conditions
under which their works are first placed before public. Section 14 (1) (ii) treats it as a separate category of economic
rights and not as moral right of the author.
In India the author’s right to control first publication is not extended to author’s right of withholding further
publications. Once the work is placed before public, the public has a right to have access to author’s work.
Following conditions, however, have to be fulfilled for recognizing the right of the public to have access to the
author’s work.
1. The term of copyright in the work is subsisting i.e. it has not fallen into public domain.
2. According to section 31 (1) the owner of the copyright:

(a) has refused to re-publish or allow the re-publication of work or has refused to allow the performance in
public of the work and by reason of such refusal the work is withheld from public; or
(b) has refused to allow communication to the public by 5[(broadcast)] of such work or in the case of a 6[(sound
recording)] the work recorded in such 6 [sound recording], on terms which the complainant considers
reasonable.
If the above conditions are fulfilled then any person can make a complaint to the Copyright Board. The Copyright
Board then follows the principle of natural justice namely , audi alteram partem rule. If it is satisfied that grounds for
refusal of re-publication etc. are unreasonable, then it directs the Registrar of Copyrights to grant to the complainant
a licence to republish the work, perform the work in public or communicate the work to the public by broadcast as
the case may be. The Registrar shall then grant licence to such a person who in the opinion of the Copyright Board
is qualified to do so.
The licensee is then governed by following conditions:

(a) Pay the prescribed fee
(b) Compensate the owner of the copyright
(c) Any other terms and conditions determined by the Copyright Board.
Prior to the amendment of 2012 compulsory licence could be obtained only by the complainant in Indian works
withheld from the public. Post 2012, it may be granted in respect of any work, whether Indian or foreign, withheld
from public. The scope of the section has thus been enlarged.
In Entertainment Network (India) Limited v. Super Cassette Industries Ltd. 7 a complaint was filed by Entertainment
Network, running a Radio FM Channel under the brand name "Radio Mirchi" against Super Cassettes Industries
Ltd.; (SCIL) who is not a member of PPL. Complainant made several attempts to obtain a licence for SCIL to play
its sound recordings but it was not issued to it for one reason or the other. The Copyright Board held:
A plain reading of section 31 makes it clear that a person gets a right to move the Copyright Board where in the case of a
sound recording the terms are not such which the complainant considers reasonable. Reasonability is not here the test that
is usually employed in the law of Torts or under Article 19 of the Constitution. The measure is not a reasonable man.
Reasonability here is to be judged solely by the complainant. If the complainant subjectively comes to the conclusion that
the terms are not reasonable, he acquires the right to the (sic. ) move the Copyright Board.
In Entertainment Network (India) Limited v . Super Cassette Industries Limited 8 the respondent was one of the
leading music companies engaged in the production and/or acquisition of rights in sound recordings. It had
Page 5 of 25
copyright over a series of cassettes and CDS commonly known as "T- series". It had copyrights in cinematographic
films and sound recordings. Appellant M/s. Entertainment Network (India) Ltd. (ENIL) broadcasts under the brand
name "Radio Mirchi". It is a leading FM radio broadcaster. Disputes and differences arose between Bennett
Coleman & Co. Ltd., the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as
regards the playing of the songs of which copyrights belongs to the first respondent in their FM radio network.
Appellant is a company which holds licence for running FM radio stations in various cities across India.
The core questions which arose for consideration in these appeals were:
(i) Whether the Copyright Board has jurisdiction under section 31 (1) (b) of the Copyright Act, 1957 to direct
the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licences
to broadcast where such work is available to the public through radio broadcast?
(ii) Whether in any event such a compulsory license can be issued to more than one complainant in the light of
section 31 (2) ?
(iii) What would be the relevant considerations which the Copyright Board must keep in view while deciding on
(a) Whether to issue a compulsory license to a particular person; and
(b) The terms on which the compulsory license may be issued, including the compensation?
The court held that the Board acting as a statutory authority can exercise its power from time to time. It is therefore
not correct to contend that having regard to the provisions of sub-section (2) of section 31, compulsory licence can
be granted only to one and not to more than one broadcaster.
Further, the Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning
an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to enjoy
the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right, to repeat, is
not absolute. It is subject to the right of others to obtain compulsory licence as also the terms on which such licence
can be granted.
It held that a compulsory licence can be granted even if the work is not withheld from the public and is made
available to the public. This can happen when the owner refuses to permit a broadcaster to broadcast the work.
Demanding of a royalty or compensation which is high or imposes unreasonable restrictions amounts to refusal to
grant permission.
In Supercassette Industries Ltd. v. Music Broadcast Pvt. Ltd., 9 the Supreme Court discussed the powers of the
Copyright Board under section 31. It observed that the Copyright Board has been empowered in cases where the
owner of a copyright in a work has withheld the same from the public, after giving the owner of the copyright in the
work a reasonable opportunity of being heard and after holding such inquiry as it may consider necessary and on
being satisfied that the grounds for withholding the work are not reasonable, to direct the Registrar of Copyrights to
grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the
public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation
and subject to such other terms and conditions as the Board may determine.
The language used in the section clearly contemplates a final order after a hearing and after holding an inquiry to
see whether the ground for withholding of the work from the public was justified or not. There is no hint of any
power having been given to the Board to make interim arrangements, such as grant of interim compulsory licences,
during the pendency of a final decision of an application.
In the instant case, the power being sought to be attributed to the Copyright Board involves the grant of the final
relief, which is the only relief contemplated under section 31 of the Copyright Act. Even in matters under Order
XXXIX Rules 1 and 2 and section 151 of the Code of Civil Procedure, an interim relief granting the final relief should
be given after exercise of great caution and in rare and exceptional cases. In the instant case, such a power is not
even vested in the Copyright Board and hence the question of granting interim relief by grant of an interim
compulsory licence cannot arise.
(ii) Compulsory licence in unpublished or published works [ Section 31A].
Compulsory licence may be issued to an applicant under section 31A if following conditions are fulfilled :
Page 6 of 25
1. The work in respect of which the compulsory licence is to be issued is either unpublished or published or
communicated to the public and the work is withheld from the public in India. The reasons for withholding from
public are not mentioned in the section.
2. The author of the work is dead or unknown or cannot be traced or the owner of copyright cannot be found. In
other words, the work is either posthumous or unclaimed.
3. The applicant prior to the filing of an application shall publish his proposal in a daily English newspaper. If the
application is for translation of the work, then it has to be published in a daily newspaper of that language.
4. Copyright board after holding the required inquiry may direct the Registrar to issue such a licence, subject to
payment of royalty in the public account of India or in any other account specified by the Copyright Board so as to
enable the owner of copyright, his or her heirs, executors or the legal representatives to claim such royalty.
If the original author is dead and the publication of work is desirable in national interest then section 31B gives a
priority to publish work to the heirs, executors or legal representatives of the author. If they do not publish the work
in the specified period then the licence may be granted to other persons.
(iii) Compulsory licence for the benefit of the disabled [ Section 31B]. Section 31 B was introduced by the
Amendment Act, 2012. Under section 31B any person for earning profit or doing business may apply to the
Copyright Board for a compulsory licence to publish any work if the following conditions are fulfilled :
(i) Publication of work is for the benefit of the disabled.
(ii) Copyright subsists in such a work and does not fall under section 52 (1) (zb) dealing with acts not
amounting to infringement in case of the disabled.
The copyright board has to consider the application expeditiously and endeavour to dispose of the application within
two months. Before granting the licence, it must hold an inquiry to determine that :
(i) Compulsory licence needs to be issued to make the work available to the disabled.
(ii) The application is made in good faith.
(iii) Credentials of the applicant are to the satisfaction of the Board.
The compulsory licence issued must specify:

(i) The means and format of publication
(ii) The time period for which compulsory licence may be exercised.
(iii) Number of copies to be issued.
(iv) Royalty to be paid to the copyright owner.
(b) Statutory Licences
(i) Statutory licence for cover versions [ Section 31C].
Prior to 2012, section 52 (1) (j) of the Copyright Act dealt with production of cover versions. A cover version is a
recording made of an already published song by another voice or voices and with different musicians and
arrangers. Version recording is neither copying nor reproduction of the original recording. 10 The High Court of Delhi
held 11 that once a version recording is made in compliance with section 52 (1) (j), it is as much a sound recording
as any other sound recording. Therefore copyright holder in a version recording has all the usual rights under
section 14 (e). It further held that section 52 (1) (j) was an illustration of a statutory licence, therefore, an application
was required to be made by the producer of the version recording.
Post 2012, the amendment replaced section 52 (1) (j) with section 31C. According to section 31C any person can
make a cover version of sound recording provided the following conditions are fulfilled:
1. The cover version can be made only after the expiry of five calendar years after the end of the year in which the
first sound recording was made.
Page 7 of 25
Example : If first sound recording was made in February, 2000 then five years will begin from 1.1.2001. Cover
version can thus be made by anyone on or after 1.1.2006.
Prior to 2012 the time period was two years.
2. Cover version has to be made in the same medium as the last recording unless the medium is no longer in
current use.
3. The packaging or cover of the cover version shall state that it is a cover version. It shall not in any manner
mislead or confuse the public as to its identity. It shall not contain the name or depiction of any performer of an
earlier sound recording.
4. The cover version shall not make any alteration in the literary or musical works. The alteration can only be made
if technically necessary or with the consent of the owner of rights of literary and musical works. Even after receiving
consent the producer of the cover version will have to share royalty with the producer of earlier recording and
author of literary and musical work in respect of which the cover version is made. This is evidently clear from a
combined reading of section 31C, fourth proviso to section 18 (1) added in 2012 and section 19 (10) newly inserted
in 2012. The addition of the above stated provision in 2012 have made economic rights of authors of literary and
musical works stronger than before.
5. The producer of cover version has to produce a minimum of fifty thousand copies in a year. This number can be
lowered by the Copyright Board in case of less popular dialects.
6. The producer of cover version has to give the following to the owner of the first recording:
(i) Prior notice of his intention to produce cover version
(ii) Advance copies of all covers or labels
(iii) Royalty in advance at the rate fixed by Copyright Board
7. If the owner of the sound recording makes a genuine complaint to the Copyright Board that the producer of the
cover version has not made full payment to him then the Copyright Board may pass an ex parte order directing the
producer of a cover version to cease from making further copies.
The introduction of section 31C is probably going to have a significant adverse impact on the production of remixes.
(ii) Statutory licence for broadcasting of literary and musical works and sound recording [ Section 31D].
A new section 31D was inserted by the Amendment Act in 2012 to facilitate access of works to the vast expanding
broadcasting industry. Prior to 2012, the access to copyright works by broadcasters was dependant only on
voluntary licensing. The owners and the copyright societies by virtue of their freedom to grant licence could stipulate
any terms and conditions, whether reasonable or unreasonable. The High Courts were giving divergent views in
interpreting the provisions of compulsory licensing under section 31. Much litigation is pending before the High
Courts and the Copyright Board involving issues relating to the nature of licence and rate of royalties to be paid
when works particularly songs are used by the broadcasters. In such a scenario, the legislature thought it proper to
introduce a uniform provision relating to statutory licence issued when works are used by radio or television
broadcasters.
According to section 31D any broadcasting organization desirous of communicating to the public by way of
broadcast or by way of performance of a literary or musical work or a sound recording which has already been
published may do so subject to the following conditions:
1. Give a prior notice of its intention to the right holder stating the duration and territorial coverage of the broadcast.
2. Pay royalty as fixed by the Copyright Board in advance. The rates of royalty for radio broadcast shall be different
from television broadcasting.
3. The names of the authors and the principal performers of the work shall be announced with the broadcast.
Page 8 of 25
4. The broadcaster shall not alter any literary or musical work except which is technically necessary. The work can
be shortened for convenience of broadcast.
5. The broadcasting organization shall maintain record and books of accounts and render them to the owner, the
records shall be open to inspection by the owner of rights or his duly authorized agent.
(c) Licence after prescribed period
(i) Licence to produce and publish translations of literary or dramatic works [Section 32].
Any person may apply to the Copyright Board for a licence to produce and publish a translation of a literary or
dramatic work in any language. This includes all kinds of work irrespective of territory (whether Indian or foreign),
nature of work (fiction or non-fiction), purpose of work (teaching or research etc.) after a period of seven years from
the first publication of work. The period is reduced to three years if licence is for publishing a translation of a non-
Indian work for the purposes of teaching, scholarship or research. The period is further reduced to one year if the
translation is in a language not in general use in any developed country.
Every application is to be made to the Copyright Board in the prescribed form 12 on payment of a prescribed fee. 13
The application should state the proposed retail price of a copy of the translation. 14
The Copyright Board processes the application, holds an enquiry and, if satisfied, grants a licence of publishing a
translation of the work to the applicant. The licence is not an exclusive licence meaning thereby that the Copyright
Board for translation of a work can issue multiple licences. 15 Such possibilities result in keeping the price of
translated work competitive. Each translation is an original work as it is created by the independent skill and labour
of the respective translators.
The licence issued is subject to the following two conditions:

(i) The applicant shall pay to the owner of the copyright in the work, royalties in respect of copies of the
translation of the work sold to the public. The rate of royalty is to be calculated by the Copyright Board. 16
(ii) Where a licence is granted for translation of a non-Indian work for the purposes of research, teaching or
scholarship, the licence shall not extend to the export of the copies of translation outside India. Each copy
of the translated work shall contain a notice in the language of the translation that the copy is available for
distribution only in India. 17 Copies can be exported to any country by government or an authority under
government if translation is in a language other than English, French or Spanish and if –
(1) such copies are sent to citizens of India residing outside India or to any association of such citizens
outside India; or
(2) such copies are meant to be used for purposes of teaching, scholarship or research and not for any
commercial purpose; and
(3) in either case, the permission for such export has been given by the government of that country.
For grant of licence under this section following requirements also have to be fulfilled:
(a) a translation of the work in the language mentioned in the application has not been published by the owner
of the copyright in the work or any person authorized by him, 18 [within seven years or three years or one
year, as the case may be, of the first publication of the work], or if a translation has been so published, it
has been out of print;
(b) the applicant has proved to the satisfaction of the Copyright Board that he had requested and had been
denied authorization by the owner of the copyright to produce and publish such translation, or that 19[he
was, after due diligence on his part, unable to find] the owner of the copyright;
(c) where the applicant was unable to find the owner of the copyright, he had sent a copy of his request for 20
[such authorization by registered air mail post to the publisher whose name appears from the work, and in
the case of an application for a licence under sub-section (1)] not less than two months before 21 [such
application];
22 [(cc) a period of six months in the case of an application under sub-section (1A) (not being an
application under the proviso thereto), to nine moths in the case of an application under the proviso to that
Page 9 of 25
sub-section, has elapsed from the date of making the request under clause (b) of this proviso, or where a
copy of the request has been sent under clause (c) of this proviso, from the date of sending of such copy,
and the translation of the work in the language mentioned in the application has not been published by the
owner of the copyright in the work or any person authorized by him within the said period of six months or
nine months, as the case may be;
(ccc) in the case of any application made under sub-section (1A):
(i) the name of the author and the title of the particular edition of the work proposed to be translated are
printed on all the copies of the translation;
(ii) if the work is composed mainly of illustrations, the provisions of the section 32A are also complied
with];
(d) the Copyright Board is satisfied that the applicant is competent to produce and publish a correct
translation of the work and possesses the means to pay to the owner of the copyright the royalties
payable to him under this section;
(e) the author has not withdrawn from circulation copies of the work; and
(f) an opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.
(ii) Grant of Licence to broadcasting authority [Section 32 (5)].
Any broadcasting authority may apply to the Copyright Board for a licence to produce and publish the translation
of–
(1) a non-Indian published work in printed or analogous forms of reproduction; or
(2) any text incorporated in audio-visual fixations prepared and published solely for the purpose of systematic
instructional activities.
The broadcasting of such translations will be for the purposes of teaching or for dissemination of the results of
specialized, technical or scientific research to the experts in any particular field.
No licence can be granted to a broadcasting authority unless –
1. the translation is made from a work lawfully acquired;
2. the broadcast is made through the medium of sound and visual recordings;
3. such recording has been lawfully and exclusively made for the purpose of broadcasting in India by the applicant
or by any other broadcasting agency; and
4. the translation and the broadcasting of such translation are not used for any commercial purposes.
Explanation: For the purposes of this section, -

(a) "developed country" means a country which is not a developing country;
(b) "developing country" means a country which is for the time being regarded as such in conformity with the
practice of the General Assembly of THE UNITED NATIONS ;
(c) "purposes of research" does not include purposes of industrial research, or purposes of research by bodies
corporate (not being bodies corporate owned or controlled by government) or other associations or body of
persons for commercial purposes;
(d) "purposes of teaching, research or scholarship" includes –
(i) purposes of instructional activity at all levels in educational institutions, including schools, colleges,
universities and tutorial institutions; and
(ii) purposes of all other types of organized educational activity.
(iii) Compulsory Licence to reproduce and publish literary, scientific or artistic work [Section 32A].
Page 10 of 25
This section was introduced by the Act of 1983. It contemplates grant of a licence to any person after the expiration
of relevant period from the date of first publication of an edition of a literary, scientific or artistic work. The relevant
period 23 is:
(a) Seven years in case of fiction, poetry, drama, music or art.
(b) Three years in case of any work of, or relating to, natural science, physical science, mathematics or
technology and
(c) Five years in any other case.
Any person can apply for a licence to reproduce and publish such work in printed or analogous forms of
reproduction 24 in the prescribed form 25 on payment of a prescribed fee. 26
The Copyright Board issues a licence to the applicant if following conditions are fulfilled:
(1) Copies of such edition are not made available in India or
(2) Copies of such editions have not been put on sale in India.
If the copies are available for systematic instructional activity but at a price higher than normal charges in India for
comparable works, it would amount to "non availability". 27
The Copyright Board after holding an enquiry will issue a licence, not being an exclusive licence (to keep the price
at competitive rates) subject to conditions prescribed under section 32A (4) which are as follows:
(i) The applicant shall pay to the owner of the copyright in the work royalties in respect of copies of the
reproduction of the work sold to the public, calculated at such rate as the Copyright Board may, in the
circumstances of each case, determine in the prescribed manner;
(ii) A licence granted under this section shall not extend to the export of copies of the reproduction of the work
outside India and every copy of such reproduction shall contain a notice that the copy is available for
distribution only in India:
Provided that no such licence shall be granted unless—

(a) The applicant has proved to the satisfaction of the Copyright Board that he had requested and had
been denied authorization by the owner of the copyright in the work to reproduce and publish such
work or that he was, after due diligence on his part, unable to find such owner;
(b) Where the applicant was unable to find the owner of the copyright, he had sent a copy of his request
for such authorization by registered air-mail post to the publisher whose name appears from the work
not less than three months before the application for the licence;
(c) The Copyright Board is satisfied that the applicant is competent to reproduce and publish an accurate
reproduction of the work and possesses the means to pay to the owner of the copyright the royalties
(d) The applicant undertakes to reproduce and publish the work at such price as may be fixed by the
Copyright Board, being a price reasonably related to the price normally charged in India for works of
the same standard on the same or similar subjects;
(e) A period of six months in the case of an application for the reproduction and publication of any work of
natural science, physical science, mathematics or technology, or a period of three months in the case
of an application for the reproduction and publication of any other work, has elapsed from the date of
making the request under clause (a), or where a copy of the request has been sent under clause (b),
from the date of sending of a copy, and a reproduction of the work has not been published by the
owner of the copyright in the work or any person authorized by him within the said period of six months
or, three months, as the case may be;
(f) the name of the author and the title of the particular edition of the work proposed to be reproduced are
printed on all the copies of the reproduction;
(g) The author has not withdrawn from circulation copies of the work; and
(h) An opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.
Page 11 of 25
A licence granted under section 32A will be terminated if the owner of the copyright in the work or any person
authorized by him, sells and distributes copies of the work concerned which are substantially the same in content at
a price reasonably related to the price normally charged in India for works of the same standard on the same or
similar subjects. The right holder should serve a notice in the prescribed manner on the licensee under section 32A.
The termination of licence takes effect upon the expiry of three months from the date of service of the notice. Any
copies already reproduced by the licensee before such termination may continue to be sold or distributed until
exhausted.
C. Doctrine of Fair Dealing or Permitted Acts
Certain acts normally restricted by copyright may, in circumstances specified in law, be done without the
authorization of the copyright owner. Such provisions are enacted for the purposes of balancing the rights of owners
with the society as a whole.
Article 9 (2) of the Berne Convention authorizes a national legislation to permit the "reproduction" of protected
works "in certain special cases" provided two cumulative conditions are fulfilled:
(a) The reproduction does not conflict with the normal exploitation of the work and
(b) Such reproduction does not unreasonably prejudice the legitimate interests of the author.
The question whether there is prejudice to the interest of the author, and whether such prejudice is reasonable or
not, leaves great latitude to national legislations. The answer to the question posed by the convention has to be
given in two stages. In the first place by the national legislation which formulates the exception permitted by the
convention, and in the second place by the national courts interpreting that formula in the national law. Only if the
national law chooses to disregard one or both of the conditions laid down by Article 9 (2) would the member country
be in the breach of the convention. 28
The exceptions were conceived mainly with manuscript or typewritten copies in mind, but modern technology has
provided new tools, which produce major challenges to the right of reproduction. For example currently, a heated
debate is centered on the proposition that the Internet and the World Wide Web have upset the sensitive balance
between authors and users. Copyright owners claim that unless copyright law is strengthened, contents will not be
made available on the Internet and the network will fail. 29 Internet users claim that if their current practices are
restricted the Internet will fail to live up to its potential as a democratic, interactive medium of communications and
social interaction. 30 Steps are being constantly taken internationally and in most of the countries to reconcile the
conflicting interests of the copyright owner and the public. The two major examples of such a reconciliation are
formulation of WCT and WPPT by WIPO and the consequential amendment in the Copyright Act, 1957 in India in
2012.
Section 52 of the Copyright Act, 1957 deals with approximately forty actions which shall not constitute an
infringement of copyright. The acts that do not constitute infringement can be discussed under following heads:
(a) Fair dealing with certain works
Section 52 (1)(a):
A fair dealing with any work, not being a computer programme, for the purposes of—
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events 31 and current affairs, including the reporting of a lecture delivered in public.
Explanation . —The storing of any work in any electronic medium for the purposes mentioned in this clause,
including the incidental storage of any computer programme which is not itself an infringing copy for the said
purposes, shall not constitute infringement of copyright.
(ii) Fair dealing:

Page 12 of 25
The expression "fair dealing" is not defined anywhere in the Act. In Hubbard v. Vosper 32 Lord Denning held that fair
dealing is inevitably a matter of degree and explained it as :
You must consider first the number and extent of the quotations, and extracts. Are they altogether too many and too long to
be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that
may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair.
Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But short extracts
and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a
matter of impression.
In United States, the House Report accompanying section 107 of the United States Code observed:
In determining whether the use made of a work in any particular case is a ‘fair use’ the factors to be considered
shall include :
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non
profit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work. 33
The court examines these factors in judging the assertion of infringement by the copyright owner on the one hand
and the assertion of fair use by the alleged infringer on the other. The inability of the courts or Congress to articulate
a complete list of factors to be applied in determining fair use is evidence of the difficulty courts have had in
applying the doctrine. Learned Hand, J. described the fair use doctrine as "the most troublesome in the whole law
of copyright." 34 The doctrine of fair dealing or fair use is used as an affirmative defence and is applied once it is
established that the defendant’s work is, in fact, substantially similar to the plaintiff’s. It is an extraordinary flexible
doctrine in the sense that its application typically turns on the particular facts in issue. The doctrine has developed
through a substantial number of court decisions over the years. 35
Research
(iii) Research:
Research according to the dictionary means, "a search or investigation directed to the discovery of some fact by
careful consideration or study of a subject; a course of critical or scientific inquiry". 36 This exception is very
important for researchers in all walks of life whether science, sociology, economics or history, etc. as the onus of
development of society in theory and practice rests on the researchers. The researchers do not have to waste time
in seeking permissions from copyright owners before making use of their work rather they can go ahead from where
the earlier copyright owner had stopped. Moreover, the legislature and judiciary excuse research uses on the
ground that they do not hamper the customary markets for a copyrighted work.
In Williams & Wilkins Co. v. United States 37 the court held that it was fair use for the defendant to photocopy
articles from plaintiff’s medical journals for distribution to medical researchers because the copyright owner had not
shown that it was, or would be, substantially harmed by the practice.
Criticism or Review
(iv) Criticism or Review:
For criticizing and reviewing any work, it sometimes becomes inevitable to use extracts from the work reviewed or
any other work. The use of such extracts by the reviewer or critic is not infringement. In UK the precondition of
fairness is that the source should be sufficiently acknowledged. 38 The Indian Act, however, does not prescribe such
a condition but the principle is followed in practice.
In Chancellor Masters and Scholars of University of Oxford v. Narender Publishing House , 39 the plaintiff claimed
Page 13 of 25
copyright in the book "Oxford Mathematics Part A and Part B" based on the syllabus for Class IX of J&K State
Board of Secondary Education. Defendants copied all the questions of the plaintiff’s book and prepared a
guidebook titled "Teach Yourself Mathematics (fully solved) Part A" and "Teach Yourself Mathematics (fully solved)
Part B". The guidebooks provided step by step approach to finding answers to the questions. The defendants
claimed exemption under section 52 (1) (a) as their work fell under "review" of the book.
The court held that by writing a guide book a "transformative work" comes into existence. A subsequent work is
transformative when it is different in character from the previous work. If the work is transformative then it does not
matter that the copying is whole or substantial. It further held that "review" according to The Shorter Oxford
Dictionary (5th Edition) means "view, inspect or examine a second time or again.....". In the context of a
mathematical work a review could involve re-examination or a treatise on the subject. In that sense, the defendants
revisiting the questions and assisting the students to solve them by providing the "step by step" reasoning prima
facie amounts to a review thus falling within the "fair dealing" provision of section 52 (1) (a)(ii) of the Act.
In Super Cassettes Industries v . Hamar Television Network Pvt. Ltd 40 the plaintiff, who carries on business under
T-Series Brand of music cassettes sought an injunction against defendant, a Bhojpuri channel restraining it from
broadcasting its copyrighted works. The defendant took the defence of section 52 (1) (a)(i) and (ii) by claiming that
the alleged broadcast was in the nature of "review, preview, or for reporting current events". The court decided in
favour of the plaintiff and summarized the broad principles of law which were enunciated in the judgments cited
before him on the aspect of "fair dealing" as follows:
(i) It is neither possible nor advisable to define the exact contours of fair dealing;
(ii) It is a question of fact, degree, and at the end of the day overall impression carried by the court;
(iii) In ascertaining whether extracts taken from copyrighted work have been put to fair use, the extent and the
length of the extracts may be relevant. Long extracts followed by short comments may in certain
circumstances be unfair, while short extracts followed by long comments may be fair. In certain
circumstances even small extracts, which are taken, on regular basis may point to unfair use of the
copyrighted work.
(iv) The right to make fair use or to deal fairly with the copyrighted work includes the right to criticize not only
the style, but also as the underlying doctrine or philosophy of the copyrighted work. In this regard criticism
could be both "strong" and "unbalanced". Such criticism by itself will not result in forfeiture of the defence of
fair dealing. Malicious and unjustified criticism may give to the aggrieved party a cause for instituting an
action for defamation but it would certainly not confer a right founded in copyright.
(v) In ascertaining as to what would constitute reportage of "current events" or would fall within the ambit of
"criticism" or "review", Courts ought to adopt a liberal approach;
(vi) In discerning as to whether a person has made fair use of copyrighted work, the standard employed ought
to be that of a "fair minded" and "honest person". In the case of musical works the test would be that of a
"lay hearer";
(vii) While examining the defence of fair dealing, the length and the extent of the copyrighted work which is
made use of is important, however, it cannot be reduced (sic.) just a quantitative test without having regard
to the qualitative aspect. In other words, enquiry ought to be made as to whether the impugned extract
forms an essential part of the work of the person in whom inheres the copyright. This is particularly true in
the case of musical works where a few notes may make all the difference;
(viii) Even though copyrighted work may contain confidential information, the courts would desist from injuncting
the use of such work if it is in public weal. Though there is a difference between a breach of confidence as
against infringement of copyright, the Court would not grant an injunction in favour of the person in whom
inheres the copyright if it is contrary to public policy, that is, is:
(a) immoral;
(b) scandalous;
(c) contrary to family life;
(d) injurious to public life, public health, safety or, is inimical to administration of justice; and
(e) incites an action which endangers (c) and (d) above.
(ix) The principle of freedom of expression will protect both information and ideas. Freedom of expression
includes the right to publish and receive information. Public interest may in certain circumstances be so
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overwhelming that courts would not refrain from injuncting use of even "leaked information" or even the
right to use the "very words" in which the aggrieved person has copyright, as at times, public interest may
demand the use of the "very words" to convey the message to public at large. While the courts may desist
from granting injunction based on the principle of freedom of expression, this would, however, not
necessarily protect the infringer in an action instituted on behalf of the person in whom the copyright vests
for damages and claim for an account of profits;
(x) Public interest and what the (sic.) interests the public need not be the same;
(xi) The motive of the user shall play an important role in assessing as to whether injunction ought to be
granted;
(xii) Commercial use of copyrighted work cannot simplicitor (sic.) make it unfair; and
(xiii) Lastly, "transformative use" may be deemed in certain situations as fair use of copyrighted work;.
(b) Permitted reproductions
The following reproductions of work without the authorization of the copyright owner are not infringement:
(i) Section 52 (1) (e):
The reproduction or publication of any work prepared by the Secretariat of a Legislature or, where the Legislature
consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the
members of that Legislature.
Example: The Secretariat of Rajya Sabha prepares a report for the members of Rajya Sabha. The office of any
ministry provide copies of the report to the members of Lok Sabha and all their government officers without the
permission of the Secratariat of Rajya Sabha. The office of the ministry infringes the copyright of the Secratariat of
Rajya Sabha.
(ii) Section 52 (1) (f):
The reproduction of any work in a certified copy made or supplied in accordance with any law for the time being in
force.
Example : One can have certified copies of documents from court on payment of the prescribed fee.
(iii) Section 52 (1) (i): 41
The reproduction of any work

(i) by a teacher or a pupil in the course of instruction; or
Example: A teacher distributes copies of an article written by B without his permission to students of
her class for the purposes of explaining a topic. The teacher has not infringed the copyright of B.
(ii) as part of the questions to be answered in an examination; or
Example : In a question paper the examiner quotes a few paragraphs from a work and instructs the
students to analyze the work of the author. The examiner has not violated the copyright of the author.
(iii) in answers to such questions;
In Syndicate of The Press of the University of Cambridge v. B.D. Bhandari & Anr 42 the respondents had prepared a
guide book based on the appellants book and claimed that their act does not amount to infringement because it will
be covered under the Doctrine of Fair Dealing especially under section 52 (1) (h). By the Amendment Act of 2012
this provision has been renumbered as section 52 (1) (i).
The court held—

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It is clear from the reading of the aforesaid provision that this would not come to the aid of the respondents who have
published the guide for commercial exploitation. In view of the law laid down in various cases, commercial exploitation will
take the matter outside the ambit of fair use. The defence of ’fair use’ as provided under section 52 (1) (h) of the Act is only
available to the teacher and pupil to reproduce the literary work in the course of instructions or examination paper setter to
reproduce the literary work as part of the questions or to the pupil to reproduce the literary work as answers to such
questions. The respondents are neither teachers nor students nor a person giving or receiving instruction. If this defence is
allowed to a publisher, then it would result in a situation where every publisher, without permission from the owner of
copyright, would reproduce the ad verbatim literary text from the educational textbooks prescribed by the University into
their books and exploit the same for commercial gains and benefits and that too without giving any royalty or payment to
the right owners towards such reproduction. This practice would obviously discourage creativity of authors who put their
skill, labour, years of knowledge, expertise, etc. into these educational books and encourage infringers like the respondents
to reproduce ad verbatim literary text from original publications into their infringing books on the pretext of fair use.
Obviously, therefore, section 52 (1) (h) (now section 52 (1) (i)) of the Act has no application to the facts of this case.
4. Section 52 (1) (m)
(iv) Section 52 (1) (m):
The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or
religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.
In The Periyar Self Respect v. Periyar Dravidar Kazhagam, 43 the question involved was who is the owner of
copyright in articles written on current issues if the author does not reserve the right of reproduction with him ?
In the instant case, Periyar, the founder of the Self-Respect Movement in 1926, started a newspaper " Kudiyarasu ".
He published various articles and write ups covering political, economical and social issues in this newspaper.
Periyar died intestate and there was no material to show that a copyright had been reserved by him as an author of
those articles.
The court held that it is no doubt true that the overall owner of the copyright has a right akin to the right to property,
but at the same time, in a work if made public then it should be made available subject to a reasonable term. In the
present case, it has been made clear that the author of " Kudiyarasu ", i.e. the late Periyar, was the owner and the
articles published in the newspapers mostly related to the then existent economical, political, social and religious
topics. Therefore, unless the author had expressly reserved his right of reproduction, no copyright will vest with
anyone as reproduction of such articles cannot constitute an infringement of copyright as per section 52 (1) (m).
(v) Section 52 (1) (p):
The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished
literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.
Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, of any of
the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause
shall apply only if such reproduction is made at a time more than [sixty years 44] from the date of the death of the
author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the
identity of more authors than one is known form the death of such of those authors who dies last.
(vi) Section 52 (1) (q):
The reproduction or publication of

(i) any matter which has been published in any Official Gazette except an Act of a Legislature;
(ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any
commentary thereon or any other original matter;
Example : A, a publisher publishes an Act of a legislature without any notes or comments. A has
infringed the copyright of the government. The copyright of the publisher is extended only to the
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commentary or any other original matter.
(iii) The report of any committee, commission, council, board or other like body appointed by the government if
such report has been laid on the Table of the Legislature, unless the reproduction or publication of such
report is prohibited by the government;
(iv) Any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication
of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may
be.
In Eastern Book Co. v. Navin J. Desai , 45 the court held:
a work, which is made or published under the direction or control of any court, tribunal or judicial authority in India, is a
Government work. Under section 52 (1) (q), the reproduction or publication of any judgment or order of a court tribunal or
judicial authority shall not constitute infringement of copyright of the Government in these works. It is thus clear that it is
open to everybody to reproduce and publish the Government work including the judgment or order of a Court. However, in
case a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made
certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is
entitled to protection under the Copyright Act. It is in this background that the Court has to examine as to whether or not i)
the work produced by the plaintiff is an original literary work; and ii) it is entitled to protection under the Copyright Act.
In terms of section 52 (1) (q) of the Act, reproduction of a judgment of the Court is an exception to the infringement of the
copyright. The orders and judgments of the Court are in the public domain and anyone can publish them. Not only that
being a Government work, no copyright exists in these orders and judgments but no one can claim copyright in these
judgments and orders of the Court merely on the ground that he had first published them in his book. If there are some
typographical mistakes in a judgment or an order of the Court, can it be said that merely because the first publisher of these
judgments and orders has corrected those mistakes or has inserted certain commas or full stops and dates therein, a
copyright will exist in the person who has corrected such mistakes in the judgment published by him? The answer has to be
in the negative. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections
of typographical mistakes are trivial and hence no copyright exists therein.
The Supreme Court reiterated in Eastern Book Company v. D. B. Modak 46 that judgments delivered by courts are
in public domain by virtue of section 52 and there is no copyright in the original text of the judgments.
(c) Permitted publications
The following publications are not infringement under Copyright Act:
(i) Section 52 (1) (h):
The publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use,
and so described in the title and in any advertisement issued by or on behalf of the publisher, or short passages
from published literary or dramatic works, not themselves published for such use, in which copyright subsists:
Provided that not more than two such passages from works by the same author are published by the same
publisher during any period of five years.
Explanation: In the case of a work of joint authorship, references in this clause to passages from works shall include
references to passages from works by any one or more of the authors of those passages or by any one or more of
those authors in collaboration with any other person.
This sub-clause has been introduced for the first time in 2012.
(ii) Section 52 (1) (r):
The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or
orders made thereunder—
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(i) if no translation of such Act or rules or orders in that language has previously been produced or published
by the Government; or
(ii) where a translation of such Act or rules or orders in that language has been produced or published by the
Government, if the translation is not available for sale to the public:
Provided that such translation contains a statement at a prominent place to the effect that the
translation has not been authorized or accepted as authentic by the Government
3. Section 52 (1) (s)
(iii) Section 52 (1) (s) :
the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a
work of architecture
(iv) Section 52 (1) (t):
the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling
under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises
to which the public has access
(d) Permitted performance and recitation

(i) Section 52 (1) (j): The performance in the course of the activities of an educational institution, of a literary,
dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound
recording, if the audience is limited to such staff and students, the parents and guardians of the students
and persons directly connected with the activities of the institution or the communication to such an
audience of a cinematograph film or sound recording. 47
Example : A is the copyright owner of a dramatic work depicting the values of freedom. The students of a college in
order to make students aware of this value perform the play in college before the students and staff on
Independence Day. Encouraged by the response of students, they enact the play in the streets of the city. The
students do not infringe the copyright of A when they perform it in college but infringe the copyright when the play is
performed in streets for general public as it amounts to communication to public.
(ii) Section 52 (1) (za):
The performance of a literary, dramatic or musical work or the communication to the public of such work or of a
sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central
Government or the State Government or any local authority
Explanation.— For the purposes of this clause, religious ceremony includes a marriage procession and other social
festivities associated with a marriage.
Example : On the marriage of A, an orchestra plays songs from different movies and artists re-enact the dances
performed in the respective movies. The copyright of producer of sound recording is not infringed. The same group
of orchestra, however, has to take permission of the copyright owner if they are playing the music in any other
public function.
(e) Exceptions in respect of sound recording and cinematograph film

(i) Section 52 (1) (k):
The causing of a recording to be heard in public by utilizing it

Page 18 of 25
(ii) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a
hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for
residents therein; or
(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit;
(iii) as part of the activities of a club, society or other organisation which is not established or conducted for
profit;
Example : A sound recording is played in the common room of a hostel. It is not infringement. A sound
recording played, without an authorization from the producer in the lobby of a hotel is infringement.
(ii) Section 52 (1) (u):
the inclusion in a cinematograph film of

(i) any artistic work permanently situate in a public place or any premises to which the public has access; or
(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the
principal matters represented in the film;
Example : A draws and carves out a statue in a garden. While shooting for a cinema, the producer
includes a scene where the cine heroine and hero run around the statue in a romantic manner. The
producer of the film has not infringed the copyright of either author or any other copyright owner by
showing the statue in his film.
(iii) Section 52 (1) (y):
In relation to a literary, 48[dramatic, artistic or] musical work recorded or reproduced in any cinematograph film, the
exhibition of such film after the expiration of the term of copyright therein:
Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (a) of clause (b) and clauses (d), (f), (g), (m)
and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgement—
(i) identifying the work by its title or other description; and
(ii) unless the work is anonymous or the author of the work has previously agreed or required that no
acknowledgement or his name should be made, also identifying the author;
(f) Exceptions for library use

(i) Section 52 (1) (n): 49
[The storing of a work in any medium by electronic means by a non-commercial public library, for
preservation if the library already possesses a non-digital copy of the work.]
This exception has been added by the amendment in 2012. It is a very welcome step taken by the
legislature in favour of the non-commercial public libraries.
Example: The library of a University instead of buying books gets them on loan from someone. For the
benefit of the students the librarian gets the books converted into a digital format and stores them in its
digital library. He thereafter returns the books to the owner. The library, though non-commercial in
nature, has infringed the copyright of the author/publisher, whoever is the owner of copyright. If the
librarian buys the book and preserves a digital copy then it will not amount to infringement.
(ii) Section 52 (1) (o):

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The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or
under the direction of the person in charge of a 50[non-commercial public library] for the use of the library if such
book is not available for sale in India.
Example : The librarian buys a costly book from an Indian shop. The shop has a number of copies of the book but
librarian chooses to make three photostat copies of the book for the library. The librarian has infringed the copyright
of the author of the book as the book is available in the bookshop.
(g) Permitted use of artistic works

(i) Section 52 (1) (v):
The use by the author of an artistic work, where the author of such work is not the owner of the
copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the
work:
Provided that he does not thereby repeat or imitate the main design of the work
(ii) Section 52 (1) (w):
The making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the
purposes of industrial application of any purely functional part of a useful device.
This new exception has been added by the amendment of 2012.
(h) Reconstruction of a work of architecture

(i) Section 52 (1) (x):
The reconstruction of a building or structure in accordance with the architectural drawing or plans by
reference to which the building or structure was originally constructed:
Provided that the original construction was made with the consent or licence of the owner of the
copyright in such drawings and plans.
Example : P demolishes his building in Delhi. P reconstructs the building making use of the original
drawing or plan. P has not infringed copyright of architect although he had not taken permission of the
architect again before reconstruction.
(i) Permitted uses of computer and computer programmes

(i) Section 52 (1) (b):
The transient or incidental storage of a work or performance purely in the technical process of
electronic transmission or communication to the public;
Example : A person browses the websites on the Internet. The browser makes a copy of the browsed
material which is temporarily stored in the memory of the browser. Making of copy and its incidental
storage is a necessary function of the technology currently available with which to browse. The
browser has not infringed the copyright of the copyright owner. 51
(ii) Section 52 (1) (c):

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The transient or incidental storage of a work or performance for the purpose of providing electronic links, access or
integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the
person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:
Provided that if the person responsible for the storage of the copy has received a written complaint from the owner
of copyright in the work, complaining that such transient or incidental storage is an infringement, such person
responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he
receives an order from the competent court refraining from facilitating access and in case no such order is received
before the expiry of such period of twenty-one days, he may continue to provide the facility of such access.
The clauses (b) and (c) have been added by the amendment of 2012 to bring the Act in conformity with the two
Internet treaties namely, WCT and WPPT. India has still not ratified the two treaties.
(iii) Section 52 (1) (aa) :
The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer
programme, from such copy
(i) in order to utilize the computer programme for the purpose for which it was supplied; or
(ii) 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;
The license terms under which any software is supplied usually lists all the actions that a licensee can
perform with that computer program. This will constitute the purpose for which the program was
supplied. Such purposes may include:
(a) use with a specific operating system;
(b) use with one specific computer or multiple computers (single user license or multi-user license);
(c) home use, personal use or use in an office
Example : A buys a computer programme. A copy of it is made into the RAM for running of the programme
or for any repair. No infringement takes place.
(iv) Section 52 (ab):
The doing of any act necessary to obtain information essential for operating inter-operability of an independently
created computer programme with other programmes by a lawful possessor of a computer programme provided
that such information is not otherwise readily available.
The words "doing of any act" stated above are wide enough to include reverse engineering and disassembling.
Under TRIPS, developing countries are permitted the flexibility to allow reverse engineering of a software. Reverse
engineering is a process by which a software designer who wishes to make his programme inter-operate with a
competitor’s computer or computer programme, reproduces the competitor’s programme as an intermediate step to
discover the programme’s unprotected interface specifications. Copyright owners typically disseminate their
programmes in the form of unreadable object code rather than readable source code, so that, to discern a
program’s unprotected interface specifications, the software designer must analyse the object code version of the
programme either by Black Box analysis or in some circumstances by "disassembling" or "decompiling" the object
code into human-readable form. This process requires the software designer to copy the copyrighted programme-
either by loading, running and storing the programme in the course of the Black Box analysis or by converting
object code into human-readable form through decompilation.
A person using an illegally obtained (pirated) copy of a computer program cannot exercise this right as the provision
clearly mentions that the possessor of the computer programme shall be a lawful possessor.
(v) Section 52 (1) (ac):

Page 21 of 25
The observation, study or test of functioning of the computer programme in order to determine the ideas and
principles which underline any elements of the programme while performing such acts necessary for the functions
for which the computer programme was supplied.
(vi) Section 52 (1) (ad):
The making of copies or adaptation of the computer programme from a personally legally obtained copy for non-
commercial personal use.
Example : P buys a CD having an application software. P makes copies of this CD and gives it as a gift to his
friends. P has infringed the copyright of the author of application software as his action, though non-commercial, is
not for personal use. If P makes a backup copy for his personal library, no infringement takes place.
(j) Permitted broadcasting

(i) Section 52 [52 (1)(z):
the making of an ephemeral recording, by a broadcasting organization using its own facilities for its
own broadcast by a broadcasting organization of a work which it has the right to broadcast; and the
retention of such recording for archival purposes on the ground of its exceptional documentary
character.
(k) Persons with disability
1. Section 52 (1) (zb):
The adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format,
by—
(i) any person to facilitate persons with disability to access to works including sharing with any person with
disability of such accessible format for private or personal use, educational purpose or research; or
(ii) any organisation working for the benefit of the persons with disabilities in case the normal format prevents
the enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available to the persons with
disabilities on a non-profit basis but to recover only the cost of production:
Provided further that the organization shall ensure that the copies of works in such accessible format
are used only by persons with disabilities and takes reasonable steps to prevent its entry into ordinary
channels of business.
Explanation. —For the purposes of the sub-clause, "any organization" includes and organization
registered under section 12A of the Income-tax Act, 1961 and working for the benefit of persons with
disability or recognized under Chapter X of the Persons with Disabilities (Equal Opportunities,
Protection or Rights and full Participation) Act, 1995 or receiving grants from the government for
facilitating access to persons with disabilities or an educational institution or library or archives
recognized by the Government].
(l) Importation of goods

(i) Section 53 [52 (1)(zc):
The importation of copies of any literary or artistic work, such as labels, company logos or promotional
or explanatory material, that is purely incidental to other goods or products being imported lawfully].
Page 22 of 25
According to section 52 (2) the provisions of sub-section (1) shall apply to the doing of any act in
relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic,
musical or artistic work as they apply in relation to the work itself. Therefore, all the above stated
permitted actions will also be permitted in case of translations or adaptations of original literary,
dramatic or musical work.
POINTS TO REMEMBER
A. Duration of Copyright
1. There is no time limit for the protection of unpublished work. The author and thereafter his legal heirs get
protection under copyright law for perpetuity unless the work is published under provision for compulsory licence.
2. For published, literary, dramatic, musical, artistic work the term of protection is 60 years. For example if the
author dies anytime in 2010 then 60 years will be counted from 1.1.2011. After the expiry of the prescribed period
the work will fall in public domain
3. Term of copyright in posthumous, anonymous and pseudonymous work; cinematograph film, sound recording,
government work, work of public undertaking and work of international organisation is also 60 years but the term is
counted from 1st January of the year next following the date of publication. If work is published anytime during 2010
then 60 years will be counted from 1.1.2011.
The date of death of the author is irrelevant in these cases ; the relevant date is the date of publication of the work.
If a sound recording is published in 1999 by a twenty three year old producer then the copyright in sound recording
will terminate on 31.12.2060 irrespective of the factor that the producer dies in May, 2062. The term of copyright in
the aforementioned cases can expire during the lifetime of the author.
B. Non Voluntary Licenses
1. Licenses are of two kinds : Voluntary and Non-voluntary. Non-voluntary licenses are further of three kinds :
Compulsory, statutory and licenses issued after the expiry of statutory period.
2. Compulsory licence requires the copyright owner to grant necessary authorisation if certain prescribed conditions
are fulfilled. In case of compulsory licence, the copyright owner can negotiate the terms of authorization. It can be
issued :
(i) If work is withheld from public by the owner of the copyright provided it had been published or performed in
public earlier (section 31).
(ii) If any unpublished or published work communicated to the public is withheld from public. Conditions are :
the author is dead or unknown or untraceable or copyright owner is untraceable (section 31A).
(iii) If the production of work is for the benefit of the disabled persons then a person can apply for a compulsory
licence even for commercial gains (section 31B).
3. Statutory licence is one where the copyrighted work can be freely used on one condition that the user pays a fee
fixed by the competent authority to a body designated. In case of statutory licence the royalty is fixed by the
Copyright Board. It can be issued for :
(i) Sound recordings in the form of cover versions (section 31C).
(ii) Broadcasting of literary and musical works and sound recordings (section 31D).
4. Licence to produce and publish translations can be issued by Registrar on the direction of the Copyright Board
on expiry of certain statutory periods :
(i) For any literary or dramatic work -Any person may apply to the Copyright Board for a licence to produce
and publish a translation after 7 years from first publication
Page 23 of 25
(ii) For any literary or dramatic foreign work - Any person may apply to the Copyright Board for a licence to
produce and publish a translation in any common Indian language after 3 years if work is required for
teaching, scholarship or research.
(iii) For any literary or dramatic foreign work - Any person may apply to the Copyright Board for a licence to
produce and publish a translation in any language not in general use in any developed country after 1 year
if work is required for teaching, scholarship or research.
5. Licence to reproduce and publish reasonably priced or low priced editions of a literary, scientific or artistic work if
the copies of such edition are either not made available in India or have not been put up on sale in India for a period
of six months for systematic instructional activity can be issued.
C. Fair Dealing/ Permitted Acts
1. Section 52 deals with certain acts which can be done without the authorization of copyright owner and without
making any payment to any authority or the copyright owner.
2. The Amendment Act of 2012 has added a few more permitted acts to the already existing long list. The
amendments are made for the benefit of the disabled, to keep pace with digital technology, to exempt non
commercial public libraries from certain acts.
3. The tests for determining whether an act is infringement or fair dealing have been laid down by courts in various
decisions. The courts have followed the four-principle formula prescribed in the US Code namely :
(i) Purpose and character of use - commercial or educational
(ii) Nature of copyright work
(iii) Substantiality of work
(iv) Effect on potential market of copyrighted work
4. There is a difference between "Fair Dealing" and "Public Domain." If a work in public domain then there is no
application of Fair Dealing Doctrine as the work is not protected by copyright. A work comes in public domain by
any of the following three methods:
(i) The work does not fall under section 13
(ii) The copyright owner, has relinquished his copyright vide section 21
(iii) The term of copyright in the work has expired.
1 See Heinemann v. Smart Set Publishing Co. (1905-10) Mac G. Cop-Cas. 221.
2 Subs. by Act 27 of 2012, S. 14, for the words "writing signed by him" (w.e.f. 21-6-2012).
3 Report of the Subcommittee of the Intergovernmental Committee (Copyright 1978) p. 208 paras 48 and 49.
4 Paul Goldstein, International Copyright Principles Law and Practice (Oxford University Press, 2001) p. 309.
5 Substituted by Act 23 of 1983, for words "radio diffusion" w.e.f. 9.8.1984.
6 Substituted by Act 38 of 1994, for word "record", w.e.f. 10.5.1995.
7 2004 (28) PTC 131 (CB).
8 2008 (37) PTC 353 (SC).
9 2012 (50) PTC 225 (SC).
10 The Gramophone Company for India Ltd. v. Super Cassette Industries Pvt. Ltd. 2010 (44) PTC 541 (Del.); See also
ICA, 1957, section 31 (C)(5) Explanation.
11 Ibid.
12 Section 32 (2).
Page 24 of 25
13 Section 32 (3).
14 Section 32 (2).
15 Section 32 (4).
16 Section 32 (4)(i).
17 Section 32 (4)(ii).
18 Substituted by Act 23 of 1983, w.e.f. 9.8.1984.
19 Subs. by Act 23 of 1983, Section 13, for "he was unable to find" (w.e.f. 9-8-1984).
20 Subs. by Act 23 of 1983, Section 13, for "such authorisation to the publisher whose name appears from the work"
(w.e.f. 9-8-1984).
21 Subs. by Act 23 of 1983, Section 13, for "the application for the licence" (w.e.f. 9-8-1984).
22 Ins. by Act 23 of 1983, Section 13 (w.e.f. 9-8-1984).
23 Section 32A Explanation.
24 Section 32A (1).
25 Section 32A (2).
26 Section 32A (3).
27 Section 32A (i).
28 S.M. Stewart, International Copyright and Neighbouring Rights (London: Butterworths 2nd ed. 1989) p. 122.
29 Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of
the Working Group on Intellectual Property Rights (1995) p. 16.
30 Pamela Samuelson, The Copyright Grab, Wired, http://www.wired.com/wired/archive/4.01/ whitepaper.html , accessed
on 6 February, 2013.
31 See Super Cassettes Industries v. Hamar Television Network Private Ltd. 2011 (45) PTC 70 (Del.).
32 [1972] 2 Q.B. 84 at 94-95.
33 H.R. No. 94-1476, at 66 (1976) quoted in Merges, Menell, Lemley and Jorde, Intellectual Property in the New
Technological Age , Aspen Law and Business (1997) p. 458;Section 35 (2) of the Singapore Copyright Act lays down a
list of factors to be taken into account to determine whether a dealing with literary, dramatic or musical work constitutes
a fair dealing with a work.
34 Dellar v. Samuel Goldwyn, Inc ., 104 F. 2d 661 (2d. Cir. 1939).
35 Syndicate of the Press of the University of Cambridge v . R.D. Bhandari 2011 (47) PTC 244 (Delhi).
36 Oxford English Dictionary , Vol. VIII; In De Garis v. Neville Jeffres Pidder Pty Ltd. (1990) 18 I.P.R. 291 the Australian
Court defined research as the diligent and systematic inquiry or investigation into a subject in order to discover facts or
principles.
37 487 F.2d 1345 (1973).
38 CDPA 1988; section 30 (i).
39 2008 (38) PTC 385 (Del.). Also see V. Ramaiah v. K. Lakshmaiah (1989) PTC 137; EM Foster v. A.N. Parsuraman AIR
1964 Mad. 331 [LNIND 1964 MAD 15]; Kartar Singh Gyani v. Ladha Singh AIR 1934 Lah. 777 ; Ramesh Chowdhry v.
Ali Mohamed Nowsheri AIR 1965 J&K 101 ; M/s Blackwood and Sons Ltd. and Ors. v. A.N. Parsuraman and Ors. AIR
1959 Mad. 410 [LNIND 1958 MAD 18].
40 2011 (45) PTC 70 (Del.).
41 Prior to 2012 Amendment this section was provided as section 52 (1)(h).
42 2011 (47) PTC (Del.) (DB).
43 2009 (41) PTC 448 (Mad).
44 Substituted for "fifty years" by the Copyright (Amendment) Act, 1999.
45 2001 (21) PTC 57 (Del).
46 2008 (36) PTC (SC).
47 See, Academy of General Education, Manipal v. B. Manini Mallya 2009 (39) PTC 393 (SC).
Page 25 of 25
48 Subs. by Act 27 of 2012, S. 32, for the words "dramatic or" (w.e.f. 21.6.2012).
49 Subs. by Act 27 of 2012, S. 32, for cl. (n) (w.e.f. 21.6.2012).
50 Ins. by Act 27 of 2012, S. 32 (w.e.f. 21-6-2012).
51 See, "Browsing on the Internet" in Chapter X infra .
52 Inserted by Act 27 of 2012, s. 32 (w.e.f. 21-6-2012).
53 Inserted by Act 27 of 2012, S. 32 (w.e.f. 21-6-2012).
End of Document
CHAPTER VIII - Neighbouring Rights
ALKA CHAWLA
CHAPTER VIII Neighbouring Rights
1. Introduction
The term "neighbouring rights" is the English translation of the French words, "Droits voisins" meaning "near to the
musical work". Neighbouring rights have developed parallel to the copyright and are also called "related rights" or
"secondary rights" but they are in no way inferior to the "main right" i.e. the copyright. The development of
technology resulted in the need not only to ensure protection of rights of authors of literary, musical, dramatic and
artistic works but also to establish effective protection for the various intermediaries associated with the
dissemination and broadcasting of works.
The three categories of people namely, performers, broadcasting organizations and producers of phonograms who
assist intellectual creators in communicating their work to others are called "neighbors" to the author. Authors want
their creations to be communicated to as large a number of people as possible. This aim and objective of the author
cannot be achieved by him alone. The author necessarily requires intermediaries who can make his works
accessible to the people he aims to target. For example, a play written by an author can be viewed only if it is
enacted by actors (performers). A lyricist i.e. the songwriter will like his song to be heard by people but for this he
needs the help of a singer and musicians (performers). If the playwright or the lyricist wants a still larger audience
then they will require the assistance of producers of sound recordings and broadcasting organizations.
The first organized international response to the need for legal protection in the form of:
(a) rights of broadcasting organizations;
(b) rights of performing artists and
(c) rights of producers of phonograms or sound recordings
was the adoption of International Convention for the protection of performers, producers of phonograms and
broadcasting organizations, 1961 commonly called Rome Convention, 1961. It is administered jointly by UNESCO,
ILO and WIPO. In 1973 the Geneva Phonograms Convention was adopted by WIPO to protect producers of
phonograms or sound recordings against unauthorized duplication of their programmes. Then came TRIPS in 1994
administered by WTO which incorporates the protection given under Rome Convention . In 1996, the adoption of
WIPO Performances and Phonograms Treaty (WPPT) fully modernized and updated the standards in respect of
sound performances, particularly in relation to digital uses, leaving a void in the international rights’ system for
actors and other audiovisual performers.
The adoption of thebeijing Treaty on Audiovisual Performanceson 26 June, 2012 strengthened the precarious
position of performers in the audiovisual industry by providing a clearer legal basis for the international use of
audiovisual productions, both in traditional media and in digital networks. Such an instrument will contribute to
safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media,
such as television, film and video.
In India the Copyright Act, 1957 nowhere uses the term "neighbouring rights" or "related rights". However, the
Copyright (Amendment) Act, 1994 incorporated sections 37 and 38 providing special rights to broadcasting
organizations and performers respectively. The producers of phonograms were granted copyright in 1994 by
including "sound recordings" under section 13 dealing with works in which copyright subsists and enumerating the
rights of the producers of sound recordings in section 14 of the 1957 Act. The Amendment Act of 2012 inserted a
new section 38A giving exclusive rights to performers and section 38B granting moral rights to the performers for
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the first time. The old section 39A has been deleted and substituted by a new section 39A.
2. Rights of Broadcasting Organisations

(a) Broadcasting Organisation
One of the major lacunae in the Copyright Act and also in the international conventions is that a definition of
"broadcasting organization" is not given. The definition is necessary because the rights can be conferred only on a
legal person, natural or artificial. In defining the ‘broadcasting organisation’ the following three characteristics must
be taken into account by the law makers:
(i) It must be a legal entity which may either be a natural or an artificial person.
(ii) The legal entity must have the responsibility of transmitting or broadcasting programmes.
(iii) It must have the responsibility of assembling and scheduling the content of the broadcast programmes and
the consequent liability in case of violation of rights including copyright of third parties in relation to the
programmes broadcast by them.
The word "broadcast" is, however, defined by various Indian statutes and international instruments as follows:
The Prasar Bharti (Broadcasting Corporation of India) Act, 1997 defines "broadcasting" as "the dissemination of any
form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of
electromagnetic waves through space or through cables intended to be received by the general public either directly
or indirectly through the medium of relay stations and all its grammatical variations and cognate expressions shall
be construed accordingly."
Article 3 of the Rome Convention defines "broadcasting" as "transmissions by wireless means for public reception
of sounds or of images and sounds."
Article 2 of the WPPT defines "broadcasting" as, "transmission by wireless means for public reception of sounds or
of images and sounds or the representations thereof; such transmission by satellite is also "broadcasting";
transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by
the broadcasting organization or with its consent.
The Copyright Act, 1957 originally used the term "radio-diffusion" which was substituted in 1983 by "broadcast".
"Broadcast" according to section 2 (dd) means "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."
From the above definitions it is thus clear that broadcasting can be by television, radio or cable.
(b) Evolution of Broadcasting Organisations in India
In 1927, two privately owned stations started broadcasting in India. After nine years in 1936 the first Indian public
sector audio broadcaster namely, All India Radio (AIR) was established and in 1976 began the audio-visual State
run broadcaster, Doordarshan (DD). The broadcasting industry started expanding at a fast pace with the
technological developments like satellite broadcasting, cable TV, FM radio etc.
There are two kinds of radio broadcasting systems: Amplitude Modulated (AM) Signals and Frequency Modulated
(FM) Broadcasting. AM stations can broadcast their signals over large distances but the quality of signals is poor.
On the other hand FM radio cannot reach large distances but the quality of signals is much better. FM broadcasting
is globally the most popular mode of radio transmission because of it’s high quality stereophonic sound. The
Government of India as a part of its tenth five year plan tried to enhance FM coverage by inviting public sector
involvement in FM-radio broadcasting. At present there are about 245 private FM stations operating in around 90
cities in India along with the State run All India Radio. 1
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Television broadcasting had originally started with a single government controlled television channel but it has now
grown to around eight hundred and twenty five channels with crores of households having television. 2 The
television industry expanded with the advent of colour television in the eighties and cable TV in the nineties.
Haphazard development of cable television networks all over the country is a recent phenomenon that aroused the
need for uniform regulation
(c) Regulation of Broadcasting in India
The Indian Wireless Telegraphy Act, 1933 and the Indian Telegraph Act, 1855 provided the basis for regulation of
broadcasts in India. Technological advancement resulted in growth of broadcasting industry but its regulation did
not take place in a coordinated manner. The Supreme Court in 1995 in UOI v. Cricket Association of Bengal 3
observed as follows:
The Indian Telegraph Act 1885 is totally inadequate to govern an important medium like radio and television i.e.
broadcasting media. The Act was intended for altogether a different purpose when it was enacted. This is the result of law
in this country not keeping pace with the technological advance in the field of information and communication. While all the
leading democratic countries have enacted laws specifically governing broadcasting media the law in this country has stood
still rooted in the Telegraph Act, 1885.
The Parliament, thereafter, enacted the Cable Television Network (Regulation) Act, 1995 to legalize and regulate
the cable network, t he Prasar Bharati Act, 1997 to regulate the public service broadcasters and Telecom
Regulatory Authority of India Act, 1997 for regulating broadcasting and cable services. In 2002 the Cable Act was
amended to introduce the Conditional Access System (CAS).
The implementation of CAS, however, ran into rough weather and was even challenged in the Delhi High Court.
The Delhi High Court made various observations which resulted in appointment of Telecom Regulatory Authority of
India (TRAI) in 2004 for regulating broadcasting and cable services. In an attempt to regulate the industry TRAI
come out with various consultation papers like "Recommendations on Issues Relating to Broadcasting and
Distribution of TV channels" in 2004 and "Digitalisation of Cable" in 2005.
Presently the telecommunication sector is governed by Ministry of Communication through two regulators namely,
Department of Telecommunication (DOT) and Telecommunication Regulatory Authority of India (TRAI). The
broadcasting industry is governed by Ministry of Information & Broadcasting. In wake of the merging market
structures of these sectors the Government of India proposed Convergence Bill, 2000. The Bill is, however, still
pending in the Parliament.
It is significant to note that the issues relating to violation of intellectual property rights and piracy have not received
much attention from these regulatory laws. Therefore, from the perspective of copyright one has to resort to the
Indian Copyright Act, 1957 and international conventions like Berne, Rome Convention, 1961 and Satellite
Convention, 1974. In fact the various issues that need to be addressed by the contemporary existing laws on
broadcasting in India can be summarized as follows:
(1) Ideals of democracy require that broadcasting media used by people for expression of views should be
free from State control but reasonable restrictions can be imposed as required by Article 19 (2). The public
should be given access to a wide variety of programmes through radio and television broadcasting such as
terrestrial, satellite, Direct to Home (DTH) and local delivery services (cable TV including MMDS; i.e. Multi-
channel Microwave Distribution System) but subject to restrictions under Article 19 (2) which have to be
reasonable.
(2) TRAI, a public authority for the regulation of broadcasting in the interest of public should work efficiently
and may even be authorised to take up the issue of infringement of copyright of content owners and piracy
by broadcasting organisations.
(3) The growth of broadcasting industry and a simultaneous growth in duplicating techniques has brought to
the forefront the protection of the rights of the broadcasting organizations under section 37. The rights can
be divided into two categories:
(i) the exclusive right of specific protections and
Page 4 of 13
(ii) the right to prohibit certain acts.
At present the standing committee on Copyright and Related Rights of the WIPO is working on preparation
of a treaty on the protection of rights of broadcasting organizations. It is being realized the world over that
the development and convergence of information and communication technologies is increasing
possibilities and opportunities for unauthorised use of broadcasts both within and across borders. There is
a need to recognize the rights of the owners of the content carried by the broadcasts and the advantages of
providing protection to broadcasting organizations. A balance has to be maintained between the rights of
the broadcasting organizations and the public interest in education, research and access to information.
(d) Broadcasting Right of copyright owners
There are two kinds of rights with respect to broadcasting:

(i) Broadcasting right of the copyright owner under section 14 (iii) of the Copyright Act: The copyright owner
under section 14 (iii) has the" exclusive right to communicate his work to the public or authorise
communication to public of his work or any substantial part thereof." 4 Communication to the public
"includes 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 diffusionregardless of whether any member of the public sees,
hears or otherwise enjoys the work so made available". 5 This will, therefore, include communication by TV,
radio, cable, etc. Section 2 (dd) further defines "broadcast" to mean communication to public by any means
of wireless diffusion or by wire and includes a re-broadcast. This right thus encompasses the primary right
to authorize the initial broadcast of work and also the secondary rights of re-broadcasting, The
broadcasting organization, therefore, must obtain the consent or license from the copyright owner for the
purposes of broadcasting their work.
(ii) Broadcast reproduction right of the broadcasting organization under section 37 : Once the broadcasting
organization takes the license from copyright owners and broadcasts the work then the broadcasting
organisation will have a right in its broadcast according to section 37 read with section 39. Section 39 deals
with acts not amounting to infringement of broadcast reproduction right or performer’s rights. They may be
referred to as "fair dealing" provisions with respect to broadcasting.
(e) Broadcast Reproduction Right
Section 37 of the Act confers a special right to every broadcasting organization for its broadcasts, which is known
as "broadcast reproduction right". 6 This right subsists until twenty-five years from the beginning of the calendar
year next following the year in which the broadcast is made. 7 During this period if any person, without the licence of
the owner of the right i.e. the broadcasting organization, does any of the following acts of the broadcast or any
substantial part thereof, he shall be deemed to have infringed the broadcast reproduction right: 8
(a) re-broadcast the broadcast; or
(b) causes the broadcast to be heard or seen by the public on payment of any charges; or
(c) makes any sound recording or visual recording of the broadcast; or
(d) makes any reproduction of such sound recording or visual recording where such initial recording was done
without licence or, where it was licenced, for any person not envisaged by such licence; or
(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual
recording referred to in clause (c) or clause (d),
(f) Acts not amounting to infringement of broadcast reproduction right
Section 39 enumerates circumstances when the, broadcast reproduction right does not get infringed. It will not be
infringed if:
(a) a person makes any sound recording or visual recording for the private use or solely for bona fide teaching
or research purpose; or
(b) excerpts of a broadcast are used, consistent with fair dealing, in the reporting of current events or for bona
fide review, teaching or research; or
Page 5 of 13
(c) such other acts, with any necessary adaptations and modifications which do not constitute infringement of
copyright under section 52 of the Act.
Example: A law teacher records clippings of a serial’s broadcast on television and takes it to the class of law
students to make them understand the nuances of copyright law. The teacher has not infringed the broadcast
reproduction right of the Broadcasting Organization.
Example: A records a programme broadcast by Zee Channel to be seen at a more convenient time. A has not
infringed any right of Zee Channel.
Example : Doordarshan channel has the right to telecast a match played between India and Pakistan. Another
news channel recorded all the moments when runs and wickets were taken by the players and telecast the
recording in the garb of a news item without any permission from Doordarshan. This act of news channel will
amount to infringement of broadcast reproduction right of Doordarshan as the news channel has telecast a
substantial portion of the match.
(g) Protection granted to Broadcasting Organisations under the International Conventions
The Berne Convention is silent on the protection, if any, given to broadcasting organizations or the cable operators.
Article 13 of Rome Convention, however, gave four rights to the broadcasting organizations namely:
(1) The broadcasting organizations have an absolute right to authorize or prohibit the rebroadcasting of their
broadcasts. Re-broadcasting, according to Article 3 (g) means the simultaneous broadcasting by one
broadcasting organization of the broadcast of another broadcasting organization.
(2) To authorize or prohibit the fixation of their broadcasts.
(3) To authorize or prohibit the reproduction:
(i) of fixations, made without their consent, of their broadcasts.
(ii) of fixations, made in accordance with the provisions of Article 15 (Permitted Exceptions), of their
broadcasts, if the reproduction is made for purposes different from those referred to in those
provisions.
(4) The communication to public of their television broadcast if such communication is made in places
accessible to the public against payment of entrance fee.
The Convention did not give the broadcasting organizations the right to control the wire diffusion of their
programmes and did not also provide for consequences if the programmes broadcast by them violate the copyright
of the content providers.
In 1974 Satellite Convention was adopted which included provisions relating to the protection of broadcasts against
wire diffusion. Article 2 of the Convention nevertheless makes it clear that what is protected are the "programme
carrying signals" i.e. the carrier and not the content of the programme. There are mainly two types of satellite
broadcastings: 9 (1) Transmission by point to point satellite also called transmission by fixed service satellite used
for intercontinental communication between one emitting point and one or more receiving points. These
transmissions are not for direct receptions by the public. (2) Direct broadcasting satellites enable the members of
the public to receive programmes in their homes.It is clear from the Berne 10 and Rome Conventions that
broadcasting via satellites is also "broadcasting".
With the advancement of technology the distribution of programmes became possible by cable casting and
webcasting. There are two kinds of distribution of programmes:
(i) Captured broadcast programmes : In this case, the programme originates with the broadcasting
organization and is picked up for distribution by cable casters or webcasters. This amounts to rebroadcast
which is within the right of the broadcasting organization. The cable casters and the webcasters will,
therefore, have to take the permission of the broadcasting organization. 11
(ii) Cable-originated or web originated programmes : If it is a cable-originated or a web-originated programme
then the right to broadcast or re-broadcast vests with the cable caster and the webcaster who will now be
treated as broadcasting organizations.
Page 6 of 13
3. Rights of Performers
(a) Introduction
Public performance rights of a copyright owner are different from the performer’s rights in their performances. Public
performance as a right of the author of a literary, dramatic or musical work is given under section 14 (a)(iii). The
expression "in public" is not defined by the Act. It is, therefore, a question of fact for the court in every case whether
the performance was or was not in "public". The right to present the work to public by performance, therefore, is a
"copyright". Performance is made by performers who in turn have a special right known as performer’s right in their
performances under section 38
Men have been making performances for thousands of years but the protection of performer’s rights has its genesis
only in technology. Previously, the performance of dramatists or actors ended with the play in which they
performed, or of musicians with the end of the concert. The advent of phonograms, cinematograph films enabled
the fixation and reproduction of performances in both audio and audio visual forms. The technology of broadcasting
further made possible the "live" performances to reach the national and international audience in the privacy of their
homes, hotels and restaurants. The performances can thus now be exploited outside the immediate time and space
in which they were made.
The development of these technological innovations resulted in two major problems for the performers:
(i) Technological unemployment : Performers who would otherwise have been employed were replaced by
their recordings. It was cheaper for people to play recorded audio visuals than to invite the performer live
and pay him a hefty fee. The live performers,therefore got substituted by technology resulting in their
unemployment. Unfortunately their own recordings became their competitors
(ii) Bootlegging : It is the creation of unauthorized recordings from live performances or from broadcasts of live
performances. The continued progress and development in technology led to new issues of control of
performers on their performances. The concerns of the performers have been addressed in four major
international instruments: Rome Convention, 1961; TRIPS, 1994, WPPT, 1996 and Beijing Treaty, 2012.
(b) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (Rome Convention 1961)
Rome Convention, 1961, granted following rights to the performers under Article 7 :
(1) Right to prevent the broadcasting and communication to the public of their live performances without their
consent.
(2) Right to prevent fixation of their live performances without their consent.
(3) Right to prevent reproduction of the fixation of their live performances without their consent under the
following circumstances:
(i) if the original fixation was made without their consent
(ii) if reproduction is made for purposes different from these for which the performers gave their consent
if the original fixation is made in accordance with permitted exceptions under Article 15 and the
reproduction is made for purposes different from these referred to in Article 15.
Article 7 further deals with relations between performers and broadcasting organizations. If performers give their
consent for broadcasting then, it shall be a matter for the domestic law of the contracting State where protection is
claimed to regulate the protection against re-broadcasting, fixation for broadcasting purposes and the reproduction
of such fixation for broadcasting purposes. However, domestic law shall not operate to deprive performers of their
ability to control by contract, their relations with broadcasting organizations.
(c) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS, 1994)
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Article 14 of TRIPS grants the following rights to performers:

(1) to prevent fixation of their live performance on a phonogram. The coverage of this provision is narrower
than Rome Convention as it is restricted to phonogram whereas Rome Convention deals with fixation on
any medium.
(2) To prevent broadcasting by wireless means and communication to the public of their live performances.
(3) To prevent reproduction of the fixation of such performances.
There are no rights in respect of broadcasting and communication to the public of fixed performances
as in the Rome Convention.
The period of protection for performer’s rights is 50 years from the end of the calendar year in which the fixation
was made or their performance took place.
(d) WIPO Performances and Phonograms Treaty (WPPT, 1996)
WPPT gives economic rights and moral rights to the performers. Article 5 of the Treaty approximates Article 6 bis of
the Berne Convention Paris Act in requiring that performers receive rights of attribution and integrity in their live
aural performances or performances fixed in phonograms. This is the first time moral rights have been prescribed
for performers in an international agreement.
The Treaty requires that the performers receive the economic rights to fix their performances and to broadcast and
communicate unfixed performances to the public; 12 to reproduce their performances fixed in phonograms, directly
or indirectly; 13 and to distribute performances fixed in phonograms to the public. 14 The Treaty also requires a
limited right for commercial public rental of performances fixed in phonograms 15 and a "right of making available
fixed performances" that corresponds to the WIPO Copyright Treaty’s right of communication to the public and
encompasses means by which "members of the public may access them from a place and a time individually
chosen by them." 16 The Treaty gives phonogram producers comparable rights of reproduction, 17 distribution, 18
rental, 19 and "making available." 20 Article 15 entitles both performers and phonogram producers to equitable
remuneration for the use of phonograms for broadcasting or communicating to the public. 21
Like the WIPO Copyright Treaty, the Performance and Phonograms Treaty employs a formula borrowed from
Article 9 (2) of the Berne Paris Act to calibrate the limitations contracting countries may impose on exclusive rights.
22 Article 17 of the Treaty extends the Rome Convention’s minimum term of protection for a performance fixed in
phonograms to fifty years from the year of fixation; 23 in the case of phonogram producers, protection lasts for fifty
years from the phonogram’s publication or, failing publication within a prescribed time, fifty years from the year of
fixation. 24 Like the Rome Convention, the Performances and Phonograms Treaty states that its protection is not to
affect the protection of copyright in literary and artistic works. 25 It also provides that its terms shall not impair the
contracting parties’ existing obligation under the Rome Convention. 26
(e) Beijing Treaty on Audio-Visual Performance, 2012
The issue of protection of performing artists in audio-visual domain was kept out of WPPT, 1996 because no
consensus could be reached between the negotiating countries. Thereafter, several Committees of Experts and
Standing Committees were organized by WIPO to re-discuss this matter. The Diplomatic Conference, 2000 dealt
exclusively with the protection of audio-visual performers but the divergences of opinion in respect of issues related
to provisions on presumption of transfer of performer’s rights to producers were not resolved and that made the
adoption of a treaty impossible.
On June 26, 2012 WIPO adopted thebeijing Treaty on Audiovisual Performanceswhich seeks to strengthen the
precarious position of performers in the audio-visual industry by providing a clearer legal basis for the international
use of audio-visual productions, both in traditional media and in digital networks. Such an instrument will contribute
to safeguarding the rights of performers against the unauthorized use of their performances in audio-visual media,
such as television, film and video.
(f) Performers Rights in India

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Section 2 (qq), was inserted in the Act for first time by the 1994 amendment, that defined the "performer" to include
an actor, singer, musician, dancer, acrobat, juggler, conjuror, snake charmer, a person delivering lecture or any
other person who makes performance. According to section 2 (q), "Performance" in relation to performer’s right,
means any visual or acoustic presentation made live by one or more performers.
A proviso was added in 2012 to the definition of performer which provides that in a cinematograph film a person
whose performance is casual or incidental in nature and, in the normal course of the practice of the industry, is not
acknowledged anywhere including in the credits of the film shall not be treated as a performer except for the
purpose of clause (b) of section 38B. These performers are commonly called as "extras" in the film.
The Copyright Act, therefore, divides performers into three categories:

(i) Performers giving live performances : If any performer appears or engages in any performance he has a
special right in relation to such performance under section 38 which shall subsist until fifty years from the
beginning of the calendar year next following the year in which the performance is made. The amendment
of 2012 deleted sub-sections (3) and (4) to section 38 as they articulated rights in a negative sense that is
preventing third parties from making use of the performer’s rights without their consent. 27 A new section
38A has been inserted which provides the performer’s rights as the exclusive economic right to do or
authorise the doing of any of the acts in respect of the performance, without prejudice to the rights
conferred on authors namely,
(a) to make a sound recording or a visual recording of the performance, including—
(i) reproduction of it in any material form including the storing of it in any medium by electronic or any
other means;
(ii) issuance of copies of it to the public not being copies already in circulation;
(iii) communication of it to the public;
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the
recording;
(b) to broadcast or communicate the performance to the public except where the performance is already
broadcast.
The live performers have moral rights under section 38B. The moral rights were inserted for the
first time in 2012 in accordance with WPPT.
(ii) Performers in a cinematograph film with credits in the film : Once a performer, by written agreement,
consents to the incorporation of his performance in a cinematograph film he shall not, in the absence of
any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in
the same film.
The performer shall, however, be entitled for royalties in case the producer of the film makes use of the
performances for commercial use. This has been inserted by proviso to section 38A (2) in 2012. The
performers have been given economic right of claiming royalty for the first time but the section does not
mention the percentage of royalty to be shared between the producer of the film and the performer
The cinematograph performers also have moral rights namely, to be identified as a performer for his
performance and the right to integrity in their works by virtue of section 38B inserted by the amendment
of 2012 in accordance with WPPT.
(iii) Performer in a cinematograph film without any credits : These performers are commonly referred to as
"extras" in the film. They do not have any of the above stated rights in their performances except the moral
right to restrain or claim damages in respect of any distortion, mutilation or other modification of their
performance that would be prejudicial to their reputation.
(g) Acts not infringing Broadcast Reproduction Right or Performer’s Right

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The right provided to the performers and broadcasting organizations are not absolute. The legislature has specified
that rights of broadcasting organizations and performers right do not get infringed if:
(a) a person makes any sound recording or visual recording for the private use or solely for bona fide teaching
or research purpose; or
(b) excerpts of a performance are used, consistent with fair dealing, in the reporting of current events or for
bona fide review, teaching or research; or
(c) an act is done after necessary adaptations and modifications which does not constitute infringement of
copyright under section 52 of the Act. 28
(h) Moral Rights Of the Performer [Section 38B]
The Amendment of 2012 introduced moral rights for performers inconsonance with the WPPT, 1996. The
amendment states that the performer of a performance shall, independently of his right after assignment, either
wholly or partially of his right, have the right,—
(a) to claim to be identified as the performer of his performance except where omission is dictated by the
manner of the use of the performance; and
(b) to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance
that would be prejudicial to his reputation.
The two moral rights of the performers are similar to the right of authorship and right of integrity of the copyright
owners.
Prior to the amendment of 2012 parody and mimicry were held to be legally permissible but it is yet to be seen how
the courts will treat parody and mimicry performed by performers post 2012 in view of newly inserted clause (b) to
section 38B.
The law clarifies that mere removal of any portion of a performance for the purpose of editing, or to fit the recording
within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be
prejudicial to the performer’s reputation. This clarification has been added probably to create a balance between the
rights of the producer of a programme and the performers.
The legal representatives of the performer cannot exercise his moral rights unlike the legal representatives of
owners of copyright. It is not clear why the legislature has legislated such a discriminatory provision.
4. Certain provisions of thecopyright Act to apply in case of broadcast

reproduction right and performer’s rights
The following provisions of the Act with necessary adaptations and modifications apply to broadcast reproduction
right in any broadcast and performers’ right in any performance as they apply to copyright in a work:
Section 18: Assignment of copyright,
Section 19: Mode of assignment,
Section 30: Licences by the owners of copyright,
Section 30A: Application of section 19
Section 33: Registration of copyright society
Section 33A: Tariff scheme by copyright society
Section 34: Administration of rights by copyright society

Page 10 of 13
Section 35: Control over copyright society
Section 36: Submission of returns and reports
Section 53: Importation of infringing copies,
Section 55: Civil remedies for infringement of copyright,
Section 58: Rights of owner against persons possessing or dealing with infringing copies,
Section 63: Offence of infringement of copyright or other rights conferred by this Act
Section 64: Power of police to seize infringing copies,
Section 65: Possession of plates for purposes of making infringing copies,
Section 65A: Protection of technological measures
Section 65B: Protection of rights management information
Section 66: Disposal of infringing copies or plates for purposes of making infringing copies. 29
It is also provided that where copyright or performer’s right subsists in respect of any work or performance that has
been broadcast, no licence to reproduce such broadcast shall take effect without the consent of the owner of rights
or performer, as the case may be, or both of them.
Provided further that the broadcast reproduction right or performer’s right shall not subsist in any broadcast or
performance if that broadcast or performance is an infringement of the copyright in any work.
The broadcast reproduction right or the performer’s right shall not affect the separate copyright in any work in
respect of which, the broadcast or the performance, as the case may be, is made.
The Amendment of 2012 has provided that a copyright society shall be registered for administration of rights of
broadcasting organizations and performers. For this reason the words "sections 33, 33A, 34, 35 and 36" were
inserted in section 39A. WIPO had observed 30 that it is not practical for a broadcasting organization to seek specific
permission from every author for the use of every copyrighted work. An average of 60,000 musical works are
broadcast on television every year, so thousands of owners of rights would have to be approached for
authorization. The very impracticability of managing these activities individually, both for the owner of rights and for
the user, creates a need for"collective management organizations", whose role is to bridge the gap between them
in these key areas, among others. Collective management organizations are an important link between creators
and users of copyrighted works (such as radio stations) because they ensure that, as owners of rights, creators
receive payment for the use of their works.
Collective management organizations most commonly take care of the following rights:
(i) The right of public performance (music played or performed in discotheques, restaurants, and other public
places);
(ii) The right of broadcasting (live and recorded performances on radio and television);
(iii) The mechanical reproduction rights in musical works (the reproduction of works in CDS, tapes, vinyl
records, cassettes, mini-discs, or other forms of recordings);
(iv) The performing rights in dramatic works (theater plays);
(v) The right of reprographic reproduction of literary and musical works (photocopying)
5. Foreign reciprocity
Page 11 of 13
Section 40A was incorporated in the Act in 1999 to extend the rights conferred on broadcasting organisations and
performers to those foreign countries which do not at present enjoy these rights. It reads:
If the Central government is satisfied that a foreign country 31 has made or has undertaken to make such provisions
for the protection in that foreign country of the rights of performers as is available under this Act, it may, by order
published in the Official Gazette, direct that the provisions of Chapter VIII shall apply—
(a) to performances that took place outside India to which the order relates in like manner as if they took place
in India;
(b) to performances that are incorporated in a sound recording published in a country to which the order
relates as if it was published in India. 32
However, if it appears to the Central Government that a foreign country does not give or has not undertaken to give
adequate protection to rights of performers, it may, by order published in Official Gazette, direct that the provisions
of this Act which confer right to performers will not apply to performers which are based or incorporated in such
foreign country or are citizens of such foreign country and are neither incorporated in nor citizens of India. 33
POINTS TO REMEMBER
Neighbouring rights have developed parallel to the copyright and are in no way inferior to the ’main rights’ i.e. the
copyright.
1. Neighbouring rights are also called secondary rights or related rights
2. The three rights covered under neighbouring rights are:

(a) rights of broadcasting organizations;
(b) rights of performing artists and
(c) rights of producers of phonograms or sound recordings
4. If any person, without the licence of the owner of the right i.e. the broadcasting organization, does any of the
following acts of the broadcast or any substantial part thereof, he shall be deemed to have infringed the broadcast
reproduction right;
(i) re-broadcast the broadcast; or
(ii) causes the broadcast to be heard or seen by the public on payment of any charges; or
(iii) makes any sound recording or visual recording of the broadcast; or
(iv) makes any reproduction of such sound recording or visual recording where such initial recording was done
without licence or, where it was licenced, for any person not envisaged by such licence; or
(v) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual
recording referred to in clause (c) or clause (d),
5. The International Convention for the related rights are:

(i) International Convention for the protection of performers, producers of phonograms and Broadcasting
organizations, 1961 commonly called Rome Convention, 1961
(ii) In 1973 the Geneva Phonograms Convention was adopted by WIPO to protect producers of phonograms
or sound recordings against unauthorized duplication of their programmes.
(iii) TRIPS in 1994 administered by WTO which incorporates the protection given under Rome Convention.
(iv) In 1996, the adoption of WIPO Performances and Phonograms Treaty (WPPT) fully modernized and
updated the standards in respect of sound performances, particularly in relation to digital uses
(v) The Beijing Treaty on Audiovisual Performanceson 26 June, 2012
Page 12 of 13
6. Public performance rights of a copyright owner are different from the performer’s rights in their performances.
Public performance as a right of the author of a literary, dramatic or musical work is given under section 14 (a)(iii).
7. Performer’s rights are special rights given under section 38 which shall subsist for fifty years from the
performance.
8. Section 38A gives exclusive rights to performers for making sound or visual recording of their performance,
reproduction right including storing of it in any electronic medium, issuance of copies to the public, communication
to the public, resale and commercial rental right.
9. The Copyright Act recognises three kinds of performers:

(i) Performers giving live performances: They have economic rights under section 38A and moral rights under
section 38B.
(ii) Performers incorporating their performance in films and getting credit for that: They lose their performers
rights which now vest in the producer with a rider that if producer uses their performance for any other
commercial purpose then they will be entitled to royalty. They are entitled to moral rights also.
(iii) Extras in the films are entitled to only the moral right of integrity.
10. If a producer of the film while editing removes a portion of the performance because of the time constraints or
purely for technical reasons then the performer cannot claim that his reputation is prejudicially affected.
11. The legal representatives of the performer cannot exercise his moral rights unlike the legal representatives of
owners of copyright.
12. Section 39 enumerates certain acts the doing of which will not infringe the broadcast reproduction right or the
performer’s rights. For example making of a recording for private use, teaching or research purposes, using of
excerpts for reporting current events or review or research, etc.
13. The amendment of 2012 has provided that the provisions regarding registration of copyright societies,
administration, fixing of tariff rates, etc. with appropriate modifications will be applicable to the broadcasting
organizations and performers. Till now there is no copyright society for these two categories. However SCRIPT is
registered for copyright in films and television.
1 www.indiabiznews.com accessed on 4 February, 2013.

2 www.indiantelevision.com/headlines accessed on 4 February, 2013.
3 (1995) 2 SCC 161 [LNIND 1995 SC 231].
4 See Chapter VI supra .
5 . See section 2 (ff).
6 Section 37 (1), Copyright Act, 1957.
7 Section 37 (2), Ibid.
8 Radio and television are persuasive and convincing instruments for public education. A provision authorize the use of
copyright works by the broadcasting media in their educational programs subject to the payment of equitable
remuneration to the copyright owner would serve the larger public interest.
9 Stephen M. Stewart , International Copyright and Neighbouring Rights (London: Butterworths, 1983) p. 198.
10 Article 11 bis.
11 See section 37 (3)(a) of Copyright Act, 1957.
12 WIPO Performances and Phonograms Treaty Art. 6.
13 Ibid. Art. 7.
14 Ibid. Art. 8 (1). Article 8 (2) leaves it to the contracting party to determine whether and to what extent it will apply the
doctrine of exhaustion, or first sale.
Page 13 of 13
15 Ibid. Art. 9.
16 Ibid. Art. 10.
17 Ibid. Art. 11.
18 Ibid Art. 12 .
19 Ibid. Art. 13.
20 Ibid. Art. 14.
21 Ibid. Art. 15.
22 Ibid. Art. 16.
23 Ibid. Art. 17 (I).
24 Ibid. Art. 17 (II).
25 Ibid. Art. 1 (2).
26 Ibid. Art. 1 (1).
27 Section 38 (3): During the continuance of a performer’s right in relation to any performance, any person who, without
the consent of the performer, does any of the following ascts in respect of the performance or a substantial part thereof,
shall be deemed to have infringed the performer’s rights:
(a) makes a sound recording or visual recording of the performance; or
(b) reproduces a sound recording or visual recording of the performance, which sound recording or visual recording was-
(i) made without the performer’s consent; or
(ii) made for purposes different from those which the performer gave his consent or
(iii) made for purposes different from those referred to in section 39 from a sound recording or visual recording which was
made in accordance with section 39; or
(c) broadcasts the performance except where the broadcast is made from a sound recording or visual recording other than
one made in accordance with section 39, or is a re-broadcast by the same broadcasting organization of an earlier
broadcast which did not infringe the performer’s right; or
(d) communicates the performance to the public otherwise than by broadcast, except where such communication to the
public is made from a sound recording or a visual recording or a broadcast
(4) once a performer has consented to the incorporation of his performance in a cinematograph film, the performer looses
the right to complain of infringement of that performance which means he assigned his entire rights on that
performance to the producer of the cinematograph film.
28 Section 39, Copyright Act, 1957.
29 Section 39A, Ibid.
30 . WIPO, 2004, Secrets of Intellectual Property : A Guide for Small and Medium-sized Exporters.
31 Other than a country with which India has entered into treaty or which is a party to convention relating to rights of
performers to which India is also a party.
32 Section 40A.
33 Section 42A.
End of Document
CHAPTER IX - Collective Administration of Rights through Copyright
Societies
ALKA CHAWLA
CHAPTER IX Collective Administration of Rights through Copyright

Societies
1. Introduction
The field of copyright and related rights have expanded enormously with the technological progress in the last
several decades, which has brought in new ways of spreading creations. The medium of the printed word has been
supplemented progressively by media for communicating audio and visual recordings in the form of phonograms,
music cassettes, films, videograms and dissemination of work via the Internet. All these technological innovations
and developments have on the one hand created new opportunities for economic exploitation of intellectual works,
but on the other hand have posed serious challenges to effective protection of these new opportunities. Individual
control of creator’s copyright has become impracticable or even impossible for the following reasons:
(i) the number of users of their work has expanded enormously,
(ii) the infringers are too many for the copyright owners to deal with them individually
(iii) management of joint works involve several owners of copyright.
In practice, no copyright owner administers his copyright alone, as it is beyond the ability of any individual copyright
owner to authorize every use of his work or to enforce his rights effectively with every potential user worldwide.
To overcome this problem the copyright owners resorted to collective administration of rights through the copyright
societies formed for administering their rights. Collective control and reward through collecting societies or collective
management organizations called copyright societies has become not just desirable but inevitable. 1
2. Working of Copyright Societies

A copyright society administers the rights of its members only i.e. rights of those who have given the organization a
mandate to act on their behalf. Various functions performed by these organizations include:—
(i) licensing works in which they hold the copyright or for which they act as agent on behalf of their members
for specific uses;
(ii) monitoring use of licensed works and collecting revenues;
(iii) distributing revenues as royalties to members;
(iv) entering into reciprocal arrangements with foreign collecting societies to collect and distribute local
royalties to foreign rights holders and to receive and distribute royalties earned overseas to local rights
holders. 2
The collective organizations, deduct a specified percentage from the fees paid by users of work to meet their
administrative costs. An argument, which is sometimes advanced against collective administration, is that the
administrative costs involved are too high and that as a consequence too small a portion of the amount paid by the
users finds its way into the pockets of the right owners. 3 Those who advance this argument frequently overlook that
in the absence of collective administration, the transactional costs involved in users having to seek out and deal
Page 2 of 10
CHAPTER IX - Collective Administration of Rights through Copyright Societies
with individual right owners are likely to be considerably higher than the costs of collective administration
3. Copyright Societies in India

A copyright society is defined under section 2 (ffd) as a society registered under sub-section (3) of section 33. In
India, sections 33 o 36A of the Copyright Act, 1957 regulate such copyright societies. Prior to coming into force of
the Copyright (Amendment) Act, 1994, sections 33-36 dealt with Performing Rights Societies which carried on the
business of issuing or granting licences of the performances in India of any work in which copyright subsisted. The
activities of this society were limited to copyright subsisting in literary, dramatic and musical work which can be
performed in public. The 1994 Amendment extended the operation of legal provisions in respect of all rights relating
to all classes of work.
4. Registration of the copyright society [Section 33]

A copyright society has to be registered with the Central Government under section 33 of the Copyright Act. For this
purpose, an application, fulfilling the conditions prescribed under the rules, has to be made to the Registrar of
Copyright who shall submit the application to the Central Government. 4 Before granting the registration, the Central
Government shall take into consideration the following factors. 5
(i) the interest of the authors and other owners of rights under the Act;
(ii) the interest and convenience of the public;
(iii) the interest of the group of persons who are most likely to seek licences in respect of the relevant rights,
and
(iv) the ability and professional competence of the applicants.
The Central Government, however, ordinarily registers only one copyright society to do business in
respect of the same class of works. 6 This provision is protective in nature as the existence of two or
more societies in the same field may fade out or even wash out the advantages of collective
administration of rights.
5. Administration of rights of owner by the copyright society [Section 34]

A copyright society may, subject to certain prescribed conditions, accept from an author and other owners of rights
exclusive authorization to administer any right in any work by issue of licences or collection of licence fees or both. 7
Thus, the Act gives the choice to the authors and right owners to authorise the copyright society for either full
collective administration or partial collective administration. Full collective administration is based on exclusive
rights and includes negotiations of remunerations to be paid for, and other conditions of uses, authorizations for
uses, monitoring of uses, enforcement of rights and collection of remuneration and its distribution to right owners.
Partial collective administration of exclusive rights is also possible for example, the owner of rights may give
authorization directly to the licensee, and a collective administration organization may be authorized only to collect
and distribute remuneration. 8
After obtaining the authorization, the copyright society, subject to certain prescribed conditions, may:
(a) issue licences under section 30 (power of the owner to issue licences) in respect of any rights under this
Act;
(b) collect fees in pursuance of such licences;
Page 3 of 10
(c) distribute such fees among owners of rights after making deductions for its own expenses. The basic
questions before a collective administration societies are: How much is to be paid to authors? Rates of
remuneration to authors should depend upon actual use of their works. Societies in some countries,
however, pay fixed rates of royalty to different authors of copyrighted work irrespective of actual use.
(d) perform any other functions consistent with the provisions of section 35 (control over the society by the
author and other owners of rights). 9
The societies generally issue two distinct types of licences: blanket licences and specific licences.
Blanket licences authorize copyright users to use, for a specific period of time, all works for which the licencing body
is responsible. Such a licence might for example, provide a broadcaster with a single annual authorization
encompassing many thousands of songs owned by thousands of composers, lyricists and publishers.
Specific licences , sometimes characterized as "transactional licences" or "individual licences", deal with particular
uses of a specific work in a particular context and for a specific time for example to play songs on the eve of New
Year or Christmas. 10
The copyright society is entitled to deduct a fee, not exceeding fifteen percent of the total collection, from the grant
of licences on account of administrative expenses incurred by it. 11
In Federation of Hotels & Restaurants Association of India v. UOI 12 the constitutional validity ofsections 2 (, 13 o 33
(3) of the Copyright Act, 1957 was challenged as being violative of Articles 14 and 19 (1) (g) of the Constitution. It
was also contended by the petitioners that section 34 is unconstitutional as it bestows uncontrolled, unregulated
and unbridled powers on copyright societies with regard to issuance of licences to various bodies and
organizations, collecting fees in pursuance of such licences and distributing such fees among owners of these
rights. It was further contended that section 33 creates monopoly in favour of the societies. Because of the
monopoly, such societies hold the consumers to ransom by charging exorbitant licence fees.
The court held all the impugned provisions to be constitutional. It further held that the broadcast or dissemination of
music to the public at large is neither a statutory responsibility nor a duty of public character. The copyright and
performing societies IPRS/PPL are an amalgamation of conglomeration of individual/owners who are fully entitled to
claim the highest premium for enjoyment of the fruit of their labour or intellect, subject to any statutory restraints
imposed by the Parliament.
The Delhi High Court in Event and Entertainment Management Association v. Union of India and Ors. 13 reiterated
the law laid down in Federation of Hotels & Restaurants Association of India v. UOI and held that the working of the
copyright societies continues to be monitored and guided by the Copyright Act. There are adequate safeguards
provided within the Copyright Act to check the consequences of any perceived excessive delegation. The Copyright
Act does not provide a free run as regards the fixation of tariffs and royalties in copyright works to copyright
societies.
Pursuant to the above stated judgments, section 33A was inserted by the Amendment Act of 2012 which introduced
more safeguards on the monopoly of copyright societies in fixing tariff rates. It states that every copyright society
shall publish its tariff scheme in such manner as may be prescribed.
If any person is aggrieved by the tariff scheme then he may appeal to the Copyright Board and the Board may, if
satisfied after holding such inquiry as it may consider necessary, make such orders as may be required to remove
any unreasonable element, anomaly or inconsistency therein. The only condition laid down by the law is that the
aggrieved person shall pay to the copyright society any fee as may be prescribed.
The Copyright Board is empowered to fix an interim tariff and direct the aggrieved parties to make the payment
accordingly pending disposal of the appeal.
The society has to frame a Distribution Scheme setting out the procedure for collection and distribution of the fees
and royalties specified in the tariff scheme, among the owners of copyright. 14 Any distribution under the Distribution
Scheme shall, as far as possible, be in proportion to the income of the copyright society from actual use of the work
or works of each owner of rights. 15
Page 4 of 10
6. Agreement between copyright society and similar foreign society [Section

34 (2)]
The Act empowers the copyright society to enter into agreement with any foreign society or organization
administering similar rights, to entrust to such foreign society or organization the administration in any foreign
country of rights administered by that copyright society in India or vice versa . 16 A copyright society shall not permit
any discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and
other works. 17
7. Control over the copyright society [Sections 35 and 36]

The copyright societies are subject to two-fold control—
(i) by the authors and owners of rights and
(ii) by the Central Government.
The authors and owners of rights have collective control over the copyright society, which administers their rights.
The copyright society, in such manner as may be prescribed, has to:
(1) obtain the approval of such authors and owners of rights for its procedures of collection and distribution of
fees;
(2) obtain their approval for the utilization of any amounts collected as fees for any purpose other than
distribution to the authors and other owners of rights; and
(3) provide to such owners regular, full and detailed information concerning all its activities, in relation to the
administration of their rights. 18
(4) Every copyright society has to submit to the Registrar of Copyright such returns as may be prescribed. 19
The copyright society should distribute all fees among the right owners in proportion to the actual use of
their works. 20 Any officer duly authorised by the Central Government in this behalf may call for any report
and also call for any records of any copyright society for the purpose of satisfying himself that the fees
collected by the society in respect of rights administered by it are being utilized or distributed in accordance
with the provisions of this Act. 21
The Government supervision of the establishment and operation of collective organizations is also required. Such
supervision can guarantee:
(i) that only those organizations operate which can provide the legal, professional and material conditions
necessary for an appropriate and efficient administration of rights;
(ii) that the collective administration system be available to all right owners who need it;
(iii) that the terms of membership of the organizations be reasonable and,
(iv) that the basic principles of an appropriate collective administration (e.g., the principle of equal treatment of
various categories of right owners) be duly respected. 22
(v) The Amendment Act of 2012 added new conditions in order to have a stronger control of the government
over these societies. It stipulated that the registration granted to a copyright society shall be only for a
period of five years and may be renewed from time to time before the end of every five years on a request
in the prescribed form and the Central Government may renew the registration after considering the report
of Registrar of Copyright on the working of the copyright society under section 36. It states further that
every copyright society already registered before the coming into force of the Copyright (Amendment) Act,
2012 shall get itself registered under this Chapter within a period of one year from the date of
commencement of the Copyright (Amendment) Act, 2012. If a copyright society is managed in a manner
detrimental to the interest of the authors and owners of the rights concerned, the Central Government, after
holding an enquiry, may cancel its registration. 23 The Central Government may also suspend the
registration of a society pending enquiry for a period not exceeding one year during which period it may
Page 5 of 10
appoint an administrator to discharge the functions of the society. 24 Moreover, the owner of rights is free to
withdraw his authorization by giving a 60 days notice in case the copyright society fails to fulfill its
commitments under the agreement. 25
It is noteworthy that in spite of liaison with the copyright societies, the owner of copyright shall, in his individual
capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a
member of the registered copyright society. 26 But the business of issuing or granting license in respect of literary,
dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out
only through a copyright society duly registered under this Act. 27
In India, so far only four such copyright societies have been registered with the Central Government dealing with
the different classes of works.
(i) Phonographic Performance Ltd . (PPL) is the copyright society in respect of sound recordings.
(ii) Indian Performing Rights Society Limited (IPRS) is the only national copyright society in the country, which is
permitted to commence and carry on the copyright business in musical works. 28
(iii) Society for Copyright Regulation of Indian Producers of Films and Televisions (SCRIPT) deals with the
copyright in cinematograph films and televisions.
(iv) Indian Reprographic Rights Organization (IRRO) was registered in the year 2000 for granting reprographic and
digital licences on behalf of its members namely, authors and publishers.
8. Music and Copyright Societies in India

The two societies in India dealing with musical copyrights are the Indian Performing Right Society Limited (IPRS)
and the Phonographic Performances Limited (PPL).
(a) The Indian Performing Right Society Limited (IPRS)
It is an association of composers, authors and publishers of musical works. IPRS is a company limited by guarantee
and registered under the Companies Act, 1956. It is a non-profit making body set up under the provisions of section
33 of the Copyright Act, 1957 to administer and control the performing rights and mechanical rights of its members.
This society came into existence on 23rd August, 1969. 29
The society administers and controls the performing rights, the mechanical rights and the synchronization rights in
musical works on behalf of its members and those of its sister societies with which it has reciprocal agreements.
The IPRS today has direct reciprocal agreements with foreign societies namely, APRA, MACP, KCI, PRS,
COMPASS and CASH. Thus, IPRS is contracted to 194 country societies the world over. This means that Indian
repertoire is protected in those countries and IPRS represents their rights in India.
Today, the society has about 757 local members consisting of 424 composers, 253 authors and 80 publishers. On
their membership of the society, they assign all their past, present and future rights to IPRS. Nearly all composers,
songwriters and publishers of musical works are members of IPRS. These members amongst them control nearly
97% of the Indian music. Thus, IPRS controls a wide repertoire of Indian musical works and foreign musical works
belonging to other societies.
As the society is a non-profit making body, all the royalties it collects are distributed to its members and affiliated
societies after deduction only of its administration costs subject to a maximum of 15%. The net royalties are
distributed to the members as far as possible in accordance with the extent to which their particular works have
been broadcast or publicly performed. The royalties apportioned to each work are then distributed among the
interested members and affiliated societies in accordance with their contracts and with the rules of the society.
(b) The Phonographic Performances Ltd. (PPL)
It is the copyright society in respect of sound recordings, registered with the Registrar of Copyright in 1996. It is
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established to authorize the use of sound recordings and to negotiate their terms of remuneration with users in
broadcasting, television, Internet or other category of users like hotels, discotheques, restaurants etc. It administers
rights on behalf of about 65 recording companies which are its members like HMV (Sa Re Ga Ma India) , Tips,
Universal, Venus, Sony Music, Times Music etc.
Any performance of Indian or International Music from sound recordings of PPL members without a licence from
PPL constitutes an infringement of copyright under the Copyright Act, 1957. Various licences are given by PPL to
the users of sound recordings, some of these are: 30
1. Television License - Applicable to shows which involve usage of sound recordings e.g. Boogie Woogie on SET.
2. Telecom Related Licenses- For Ring Tones, Music Messaging, IVRS and other telecom value added services
involving the usage of music.
3. Radio License - All private and government owned radio stations.
4. Internet License - This license is granted to websites for streaming of music, but no downloads are allowed.
5. Events License - This license is granted to organiser of events where performers perform on stage on recorded
sound recordings e.g. Filmfare and Femina Awards
6. Public Performance License - This is associated with any public performance. It covers a whole range of activity
from playing of music in cinema halls to hotels, restaurants etc.
In IPRS v. Muthoot Finance Private Ltd ., 31 IPRS filed a suit seeking an order of temporary injunction restraining
the respondents and their agents from in any manner communicating any of the musical and literary works of its
members in the form of broadcast on their private FM radio stations.
The members of IPRS had executed deeds of assignment assigning their public performing rights in respect of their
music to IPRS. The respondent contended that since it had acquired license from another registered society
namely, Phonographic Performance Ltd. (PPL) registered under section 33 (3) of the Copyright Act, 1957 for
issuing licenses with respect to sound recordings it does not have to take license from IPRS.
The court held that sound recording is a separate class of work from that of literary and musical work and that
copyright in a sound recording shall not affect the separate copyright in any work in respect of which a sound
recording is made. 32 Therefore, unless the respondent obtains license from IPRS, they have no right to broadcast
the songs of the members of IPRS.
In Music Broadcast Pvt. Ltd. v. Phonographic Performances Ltd ., 33 the issue before the Copyright Board was
reasonable determination of tariff to be payable by radio broadcasters for exploiting by way of broadcast the sound
recordings administered by Phonographic Performance Ltd. (PPL).
To settle the issue the Copyright Board (hereinafter referred to as CB) went into the historical evolution of enacting
section 31 of the Copyright Act dealing with compulsory licenses in works withheld from public. The CB first
delineated the Constitutional backdrop under which the provisions of Copyright Act, 1957 operate. It reiterated the
settled law since Romesh Thappar’s case 34 that communication through any media may be electronic, print or
whatsoever else has its Constitutional protection under Article 19 (1) (a) 35 of the Constitution.
CB then explained the evolution of radio in India. Radio since its start in the pre-Independence era had been in the
State sector till 1995 when the process of privatization started in small ways. In 1999, Government of India
launched the First Phase of private sector involvement in FM radio broadcasting. During the Ninth Five Year Plan, it
adopted a policy for improving variety of content and quality of radio broadcasting. This heralded a technological
shift from medium wave (MV) to Frequency Modulation (FM) radio broadcasting. As part of Phase I of the policy on
expansion of FM radio broadcasting services through private agencies, FM spectrum was made available to private
broadcasters and they were given their own frequencies to launch their channels. Unfortunately, the licensing policy
during Phase I was so designed that it was virtually impossible for the broadcasters to make any profit. The biggest
drawback being, the high annual license fee, which was "fixed" i.e. not dependant on the revenue earned by the
broadcaster.
In 2005, the Government introduced Phase II for giving FM radio business a boost. The Phase II policy changed the
Page 7 of 10
license fee structure from fixed license fee to revenue sharing model after taking into consideration the
recommendations given by TRAI and Mitra Committee on Radio Broadcast Policy of 2004, experiences of Phase I
and wide range consultations. The CB concluded that the Government all through had been pursuing the growth
and development of FM radio broadcasting in private sector as a vehicle of societal development which was hitherto
pursued only in the State sector.
The CB then went into the question of what is a reasonable tariff. For answering the question, the CB held that
comparisons or analogies cannot be drawn between TV broadcasters and radio. It preferred the revenue sharing
model but specified certain reasonable terms and conditions to be followed by the music companies and the PPL.
9. Reprography and Collecting Societies

There are about 35 RROS around the world who are members of International Federation of Reproduction Rights
Organization (IFRRO). 36 All types of RROS have been able to achieve substantial earnings, to the benefit of
authors and publishers around the world. Establishment of an RRO provides an important support mechanism for
the implementation of national copyright legislation and increase the earnings of copyright holders thus encouraging
and supporting their creative output. For example, in Sweden BONUS , an RRO was set up in 1973, KOPIOSTO in
Finland in 1978, Copy Dan in Denmark in 1980, KOPINOR in Norway in 1980 , Fjolis in Iceland in 1985. In India,
though an IRRO has been registered under the Copyright Act but it is not efficiently operative.
In India 37, solutions to the problems posed by reprography on the right of copyright owners should be formulated
only after a thorough consideration of the practical circumstances like poor economic background of copiers i.e. the
students and researchers; 38 the need of a developing country in having more information; 39 the kind of material
which is photocopied, 40 the category and the number of users of such material, 41 etc. The magnitude of these
practical problems alongwith the efforts undertaken at international and national levels has to be studied before
devising an economic, fair and workable system for collection and distribution of royalties which would compensate
individual authors in relation to the extent to which their works are copied. This work should be taken up by the
collecting societies in consultation with the authors, publishers, association of libraries, photostat machine
operators, and some users chosen by method of sampling.
The Library Associations should get together and work on drafting a "Reproduction of Material Code " which should
specify the policy for determining as to whether any act of copying is "fair dealing" in consultation with authors and
users i.e. research organizations, educational and professional institutions. 42 The assistance can also be sought
from non-government organizations (NGOs) who are actively involved in developmental programmes such as
education, research, scientific development etc. This code should act as a guideline for authors and users of
information.
The question of unauthorized photocopying and monetarily compensating the authors evoked a great deal of
discussion in our country. As a result, Copyright (Second Amendment) Bill, 1992 and Copyright Cess Bill, 1992
were introduced in the Lok Sabha in 1992. The latter was passed as being complementary to the former which had
sought to amend the provisions of the Copyright Act, 1957 in order to make provision for payment of remuneration
to the owners of rights where reproduction of works was done by reprographic equipment or by means of devices
such as tape recorders and cassette recorders and where such reproduction would not under the existing laws
amount to infringement. The Parliament passed the Copyright (Amendment) Act, 1994 but the Copyright Cess Bill,
1992 lapsed.
Copyright Cess Bill, 1992 proposed to levy 43 and collect by way of cess for the purposes of Copyright Act a duty of
excise on copying equipment in addition to excise duty liable on equipment under the Central Excises and Salt Act,
1944. Similarly, proposed to levy and collect customs duty on imported copyright equipment in addition to custom’s
duty leviable under Customs Act, 1962 was made. 44 Clause 5 provided that the proceeds of excise and customs
duty collected under sections 3 and 4 shall be credited to the Consolidated Fund of India. The Central Government,
may then, if Parliament by law so prescribed, pay to the copyright society from time to time out of such proceeds for
being utilized for the purposes of the Copyright Act. Section 33A further provided that Central Government may
appoint a copyright society for the purposes of framing a scheme for determining the quantum of remuneration
payable to individual copyright owners having regard to the number of copies of work in circulation.
Page 8 of 10
10. Society for Performers and Broadcasting Organizations

Section 39A is amended by the amendment of 2012 and provides that all provisions relating to copyright societies
namely, sections 33, 33A, 34, 35 and 36 with necessary adaptations and modifications shall apply in relation to
broadcast reproduction right and performer’s rights in any performance as they apply in relation to copyright in a
work. 45
A provision is therefore made whereby the performers can get a society registered to carry on the business of
issuing or granting licenses in respect of their performances under section 33. A similar society can be registered
for the benefit of broadcasting organizations.
POINTS TO REMEMBER
1. Copyright Society is a society registered under section 33 (3).
2. Ordinarily only one society is registered for one class of work.
3. Four copyright societies are registered in India : IPRS, PPL, SCRIPT, IRRO.
4. Functions of copyright societies are:
(Issue licences under section 30
(Collect fee in pursuance of such licences
(Distribute such fee among owner of rights after making deductions for its own cost.
(Perform any other functions consistent with section 35.
(Obtain approval of authors and owners of rights for its procedure for collection and distribution of fees.
(Obtain their approval for utilisation of any amounts collected
(Provide them with regular, detailed and full information concerning all its activities
5. There is a dual control over copyright societies: 1) Authors and owners of rights and 2) Central Government.
6. Central Government registers a society after taking into account following factors:
(Interests of authors and owners.
(Interests and convenience of the public
7. Copyright society is registered for five years and may be renewed from time to time. The Central Government will
grant renewal only after considering the report of the Registrar of copyrights on the working of the copyright society
under section 36.
8. Every copyright society has to publish its tariff scheme. Any person aggrieved by the tariff scheme can appeal to
the Copyright Board. The Board has the power to remove any unreasonable element or anomaly or inconsistency
therein.
9. A copyright society can enter into reciprocal agreements with foreign societies.
10. The Delhi High Court has upheld the constitutionality of sections 33 and 34.
Page 9 of 10
11. Section 39A is amended by the amendment of 2012 and provides that all provisions relating to copyright
societies namely, sections 33, 33A, 34, 35 and 36 with necessary adaptations and modifications shall apply in
relation to broadcast reproduction right and performer’s rights in any performance as they apply in relation to
copyright in a work.
1 International Federation of Reproduction Rights Organizations, IFRRO General Papers I, Collective Administration ,
http://www.ifrro.org/upload/documents/Collective-Administation-1997.pdf accessed on 6 February, 2013; see also S.M.
Stewart, International Copyright and Neighbouring Rights (Butterworths 1989 2nd ed.); W.R. Cornish, Intellectual
Property (Sweet and Maxwell 2nd ed. 1993); Gerald Dworkin supra note 22 Copinger and Skone James, Copinger on
Copyright (Sweet and Maxwell 13th ed. 1991).
2 http://www.caslon.com.au/colsocietiesprofile.htm (accessed on 6 February, 2013).
3 S.M. Stewart, International Copyright and Neighbouring Rights (Butterworths 1989 2nd ed.).
4 Section 33 (2).
5 Section 33 (3).
6 Proviso to section 33 (3).
7 Section 34 (1).
8 Collective Administration of Copyright and Neighboring Rights, WIPO Publication No. 688 (E), Geneva, 1990 at p. 87.
9 Section 34 (3).
10 http://www.caslon.com.au/colsocietiesprofile.htm . accessed on 6 February, 2013.
11 Rule 14H (2), the Copyright Rules, 1958.
12 2011 (46) PTC 169 (Del.) DB.
13 2011 (46) PTC 405 (Del.), Also see, IPRS v. Eastern India Motion Pictures Association , (1977) 2 SCC 820 [LNIND
1977 SC 128].
14 Rule 14K (1), Copyright Rules, 1958.
15 Rule 14K (2), Ibid.
16 Section 34 (2), Copyright Act, 1957.
17 Proviso to section 34 (2), Ibid.
22 Collective Administration of Copyright and Neighboring Rights, WIPO Publication No. 688 (E), Geneva, 1990 at p. 89.
25 Rule 14G (2), the Copyright Rules, 1958.
26 Proviso to section 33 (1), The Copyright Act, 1957.
27 Second proviso to section 33 (1).
28 http://www.iprs.org/cms/IPRS/AboutIPRS.aspx accessed on 6 February, 2013.
29 http://www.iprs.org/cms/FAQs.aspx , accessed on 6 February, 2013.
30 http://www.pplindia.org/pplweb/aboutus.aspx , accessed on 6 February, 2013.
31 2010 (42) PTC 752 (Mad).
32 See section 13 (1) and 13 (4) of the Copyright Act, 1957.
33 2010 (44) PTC 107 (CB).
Page 10 of 10
34 Romesh Thappar v. State of Madras AIR 1950 SC 124 [LNIND 1950 SC 27].
35 Article : Protection of certain rights regarding freedom of speech etc. (1) All citizens shall have the right to (a) to
freedom of speech and expression.
36 IFFRO links national RROS (members as well as national and international associations of right owners (associate
members) IFFRO has three primary purposes: 1) to foster the creation of RROS world wide 2) to facilitate formal and
informal agreements between RROS, authors etc. 3) to increase public and institutional awareness of copyright and the
role of RROS. Most collecting organizations at an international level are affiliated with one of the four umbrella
organization: 1) IFFRO; 2) CISAC, the Confederation International des societies Auteurs et compositeurs, which has
ties with over 140 collecting organizations representing a vide range of copyrighted works 3) BIEM, the Bureau
International des societes Gerant les Droits d’Enregistrement et de Reproduction Mechanique – to administer recording
and mechanical reproduction rights. 4) IFPI, the International Federation of Phonogram and Videogram Producers. See
IFFRO, IFFRO General Papers , supra. note 1; See also Paul Goldstein, International Copyright Principles Law, and
Practice (Oxford University Press, 2001) p. 229.
37 See Alka Chawla, Photostating in Institutes of Higher Education – Curse for Copyright Owners or a Boon for the
Researchers? 54 JILI (2012) 520.
38 Price of books of high quality or books of foreign authors specially in the field of law, science medicine etc. remain
beyond the buying capacity of students.
39 India has the largest number of illiterates in the world, 48% of Indian population is illiterate.
40 For example, fiction, non-fiction, text books, articles, reports – government or private etc.
41 Whether users are students, researchers, teachers, library, corporate houses etc.
42 See Copyright (Librarians and Archivists) (Copying or Copyright Material) Regulations, 1989 of UK.
43 See Copyright Cess Bill, 1992, clause 3.
44 Ibid ., clause 4.
45 See, Chapter VIII on Neighbouring Rights, supra.
End of Document
CHAPTER X - Internet & Copyright Law
ALKA CHAWLA
Chapter X Internet & Copyright Law
1. Growth of the Internet

The Internet is widely viewed as the fastest growing communication phenomenon of all time. From 1990-97, the
estimated number of Internet users around the globe grew from 1 million to approximately 70 million. 1 The global
on-line population in the year 2002 exceeded 250 million users and reached the range of 300-500 million by the
end of 2006 2 and in 2012 the number of Internet users has increased to 2,405,518,376. 3 The fastest growth in the
next several years is expected to take place in Asia and Latin America. 4 It was estimated that 10.2% of population
in India in 2011 will be Internet users.
Traffic on the Internet continues to multiply as the percentage of users has increased from 8% in 2006 to 22% in
2011. 5 In various regions, Internet usage has reached critical mass proportions such that business can no longer
afford to remain off the network. Some commentators believe this growth will continue apace for years to come,
driven in particular by the technology advances and the falling costs of computing and telecommunications. 6
2. Concept of the Internet

Lawmakers, content owners, consumer electronics and consumer manufacturers must at the outset understand the
technology of the Internet, the functions it performs, the uses of such a technology, and the role of the principal
players on the Internet in order to understand the legal implications of the Internet on the copyright of authors.
Internet is often described as a "network of networks". 7 It is also called an "information superhighway". 8 It is a

major global data pipeline 9 through which large amounts of intellectual property are moved. 10 The Internet is made
up of interlinked public telecommunication networks to which computers are connected. Anyone can gain access by
use of an appropriate modem, 11 usually with an appropriate agreement with an access provider, a person who
provides a "gateway" link to the Internet. Material can be accessed, viewed, retrieved, printed and downloaded 12
from all over the world. There is no one person who is in overall control of the Internet. It is, therefore, sometimes
described as "information technology communications anarchy". 13 It is also defined as a set of computer networks,
possibly dissimilar, joined together by means of gateways that handle data, transfer messages from the sending
network by means of the protocols 14 used by receiving network. 15
The roots of Internet lie in a project called the ARPANET , which was sponsored by the United States, Department
of Defence, Advanced Research Projects Agency (ARPA) in 1968 for military use. 16 It was later extended to
academic use and its current popularity has been made possible by permitting commercial service providers to
connect their networks to the Internet.
Physically, the Internet is a collection of packet computer networks, glued together by a set of software protocols,
Transmission Control Protocol/Internet Protocol (TCP/IP). 17
3. Ubiquitous Nature of Copies on the Internet

Information is sent through the Internet using a technology known as "packet switching" in which data is broken up
into smaller units or "packets" and the packets are sent as discreet units, often through multiple different paths and
Page 2 of 34
often at different times. As the packets are released and forwarded through the network, each "router" computer
makes a temporary (ephemeral) copy of each packet and transmits it to the next router according to the best path
available at that instant, until it arrives at its destination. The packets, which frequently do not arrive in sequential
order, are then "reassembled" at the receiving end into proper order to reconstruct the data that was sent. 18 Thus,
only certain subsets (packets) of the data being transmitted are passing through the random access memory of a
node computer at any given time, although a complete copy of the transmitted data may be created and/or stored at
the ultimate destination computer, either in the destination computer’s RAM, or on its hard disk, or in portion of both.
To illustrate, seven interim "copies" in whole or in part, may be made when transmitting a work through the Internet,
while downloading a picture from the website. The modem at the receiving and transmitting computers will buffer
each type of data, as well the router, the receiving computer itself (in RAM), the web browser, the video
decompression chip, and the video display board. 19 These copies are in addition to the one that may be stored on
the recipient computer’s hard disk. 20
Unlike the physical postal service the "original" packet never arrives. Each computer when it handles a packet does
so by making and passing on "copies" and discarding the packets it received. Thus, copying is fundamental to all
communications between computers. 21
There is a conceptual mismatch between a physical document, and its digital environment. The physical document
is normally a piece of paper, which exists in one space-time location only. It can be copied, in which case there are
two documents, the "original" and a "copy". The equivalent digital document, however, is simply a set of binary
data, conveniently conceptualized as 1s and Os. It is more accurate to say that it is "stored", rather than "exists in
original and copies" and may well be stored in multiple locations. 22
4. Functional parameters of the Internet and their copyright implications

India has a very progressive Copyright Act. It has been amended in 2012 to be in consonance with the Internet
treaties namely, WCT and WPPT though India has still not ratified the two Internet treaties. 23 There is not much
litigation in India on the issues relating to Internet, therefore, decided cases and debates taking place especially in
United States and United Kingdom are dealt with in detail in this chapter. These discussions may give some
preview of the kind of issues which are expected to arise in India too since the dotcoms are not restricted to national
boundaries.
The activity of Internet has raised many issues under the copyright law as copying and transmission of information,
via the Internet, takes place without any degradation and every copy is perfect. Digitization has caused the cost of
copying and distribution to fall to virtually zero. Can the distinction between traditional "original" and "copy" be
applicable to such a communication technology where these distinctions are meaningless?
The most fundamental issues raised in the field of copyright and related rights is the determination of the scope and
protection of rights of copyright owners in the digital environment. Some of the specific issues that have arisen are:
How should the rights of the authors be defined and what exceptions and limitations be permitted to such rights?
How are the rights of authors to be enforced and administered in this digital environment? Can the existing
worldwide copyright rules adequately protect the interests of those who hold copyright or are changes to the
existing rules required?
The basic function performed by the Internet is to transport digital information from one computer to another. At the
functional level, the Internet is no more than communication technology. 24 Any type of information, which can be
translated to digital form, can be transported via the Internet. 25 Therefore, copyright materials sent over the Internet
or stored on web servers are treated in the same manner as copyright material in other media. It is important to
note that the fact that they are made available on the Internet does not constitute a waiver of copyright nor does it
carry any implied licence for anyone to download or reproduce the material without the permission of the copyright
owner.
It is, however, a good practice for all copyright owners to maintain documentary evidence of the date of creation of
the work, and display a notice regarding ownership of copyright on the material posted on the Internet. The
documentary evidence will facilitate proof of copyright should there be a need to enforce the copyright against a
third party.
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The various acts and uses of Internet having copyright implications are examined as follows :
(a) Electronic mail and bulletin board services
Sending an e-mail can be described as sending a message or a letter to someone through the electronic medium
i.e. the computer network. A message in digital form is typically transmitted from one user’s computer via a modem
to an organization which provides access to the Internet. The recipient retrieves the message by downloading a
copy of the file from his service provider. This act does not violate the copyright of anyone. But if a person sends
any copyright material to his friends through e-mail then this amounts to reproduction and communication of copies
of copyright material without the consent of the copyright owner. The act will result in violation of copyright of the
owner.
Bulletin board is a development of the e-mail communication. A user "posts" a message to a computer which
houses the bulletin board and which is controlled by the Systems Operator 26 (Sys. Op.). This computer
automatically forwards the message to users who have subscribed to the board. Alternatively, users may obtain the
message by gaining access to the computer housing the board and downloading the file into temporary memory or
on to a hard disk. 27 There are thousands of different bulletin boards or Usenet newsgroups available via the
Internet 28 to which users can post "articles" (i.e. public messages).
Bulletin board technology, with its ability to disperse vast quantities of information quickly has multiplied the
opportunities for abuse of the technology. Illegal distribution of copyright materials on computer bulletin boards has
become a serious problem. High quality digitized pictures, music, software are all capable of being uploaded and
downloaded from computer bulletin boards. The users who upload and download copyrighted materials without the
permission of the copyright owners no doubt violate copyright law, except when it is covered by exceptions and
limitations, 29 but whether bulletin board operators are also liable is discussed below under liability issues.
(b) Access to information
An organization opens up a database to access to a list of materials or, indeed, the materials themselves, which
can be transferred by File Transfer Protocol (FTP). FTP is a part of the TCP/IP protocol suite. FTP works on the
client/server principle. 30 This means that one communicating party runs client software, 31 which requests
information, and the other runs server software which meets that request. An example of this is viewing a web
page. 32 The user enters the Uniform Resource Locator (URL) 33 of the page into the address bar of his browser
software (e.g. Google Chrome, Mozilla Firefox or Internet Explorer). This is the client software. It generates a
request for the page, which is sent via the Internet to the computer on which the page is stored. Web server
software running on that computer responds to the request by sending the packets, which make up the page to the
browser software. The browser then reassembles them and displays the page. Currently some of the most
important navigation providers are search engines and directories for eg. Google. These catalogue resources
across the Internet, so that the user can either perform a keyword search for relevant sites, or consult a structured
directory for sites of gateway to the web. 34
The web creates a mesh of software links between documents. Clicking on a hypertext link in a web document can
take the user to another part of the same document, to another document on the same computer or to a document
on another computer on the other side of the world. This is made possible by the addressing system of the Internet
and the Hyper Text Transmission Protocol (HTTP), 35 Hyper Text Mark-up Language (HTML) 36 which creates a
unique URL for each document on the Web. The following are some of the ways in which information can be
accessed.
(c) Browsing on the internet
The concept of browsing on the Internet is similar to browsing in a bookstore with one very important difference. In
a bookstore, one "flicks" through a copy of the book as he "reads" the book. The flicking through and reading of a
book are not within a copyright holder’s exclusive rights. But, when browsing World Wide Web (www) sites on the
Internet for example, the browser will make a "copy" of (download) the material into the local computer’s memory.
This is a necessary function of the technology currently available with which to browse. The Amendment Act of
2012 has inserted clause (b) to section 52 whereby it has been clarified that the transient or incidental storage of
work or performance purely in the technical process of electronic transmission or communication to the public does
not amount to infringement of anyone’s copyright.
The United States Supreme Court In ACLU v. Reno 37 described the nature of browsing on the Internet as follows :
Page 4 of 34
The Web utilizes a "hypertext" formatting language called HTML, and programs that "browse" the Web. Web can display
HTML documents containing texts, images, sound, animation and moving video. Any HTML document can include links to
other types of information or resources, such hyperlinks allow information to be assessed and organized in very flexible
ways, and allow people to locate and efficiently view related information even if the information is stored on numerous
computers all around the world. 38
The term browsing can be simply defined to denote moving back and forth between diverse Internet "pages", a
process, which is made possible by the hypertext. 39 The moot question is: does such browsing on the Internet
technically infringe any rights of the copyright holder? 40
According to section 17 (6) of UK Copyright Designs and Patents Act, 1988 and decision in the MAI case from the
United States, Internet online browsing amounts to reproduction. 41 But, according to EC Directive browsing,
resulting in transient copy on RAM, having no economic significance, is exempted from the reproduction right. This
Directive presumably treats Internet browsing as "reading" and "using" any literary work which does not implicate
the copyright laws. A number of authors have also argued that browsing creates merely ephemeral copy, which
should not be considered a form of copyright infringement. 42
The US Court in Religious Technology Center Netcom On Communication Services 43 held that,
Absent a commercial or profit depriving use, digital browsing is probably a fair use. There could hardly be a market for
licensing the temporary copying of digital works onto computer screens to allow browsing, Unless such a use is
commercial, such as where someone reads a copyrighted work online and therefore decides not to purchase a copy from
the copyright owner, fair use is likely.
Additionally, unless a user has reason to know, such as from the title of a message that the message contains copyright
material the browser will be protected by the innocent infringer doctrine, which allows the court to award no damages in
appropriate circumstances. In any event users should hardly worry about finding of direct infringement : it seems highly
unlikely from a practical matter that a copyright owner could prove such infringement or would want to sue such an
individual.
The only problem of placing "browsing" under fair dealing doctrine would be that some countries may not apply
defensive doctrines such as fair dealing and implied license as broadly as the Netcom case. It would be better if
international rules like those under WIPO Copyright Treaty include "browsing" illustratively either under "some
special cases" in Article 10 (2) or "non commercial fair dealing" like "research and private study".
(d) Offline web browsing
At its basic level, Internet access requires three primary things :

(i) A server computer, which stores electronics data and provides it upon demand usually in the form of text
and graphics.
(ii) A client computer (owned by the person surfing the web) which requests the electronic data stored on the
server through web browser software (like Internet Explorer).
(iii) A communication link (usually phone lines) connecting the server computer to the client computer.
Offline web browsing essentially puts all three of these software and hardware requirements on single computer i.e.
client computer. The content from the server is downloaded and copied for storage on the client’s hard drive. 44
Educational institutions in United States are showing preference to browsing websites offline than to "live" Internet
access or online browsing for following reasons: 45
(1) Schools have limited resources . They cannot afford a modem or a phone line for every class.
(2) The educators maintain total control over the content viewed by students. Without a "live" Internet
connection students cannot accidentally or intentionally encounter objectionable material.
(3) By locating websites and copying them onto computers for students to use offline educators can reduce
amount of time students spend locating useful Internet information.
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(4) Even with a fast modem accessing a website can be frustratingly slow. Offline web browsing or local
caching is very useful for educators, teachers, researchers and students. They are able to use a vast array
of Internet content in classrooms, which have a web browser-capable computer but do not have a modem,
phone line or other Internet connection.
When this application was initially introduced a few years ago in United States a number of organizations
threatened to sue individuals copying the websites since "copying" was done without permission. These cases were
eventually dropped or settled out of court. The safest path is to request the permission of website
owners/administrators before making a copy on the hard drive. It is advisable for the website owners to put up a
caution notice against copying of their work. 46
Offline web browsing raises unique copyright questions. This seems to be a clear case of storage of data on the
computer, which is within the exclusive right of reproduction of the author. However, storage for private or personal
use including research, would be covered by the doctrine of fair dealing under Explanation to section 52 (a) inserted
by the amendments of 2012.
(e) Caching
Caching, sometimes known as "mirroring ", involves storage of an entire site or other complete set of material from
a source for a later use. It is a process used by Internet browsers of storing "browsed" material in the browser
computer’s RAM. 47 The purpose of caching is to speed up repeated access to data and to reduce network
congestion resulting from repeated downloads of data. Cached material is generally stored at a site that is
geographically closer to the user, or on a more powerful computer. Caching is an efficiency tool. 48 It is something
that a browser programme does independently of the user. Cached copies are incidents of using the browser
programme. 49
Caching is normally of two types: 50

(i) Local Caching. This is the same as offline web browsing. It occurs locally at the end user’s computer either
in RAM, or on the hard disk; or some combination of both.
(ii) Proxy Caching. This occurs at the server level, rather than at the end user’s computer level. The rationale
and function of caching is explained as:
The easiest way to improve web performance is not to use the network at all. That’s the idea behind
caching, or storing copies of frequently accessed data somewhere close by. For example, browsers
such as Mosaic and Netscape remember the last few websites the user had accessed. That way, if
one goes back to a page, the data can be read straight from memory instead of from a computer
across the country. 51
The need for caching on the Internet stems basically from current transmission bandwidth limitations which have
resulted from two causes : 1) Usage of the Internet has grown in the last few years at a very fast rate. 2) Many
individual users have computers with modems of low speed by today’s standards.
Caching carries with it certain disadvantages to the owner of the copyrighted material:
(a) In print media, version of information is in control of the copyright owner but in case of caching the control
of version moves from the hands of the website controller to the Online Service Providers (hereinafter
referred to as OSP) of the end user. For example, the OSP may keep providing the old version when the
website owner has already updated the information. This happens because most caching is invisible to the
user.
(b) There may be a circumstance when a website owner is notified that its site contains defamatory material or
material infringing the protected copyright. The website owner may remove it from its site but the online
service provider, unaware of the circumstances, may keep distributing it giving rise to potential ongoing
liability.
(c) Caching may result in the loss of control over access to information at a site. Suppose a website owner
wishes to limit the access of information at a site to a paid user through use of a password. Such user
could enter the password, download the information to a proxy server and allow other unauthorized users
to reproduce the work.
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Creators of content can protect their content from being copied or control access to copies through technological
devices, rather than laying out a legal spider web in which to catch unwitting insects. There are numerous devices
in this category, password locking being the most common. For example, in order to use the Encyclopedia
Britannica 52 or Wall Street Journal full-edition on-line, 53 users must register over the phone and pay a subscription
fee. In exchange the users receive a password that will enable them to log in to the site for a particular period.
(f) Linking
Links are references to Internet addresses i.e. statements of locations without original contents, which fall under the
category of facts. Linking is perhaps the most effective information sharing tool on the Internet. There are three
different types of links:
(i) Intra-page. Intra-page links different parts of the same document. For example, a long document may have
a link at the end, which takes the user back to the beginning.
(ii) Intra-systems. Intra-system links connect different documents on the same server. An intra-system link on
a university’s server might connect the home pages 54 of two different departments.
(iii) Inter-system. 55 An inter-system link connects documents of different servers. Millions of documents can be
linked together through the World Wide Web . 56
Before moving on to the copyright issues involved in creating links it is important to know the technical aspects of
links. First, document A can be linked to document B without the author of B’s knowledge or consent. However, A
cannot link to a specific word or picture in B unless that word has its own URL address. 57 Second, the link is a one
way street. Someone browsing through A can follow A’s link to B. That user can back track from B to A. However,
user who starts at B has no way to connect to A, and further more doesn’t even know a link exists from A to B.
Third, for a user to "view" the document a "copy" of that document must be loaded into the random access memory
(RAM) of the user’s computer, otherwise no image will appear on the user’s monitor. 58
The past couple of years have witnessed claims that it should not be permitted. The problem arises because of
misconception about what a link does. Using a link does not cause any copy of a web page to be created on the
user’s computer or the web author’s server. Linking is more or less similar to placing references to other people’s
work. 59 In fact, it has been argued that by placing their materials on the Internet copyright owners grant "implied
licenses" to other users to link to them. 60 Banning the use of links could have profound impact on access to the
Internet, since locating information would be extremely difficult.
Links came into limelight with regard to copyright in Shetland Times Ltd. v. Dr. Jonathan Wills and Zet News Ltd . 61
In this case both parties offered Internet based news service. In October, 1996, "Shetland News" reproduced
verbatim a number of headlines from the online edition of Shetland Times as hypertext links to the corresponding
news articles. This resulted in users bypassing the front page of the Shetland Times’ website (which contains all the
advertisement) and reading only the linked texts. When the case came before the Court of Sessions, the pursuers
argued that both their website and that of the defenders were cable programmes and that defenders infringed
copyright. Granting an interim interdict, the judge ordered that until the final judgment, all links to the "Shetland
Times" from the defenders’ website should be removed. There is nothing in the injunction suggesting that copyright
can be employed to prevent the use of hypertext links from one site to another and the legal question was not
whether links infringe copyright, but whether headlines are literary works and deserve copyright protection. 62
Links are facts, therefore they should not be copyrightable. 63 However, a compilation of facts can be copyrighted.
In a leading case involving compilation of facts, Feist Publications Inc . v. Rural Telephone Service Co. 64 the US
Supreme Court ruled that factual compilations must entail some originality as to the selection and arrangement of
facts they contain.
Applying the same analogy to links one can say that links are compilations of addresses i.e. URLS. Therefore, if it
includes original descriptions of the links, those descriptions are copyrightable. However, that protection would not
extend to the links themselves.
The judge Harry Hupp of a US District Court on March 27, 2000 in Ticket Master v . Tickets.com 65 held that:
hyper linking does not itself involve a violation of a copyright since no copying is involved. The customer is automatically
transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is
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analogous to using a library card index to get reference to particular items, albeit faster and more efficiently.
The discussion above shows that browsing is the functional equivalent of reading which does not implicate the
copyright laws and may be done by anyone in a library without the permission of the copyright owner. Since viewing
a document does not infringe the reproduction right, providing a link cannot constitute contributory infringement.
Link can be included under literary work as an example to compilation.
The Copyright Amendment Act 2012 has inserted a new clause (c) to section 52 dealing with acts not amounting to
infringement. The clause reads:
(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or
integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person
responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:
Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of
copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for
the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the
competent court refraining from facilitating access and in case no such order is received before the expiry of such period of
twenty-one days, he may continue to provide the facility of such access.
(g) Framing
Framing was introduced in 1996 as a proprietary feature of the Netscape Navigator browser. Framing technology
allows a website designer to embed independently scrollable windows within its own border, or "frame". As the
name implies, a "frame" is a bordered area of a web page that acts as an independent browser window that
"frames" the context of a secondary, "target" web page or web site. 66 The technology allows one website operator
to use intellectual property owned by another entity to sell banner advertising on its own site.
When a web page or site is framed within another website, its URL or domain name is not displayed. Instead, the
URL and web page border from the originally accessed site is maintained, while the content of the target site
appears within this border. Further, users are not able to bookmark the target site, as the bookmark will save the
URL of the framer. The companies whose content has been framed argue that framer commits a copyright violation
either for reproducing or creating a derivative work based upon the original work.
Framing allows the viewer screen to split into multiple independent scrollable sections. Unfortunately, and despite
numerous lawsuits involving frames 67 there are no fixed rules. All cases have ended in out of court settlements,
whose terms probably have been dictated by the balance of powers between the parties rather than facts, or
technology.
A well known Internet designer 68 has very aptly remarked:
The potential negative effect of a bad precedent arising formally by a judge ignorant of how the World Wide (sic.) works are
profound [I] nformation technology changes so fast that.the world would be better off, if there was a general rule requiring
complainants in areas of fast moving technology and murky law to exhaust all reasonable technological remedies before
resorting to legal system.
In Perfect 10 Inc. v . Amazon.com 69the court specifically addressed the copyright status of linking and held that Google
provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size
photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions
are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to
appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The
browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing
image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images While in-line
linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright
Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.
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5. Business on the Internet

Amore advanced stage of computing is a tendency to conduct business online. There is a large segment of
business models which are growing over the Internet wherein the users are participating actively and thereon the
companies are earning solely on the basis of the Internet services by facilitating users to share their contents which
are attractive (which includes pictures, motion pictures, films, songs, graphics, trailers, private communications
amongst the eminent personalities, scam disclosures etc) so as to make it common to all and enabling them to view
it easily by sitting at home. The more prominent examples of this advance stage is Youtube, Myspace, Facebook
etc.
While facilitating the said sharing process over the Internet, the companies are gaining business in the nature of
advertising, sponsorships, other like businesses which make them popular and run their show. The problem
however creeps in when the content which is a subject matter of sharing on the website operated by the companies
are someone else’s copyright or proprietary material and not owned by the person or the user supplying them. The
question then arises, as to whether the said company by providing the medium of sharing to the users and also
gaining commercially alongside the same can be said to have infringed the copyright of the right holder. The Delhi
High Court 70 in Super Cassette Industries v . Myspace Inc. and Anr. was faced with a similar kind of a situation
wherein the defendants were website operator and the plaintiff was the right holder and the court was called upon
to answer the said question by applying the copyright law accordingly to this another mode of doing business which
has been innovated by the defendants in the virtual world of Internet.
The court held that there is an express provision under the Act, section 51 (a)(ii), which prohibits a person from
permitting any place including web space for profit if the work infringes copyright of another. However, if the said
person is having no knowledge or reason to believe that the communication of the work is infringing in nature then
he has not committed any infringement of copyright.
6. The Right of Reproduction - Transient copies made during transmission

and use of works on the Internet
The most important copyright implicated by the transmission and use of works on the Internet is the exclusive right
of reproduction of the author i.e. " to reproduce the work in any material form ". 71 This right is at the core of Internet
activity because any transmission of a work or an object of related rights pre-supposes the uploading of that work or
object into the memory of a computer or other digital device. In addition, when the work is transmitted over
networks, multiple copies are made in the memory of computers in the networks at numerous points. It is therefore
necessary to examine how the right of reproduction of authors is infringed by making of such copies by different
computers in the network and others who access such works.
These problems could not be dealt under the existing text of the Berne Convention i.e. the (1971) Paris text as
Internet was not in existence at that time. The problems were further compounded by the lack of a uniform
approach in copyright protection in such areas. In 1982, therefore, a meeting of government experts was organized
by WIPO and UNESCO where a broad based understanding was reached that uploading into a memory should be
considered as an act of reproduction. This understanding was reconfirmed in 1996 in Agreed Statements to the
WCT and WPPT which states: 72
The reproduction right as set out in Article 9 of the Berne convention and the exceptions permitted there under, fully apply
in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected
work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of Berne convention.
"Copies" in the digital environment are something else than what they are in the case of printed word. For example,
a node computer may receive only a few packets of the total data, the other packets being passed through a
different route and therefore a different node computer’s RAM. Should the law consider these partial images a "
copy " of the work? How can interim partial images of data stored in RAM be deemed a "copy " of a work, in the
case where there is no point in time at which the entire work is available in a single RAM ? The appropriate
application of the reproduction right in the case of temporary copies in computer random access memory continues
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to be a subject of debate at national and international levels. For this problem it has in some countries been
considered necessary to redefine or clarify the notion of "reproduction " in the digital context. The 2012 amendment
has dealt with this problem under fair dealing provision by inserting clauses (b) and (c) to section 52 73 and thus
making of transitory copies by the Internet a non-infringing act.
(a) National efforts: Redefining the right of reproduction in a digital environment
(i) European Union. According to European Union Directive on Copyright and Related Rights in the Information
Society of 2001 74 the EU member states have to provide for:
the exclusive right to authorize or prohibit direct or indirect, temporary or permanent, reproduction by any means and in any
form, in whole or in part for the right owners concerned.
This clarification has been introduced exactly in order to secure a proper application of the reproduction right in the
digital environment. 75
The Directive further prescribes a limitation to the right of reproduction as,
temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological
process and whose sole purpose is to enable (a) a transmission in a network by third parties, by an intermediary or (b) a
lawful use, of a work or another subject matter to be made and which have no independent economic significance shall be
exempted from the reproduction right. 76
The aim of this rather complicated wording is to make sure that certain short lived copies which are more or less
inevitable in digital transmissions are exempted from the reproduction right and thus not subjected to the right
owner’s authorization.
(ii) United Kingdom. In United Kingdom, however, the Act of 1988 provides that in relation to all categories of work
the making of copies that are transient or incidental to some other use of the work will also amount to copying. 77
Thus, the transient reproduction of any work e.g. writing on sand, blackboard, monitor of the computer or in
computer’s random access memory will amount to copying. From the angle of proving infringement of right of
reproduction it may be difficult to prove that such transient copying has taken place. 78
(iii) United States. In United States the question whether images of data stored in RAM temporarily amount to
"copies" or not came before the courts in following cases:
In Apple Computer Inc. v. Formula International 79 the court held that copies stored in random access memory
(RAM) were temporary, and running a computer programme from RAM does not create an infringing copy.
In MAI Systems Corporation v. Peak Computer Inc. 80 however, the Court of Appeals for the Ninth Circuit held that
"loading the software into RAM created a copy". The defendant was a service company that repaired computers
that were manufactured by MAI. When the service technicians turned on the MAI computer, the operating software
was automatically loaded from the computer’s RAM. The court cited the Report of the National Commission on New
Technological uses of Copyrighted Works (hereinafter referred as CONTU) which stated that, "the placement of a
work into computer is the preparation of a copy" 81 The MAI court duly noted that neither the prior cases which it
cited for support, nor the CONTU report itself, distinguished between placement in RAM or read only memory
(ROM). 82
The MAI decision appears to be at odds with the legislative history of the 1976 Act. The House Report
accompanying the Act states:
The definition of fixation would exclude from the concept purely evanescent or transient reproductions such as those
projected briefly on a screen, shown electronically on a television or other cathode ray tubes, or captured momentarily in
the ‘memory’ of a computer. 83 The report went on to distinguish between a reproduction and a display: "for a work to be
"reproduced" its fixation in a tangible form must be "sufficiently permanent or stable to permit it to be perceived, reproduced
or otherwise communicated for a period of more than transitory duration". Thus the showing of images on a screen or tube
would not be a violation of reproduction right, although it might come within the scope of public display right.
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The court in MAI had noted that the "copy" of the operating system was stored in RAM for several minutes. In
addition, the court emphasized that while in RAM, output of the programs was viewed by the user, which confirmed
the conclusion that the RAM "copy" was capable of being perceived with the aid of a machine.
Thus, in view of the court’s observation in MAI which led to its conclusion, it may be considered an open issue
whether the MAI holding should apply to images – especially only partial images – of works stored in RAM for more
transitory periods, such as in a node computer’s RAM during a transmission through the Internet.
An earlier Ninth Circuit case Lewis Galoob Toys, Inc . v. Nitendo of America Inc . 84 implied that an image of data
stored in RAM may not qualify as "copy ". At issue in that case was whether a device that altered certain bytes of
data of a video game "on the fly" as such information passed through RAM created an infringing derivative work.
The court held that it did not because although a derivative work need not be fixed, it must have some "form" or
"permanence" which were lacking in the enhanced displays created by the device. The court stated, however, that
even if a derivative work did have to be fixed, the changes in the displayed images on the fly by the accused device
did not constitute a fixation because the transitory images it created were not "embodied" in any form.
Later in Stenograph L.L.C . v. Bossard Association , 85 the District Circuit Court held that an infringing copy of a
computer program was made when that program was loaded into RAM upon boot up and used for its principal
purposes.
Since the issue whether transitory images of data stored in RAM constitute "copies" was unsettled under US case
law, the US Government in mid 1990s formed an Information Infrastructure Task Force Working Group in
Intellectual Property Rights. The Working Group conducted numerous public hearings, circulated a draft for public
comment in 1994, and issued its final Report in 1995, "Intellectual Property and the National Information
Infrastructure" (NII White Paper) which implicitly suggests that at least interim partial copies of a work created in
RAM in interim node computers during transmission may not themselves constitute a "fixed" copy.
A transmission in, and of itself, is not a fixation, while a transmission may result in a fixation, a work is not fixed by
virtue of transmission alone. Therefore, "live" transmissions via the NII (National Information Infrastructure) will not
meet the fixation requirement and will be unprotected by the Copyright Act unless the work is being fixed at the
same time as it is being transmitted. 86
But the Report goes on to state : "Activities such as loading a work onto a computermay be infringement of the
copyright holder’s exclusive rights". The footnote to this referred to the MAI decision of US Court which dealt with
the issue of RAM copies. This decision makes a factual conclusion that a copy in RAM is a fixed copy for copyright
infringement.
Later, in 1995, the Seventh Circuit Court in Religious Technology Centre v. Netcom On-line Communication
Services 87 held that merely proving that the defendant had remotely accessed the plaintiff’s software through a
terminal emulation program was not sufficient to prove that a "copy" had been made. It also held that much of digital
browsing is probably a "fair use" or "innocent infringement". The court observed, that until reading a work online
becomes as easy and convenient as reading a paperback, copyright owners do not have much to fear from digital
browsing and there will not likely be much market effect.
The Digital Millennium Copyright Act, 1998, Title II has also now provided for carefully tailored exceptions for such
copies and liability of the ISPS in order to avoid infringement following the Netcom case.
(iv) India. In India the Amendment Act of 2012 has inserted section 52 (a) and (b) to exempt making of transient
copies from infringement. 88
(b) International efforts: Right of reproduction in the digital environment
During the nineteen eighties a number of new copyright issues were raised at the international copyright level, for
example, the protection of computer programmes and databases. There was a lack of enthusiasm, however among
member States of the Berne Union for revising the Berne Convention. Accordingly, WIPO adopted a strategy of
guided development according to which all important questions were discussed by groups of experts and national
legislators and governments were offered the results of these discussions in the form of recommendations, guiding
principle and model provision.
At the end of the nineteen eighties, it was realized that mere guidelines were no longer adequate for harmonious
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development, and there was a danger that national legislators will choose different solutions to new problems. As a
result, WIPO embarked on a journey of setting binding international norms through a new Copyright Treaty. 89 In
December 1996, the international community adopted a copyright treaty, namely WIPO Copyright Treaty, that was
intended to provide solutions to economic, social, cultural and technological developments in information and
communication technologies. 90
(c) WCT and WPPT: Some technology protection measures
The international community recognized the profound impact of the development and convergence of information
and communication technologies on the creation and use of literary works. They also recognized the need to
introduce new international rules to provide adequate solutions to the questions raised by technological
developments.
Article 11 of the WCT states that, "Contracting parties shall provide adequate legal protection and effect legal
remedies against the circumvention of effective technological measures that were used by the authors in
connection with the exercise of their rights under this Treaty or Berne Convention and that restrict acts, in respect of
their works, which are not authorized by the authors concerned or permitted by law". Article 18 of the WPPT
contains identical language.
Many countries thereafter started implementing the provisions of WCT and WPPT
(i) United States : In the US, section 103 of the DMCA 1998 added a new Chapter 12 to the Title 17 of the US
Code. The new section implements the obligation to provide adequate and effective protection against
circumvention of technological measures by copyright owners to protect their works. This section divides
technological measures into two categories. 91
(a) Measures that prevent unauthorized access to a copyright work; and
(b) Measures that prevent unauthorized copying (used as shorthand for the exercise of any of the exclusive
rights) of a copyright work.
Making or selling of devices or services that are used to circumvent either category of technological measures is
prohibited in certain circumstances. The DMCA also creates civil and criminal penalties for those who circumvent
certain kinds of anti-piracy protection.
(ii) United Kingdom . In the UK, section 296 of CDPA, 1988 provides for anti-circumvention provision. The Act
grants rights to persons issuing the copies of copyright work to the public but makes no reference to the remedies.
However, it seems likely that a court would conclude that the intention was that the issuer should be entitled to
normal remedies for copyright infringement.
(iii) India . In India, the Copyright Amendment Act 2012 has inserted a new anti-circumvention provision. The newly
inserted section 65A is as follows:
(1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights
conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to
two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall prevent any person from,—
(a) doing anything referred to therein for a purpose not expressly prohibited by this Act:
Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall
maintain a complete record of such other person including his name, address and all relevant particulars necessary to
identify him and the purpose for which he has been facilitated; or
(b) doing anything necessary to conduct encryption, research using a lawfully obtained encrypted copy; or
(c) conducting any lawful investigation; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the
authorisation of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or
(g) taking measures necessary in the interest of national security.
Some of the technical measures developed for protection of works are described as follows: 92
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(iv) Copy control flags. Digital bits which immediately precede or are embedded in the content that indicates
whether copyright is authorized. These flags can become elaborate in defining number of copies or length of time
for viewing, etc. For flags to be effective, equipment manufacturers must look for and respond to such flags.
(v) Serial copy management system (SCMS). A specific method of using copyright control flags that allow digital
copies to be made from a master, but not from a copy of that master. Thus, second generation copies or
reproduction and beyond are precluded. This is accomplished by having a set of control flags on the master that are
changed by the copying device during the copying process. If the copy is used for an attempted copy, the control
flags are incorrect and the copy device will reject it as a matter of copying. SCMS is used primarily on music CDS.
(vi) Macro vision. A signal within an analog video signal that disrupts the ability of consumer VCRS from recording.
(vii) Encryption. Digital scrambling of the bits that prevent the content from being seen clearly until it is de-
scrambled (i.e. decrypted). The keys necessary to decrypt are delivered only to the authorized users and/or
authorized equipment. This technology is widely used for satellite broadcasting of content, including conditional
access channels. Encryption protects the content until it is decrypted 93 (usually at a set-top box) at which point it
can be copied onto other digital media (e.g. computer disc) or analog media (e.g. VCR) that may be connected to
the top box directly or indirectly via another device, such as television.
(viii) Identification. Unique way of identifying devices and classes of devices to facilitate authentication and
revocation. Authentication is the act of verifying a device to determine whether such device complies with a
particular copy protection structure/technology and should receive protected content. If the device is verified, then
authentication permits the transfer of data (content) from the sending device to the verified receiving device along a
secure channel. Authorization is the access right given to a device once it has been successfully identified and
authenticated.
(ix) Watermarking. Bits embedded into the content that cannot be audibly or visually detected, but which can be
read by a detection device so that it knows whether the content being played is authentic and where the source of
the content has originated. Such information can provide data on the author, rights, distribution, etc. It can also
contain copy control information and instruction. A watermark can only be effective if compliant detections that read
and respond to the watermark are embodied in the playback and record devices, otherwise the watermark will go
undetected.
The security and management technology is constantly evolving and no one system has emerged as clearly the
most desirable.
(d) WCT, WPPT and Right management information
One of the key issues regarding management of rights in a digital environment is the automated monitoring and
registration of the use of works. In order to function with the ease and speed that are the hall marks of well
functioning digital networks, it is important that whenever a work or an object of related rights is requested and
transmitted over the network, the fact of the use is registered together with all the information necessary to ensure
that the agreed payment can be transferred to the appropriate right owner. 94 Various technologies in this respect
are available or being developed which will enable the necessary feedback to the right owners. It is crucial,
however, that such information is not removed or distorted, because the remuneration of the right owners would in
that case not be paid at all, or it would be diverted. From a practical point of view it will be as prejudicial to the
interests of the right owners as an outright infringement of rights. WCT Article 12 and WPPT Article 19 deal with
such problems. These are important steps in the recognition of the fact that management of rights in digital network
environment must be embedded in the technology itself, and its integrity must be protected by national legislation.
A properly designed Electronic Copyright Management System provides the users of that system with five essential
elements: 95
(1) confidentiality;
(2) verification (or authentication) of the parties;
(3) content integrity;
(4) proof that the copyright transaction occurred (non-repudiation); and
(5) positive recordation of the time and date of the transaction (date stamping). 96
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Many new products are on the market to help achieve these five key aspects of security. These products rely on a
variety of technical measures that in different ways impose a degree of control over the utilization of materials on
the Net. Many countries are working on development of such systems.
The sound recording industry, under the leadership of IFPI, has also been in the forefront internationally,
anticipating the advent of digital delivery on the Internet. The SCMS incorporates rights management information
into each recording and limits the circumstances in which copies can be made of digital recordings. Similarly,
International Standard Recording Code (ISRC) implants a unique code in each digital recording. That code allows
for the identification of the name of the original producer of the sound recording, the country of origin, the name of
the performer, the song titles, and the name of the album. 97
Article 12 of the WCT provides in the relevant part:
Contracting parties shall provide adequate and effective legal remedies against any person knowingly performing any of the
following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable,
facilitate or conceal an infringement of any right covered by this Treaty or the Berne convention:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works
knowing that electronic rights management information has been removed or altered without authority .
Article 19 of the WPPT contains nearly identical language.
United States . The United States in order to implement this provisions of WCT and WPPT inserted a new section in
the United States Code 98 It implements obligation to protect the integrity of copyright management information
(hereinafter referred to as CMI). The scope of the protection is set out in three separate paragraphs, the first dealing
with false CMI and the second with removal or alteration of CMI. A third para defines CMI identifying information
about the work, the author, the copyright owner, and in certain cases, the performer, writer or director of the work,
as well as the terms and conditions for use of the work, and such other information as the Register of Copyrights
may prescribe by regulation. Information concerning users of works is explicitly excluded. It then provides a general
exemption for law enforcement, intelligence and other governmental activities. The section also provides for
limitation on liability of broadcast station, cable system, or anyone who provides programming to such station or
system in case of both analog and digital transmission.
Right holders are interested in digital rights management (DRM) technologies because they have the potential to
restore scarcity to their markets and continue to preserve the incentive to creative new works. Users of copyright
works are concerned about the interaction between DRM and the traditional exception and limitations to copyright.
They are also concerned with the potential of DRM and to reduce the benefits of the new network environment and
possibilities for double payments to right holders from a parallel system. 99
India has not adopted WCT and WPPT 100 yet but has amended the Copyright Act in 2012 to be in consonance with
the two Internet treaties. It inserted a definition of Rights Management Information in section 2 clause (xa) which
reads as under:
(xa) "Rights Management Information" means,—

(a) the title or other information identifying the work or performance;
(b) the name of the author or performer;
(c) the name and address of the owner of rights;
(d) terms and conditions regarding the use of the rights; and
(e) any number or code that represents the information referred to in sub-clauses (a) to (d),
but does not include any device or procedure intended to identify the user;
It then added section 65B in the chapter dealing with offences that makes tampering with such systems a civil
wrong and a criminal offence. The newly inserted section 65B reads as under:
Any person, who knowingly,—

(i) removes or alters any rights management information without authority, or
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(ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or
performance knowing that electronic rights management information has been removed or altered without authority,
shall be punishable with imprisonment which may extend to two years and shall also be liable to fine:
Provided that if the rights management information has been tampered with in any work, the owner of copyright in such
work may also avail of civil remedies provided under Chapter XII against the persons indulging in such acts
OncomparingthissectionwiththeDigitalMillenniumCopyrightAct (asapplicableintheUSA)(the"DMCA"),it can be found

thatthe DMCA makes exceptions for such activities by law enforcement, intelligence or other authorized
government personnel, which is not the case in section 65B. The exemptionsas provided under section 65A (2),
should have also beenmadeapplicableinrelationto section 65B.
7. Liability of Internet Service Provider

Much of the Internet copyright debate in recent years has centered around the issue of copyright liability of OSPS,
BBS, Sys. Op., and other service providers for infringing activities taking place through their facilities. Indeed, to
date, almost all of the reported Internet copyright decisions have centered around the issue of liability of OSPS and
BBS operators. Copyright owners have sought to hold OSPS and BBS operators liable on theories of direct liability,
contributory liability and vicarious liability. 101 All Internet transactions work by the transmission of information from
one place to another so the primary actors involved are the sender of that information and the recipient of the
information. But, making a work available over the Internet, involves a chain of service providers (i.e.
intermediaries) who are instrumental in transmitting or disseminating (potentially copyrighted) third party context, 102
like ISPS, OSPS and BBSPS.
To understand the liability of the above entities, it is important to understand the role of the intermediaries and their
function in Internet services, 103 and other players like the content providers.
(a) Players on the internet
(i) Content Providers . Content providers are among the most important people on the Internet. They range from
multinational companies to individuals. Content comes in many forms. It divides generally into real-time and
downloadable content. Real-time content is that which can be viewed or heard as the user accesses it, either
delivered in batches or by maintaining a continuous stream of data. A page of text on the World Wide Web is, in a
sense, an example of real-time content. It appears on screen as the data, sent in batches, reaches the PC from the
Internet site. Graphics also appear in real time, but more slowly because of higher bandwidth requirements.
Downloadable content takes the form of a file which can be copied from the Internet site to the user’s own
computer. The user, once offline from the Internet, uses his own applications to read, view or play the file. The
Internet protocol FTP (file transfer protocol) is typically used to download files from the Internet. Content can range
from simple text files, graphics and video to computer programs, updates and patches. Content may be free or paid
for. 104
(ii) Hosts . A host is a digital storage place accessible via the Internet. A host may store its own material or material
held on behalf of other parties, for free or for reward as a commercial service. The material may be ephemeral or it
may be permanent. The host owner may be actively involved in the process of placing the material on the host, for
instance if it provides Web design and HTML coding services; or it may do nothing more than provide a storage
area, bandwidth and a URL, taking no part in the selection and design of the materials. The legal responsibilities of
the host will vary according to the exact nature of the role that it has assumed. 105
(iii) Internet service provider (ISP) or Online service provider (OSP) or Access providers . An ISP or OSP generally
provides Internet users (also known as subscribers) with dial-up access to the Internet. A user’s computer dials the
ISP through a modem. This enables a user’s computer to communicate with other computers on the Internet. A
user can then browse the World Wide Web, transfer files, and send and receive e-mail. ISPS often host a news
server, which enables the user to read and post to Usenet newsgroups. Posts to the newsgroups are stored on the
ISP’s system for a finite time. Users interested in viewing particular posts can read or download them from the ISP’s
server. ISPS sometimes host World Wide Web sites. The sites usually contain information for subscribers such as
account information, available services, technical support, and contact information. Access to these websites is
usually open to anybody with access to the web. These providers can be private/commercial (Mind Spring,
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Bellsouth.net, etc.) or public (universities). Access to their services and content almost always requires use of
proprietary graphical users interface (GUI) 106 software. OSP services include (but are not limited to) e-mail
accounts, access to content, and World Wide Web hosting for members. Content offerings are extensive and may
include online magazines, shopping services, securities, tracking and trading services, industry and general news,
weather services, educational resources, movie and entertainment reviews and services, software reviews and
downloading, forums, chat rooms, bulletin boards, and technical support and customer service.
(iv) Bulletin board service (BBS). An electronic bulletin board is similar to a bulletin board on the wall. People can
read what is posted on the board and can post their own material. BBSS are accessed via direct modem connection
or via the Internet. Many BBSS are accessed by modem and require the user to have a password, for which the
user pays a subscription fee. BBSS are often set up for a particular topic or interest group. In addition to text
messages, a user can post software and images to the BBS, which can then be downloaded by other users. BBSS
are commonly used as a "place" to exchange ideas, information, and works in progress. It is this nature of the BBS
which lends itself to abuse by people who would post copyrighted software, images, and text for others to download
without paying royalties and/or license fees to the true owners.
(b) Theories of liability for copyright infringement
There are three theories of liability for infringement of copyright : direct, contributory and vicarious. 107
(i) Direct infringement. The direct infringer is the direct actor who, with or without a specific intent to infringe, is the
primary party that violates one of the copyright owner’s exclusive statutory rights. In order to hold a person liable for
direct infringement he should be shown to have directly infringed the copyright of an author or owner.
(ii) Contributory infringement. It is the tort (civil wrong not based on contract) of contributing to the direct
infringement of another. For eg. Section 51 (a)(ii) reads :
when any person permits for profit any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable
ground for believing that such communication to the public would be an infringement of copyright.
For there to be a contributory infringement claim there must first be a direct infringement by another person.
(iii) Vicarious infringement. This occurs when a company receives direct financial benefit from the infringement by
another party and had the right and ability to supervise the infringement activity. Courts have held that for vicarious
liability neither the knowledge nor participation in the direct infringement is required.
(c) ISP Liability
(i) United States of America. US courts in settling the issue on ISP & BBSP liability have decided a number of
cases. 108 In Playboy Enterprises Inc. v . Frena 109 the court held the operator of a BBS, Frena, responsible for
infringement of the rights of distribution and display (although curiously not the right of reproduction) with respect to
the copyright photographs of plaintiff’s magazine Playboy, which were distributed and displayed through the
defendant bulletin board to the subscribers. There was no evidence that the operator himself uploaded any of the
photographs onto the bulletin board, in fact, he removed the photographs as soon as he was made aware of them.
The mere fact that Frena was making copies available was an infringement. Also, the fact that subscribers were
able to view the photographs on their computer screen constituted an infringement of the public display right. In this
case BBS Frena was devoted to photographs and subscribers routinely uploaded and downloaded images
therefrom. The court may have viewed Frena as a more direct participant in the infringement, having set up a
bulletin board that was devoted to the kind of activity that would foreseeably lead to infringement. Some of the
plaintiff’s photographs were edited to remove the plaintiff’s trademarks and to add Frena’s advertisements. This fact
was apparently evidence of sufficient involvement for the court to find direct infringement of the public distribution
right.
The DMCA 1998 in United States of America (discussed below contains a number of safe harbors that address the
issue of OSP liability) implicitly rejects the logic of the Frena case , atleast to the extent Frena suggested that
passive, automatic acts engaged in through technological process initiated by another through the facilities of an
OSP could constitute direct infringement on the part of the OSP.
Later the US Court in Religious Technology Centre v. On-line Netcom Communication Services 110 refused to
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impose direct liability on an OSP for copies made through its service, atleast where the OSP had no knowledge of
such infringements. In this case the plaintiff sought to hold the OSP (Netcom) and the operator of a BBS, which
gained its Internet access through the OSP for posting of the plaintiff’s copyrighted work on the bulletin board. The
works in question were posted by an individual named Erlich to the BBS’s computer for use through Usenet. The
BBS’s computer automatically briefly stored them. The OSP then automatically copied the posted works onto its
computer and onto other computers on the Usenet. In accordance with usual usenet procedures, usenet servers
maintained the posted works for a short period of time – eleven days on Netcom’s computer and three days on
BBS’s computer. The OSP neither created nor controlled the content of the information available to its subscribers,
nor did it take any action after being told by the plaintiffs that Erlich had posted infringing messages through its
system.
The court held that:
absent any volitional act on the part of the OSP or the BBS operator other than the initial setting up of the system, the
plaintiff’s theory of liability, carried to its natural extreme, would lead to unreasonable liability. Although copyright is a strict
liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is
merely used to create a copy by a third party.
Sega Enterprises Ltd . v. MAPHIA 111 adopted the logic of Netcom case and refused to hold a BBS and its system
operator directly liable for the uploading and downloading of unauthorized copies of Sega’s video games, even
though the defendants participated in encouraging the unauthorized copying, which was not true in Netcom . The
plaintiff had not shown that the defendant personally uploaded or downloaded files or caused that to occur. The
most it had shown was that the defendant operated his BBS, he knew infringing activity was occurring and solicited
others to upload games. However, the court went on to hold the defendant liable for contributory infringement.
Similarly in Sega Enterprise Ltd. v. Sabella 112 the court refused to hold a BBS operator liable for direct infringement
of the reproduction right where there was no evidence that the operator did any unauthorized copying herself. The
defendant Sabella, was the system operator of a BBS called "The Sewer Line", which contained a directory called
"Genesis", into which were uploaded and downloaded infringing copies of Sega’s video games by subscribers to
the BBS. The defendant also sold copies that enabled users to play Sega games directly from floppy disks without
the need for a Sega game cartridge, and allowed purchasers of her copiers to download files from her BBS without
charge for a certain time period.
Although the court agreed that the defendant’s activities were more participatory than those of the defendant in
Netcom, the court nevertheless found the Netcom Court’s logic persuasive.
Sega has not shown that Sabella herself uploaded or downloaded the files, or directly caused such uploading or
downloading to occur. The most Sega has shown is that Sabella should have known such activity was occurring, that she
sold copies that played games such as those on her BBS and that she gave her copier customers downloading privileges
on her BBS.
Citing, Netcom, the court concluded that whether Sabella knew her BBS users were infringing on Sega’s copyright
or encouraged them to do so, has no bearing on whether Sabella directly caused the copyright infringement to
occur. The Court did, however, hold that Sabella was liable for contributory infringement as:
Sabella did more than provide the site and facilities for the known infringing conduct. She provided a road map on the BBS
for easy identification of Sega games available for downloading.
The facts of Playboy Enterprises Inc . v. Webbworld 113 were similar to that of Frena . The defendant Webbworld,
incorporated a website called Neptics, which made adult images available to subscribers who paid $ 11.95 per
month. Over a period of several months, images became available through the Neptics website which were
originally created by or for the plaintiff, Playboy Enterprises, Inc. The court observed that Neptics was receiving
payment, selling the images it stored on its computers, and therefore was acting as more than merely an
information conduit.
In Playboy Enterprises Inc . v. Sanfilippo 114 the defendants were held liable for direct copyright infringement. The
defendants admitted copying sixteen files containing a great many of the images from a third party source onto his
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hard drive and CD-ROM. A third party uploaded eleven other files containing photos to his hard drive. It was found
by the court that the authorization to upload by the third party was given by the defendants. The interesting feature
of this case is that the court awarded statutory damages of $ 500 per photo, for a total damage award of $
3,373,500. The court allowed a statutory damage award for each image on the ground that "each image had an
independent economic value as each image represented a singular and copyrightable effort concerning a particular
model, photographer and location."
In another landmark judgement of Recording Industry Association of America (RIAA) v. Napster, the court found
Napster liable for contributory infringement.
(ii) Contributory Liability and Napster Controversy in USA. Controversy over the A & M Records v. Napster case
made minds all over the globe work and gauge the effect which software like Napster was going to have on the
entertainment industry. 115
Shawn Fanning, a nineteen year old freshman at Northeastern University majoring in computer science is the
brainchild of Napster. 116 Napster facilitated a free music file trading system, open to the public over Internet. The
developments in the Napster law suit are as follows : On December 6, 1999, seventeen record companies and A &
M Records filed suit against Napster, Inc. in the District Court for the Northern District of California alleging vicarious
copyright infringement. 117 On January 7, 2000 Stoller, Jerry Leiver, and Frank Music Corporation filed a similar
complaint on behalf of similarly – situated music publishers against Napster. On May 12, 2000 the District Court
denied Napster’s motion for summary judgment. 118 On July 26, 2000, the music publishers filed a motion for
preliminary injunction against Napster "from engaging in or assisting others in copying, downloading, uploading,
transmitting, or distributing copyrighted music without the express permission of the rights owner". 119 On the same
day, Judge Patel granted the motion by issuing a bench order for a preliminary injunction of Napster. The plaintiff’s
seeking a preliminary injunction claimed that the Napster users were engaged in the wholesale reproduction of
copyright works, all constituting direct infringement. But the court held Napster liable for contributory infringement.
There was evidence to show that Napster knew or had reason to know of its users’ infringements of their
copyrights. There was failure on the part of the Napster to police the system. A lot of financial benefit also had
accrued to Napster from the continuing presence of infringing files on the system. On July 28, 2000 Napster
appealed the order and filed a motion to stay the preliminary injunction in the US Courts of Appeals for Ninth Circuit.
On the same day, just hours before the injunction was to take effect, the court stayed the preliminary injunction, and
placed the appeal on an expedited schedule. Oral arguments were heard on October 2, 2000. In September 2001,
Napster reached a tentative settlement of a separate law suit involving the National Music Publishers’ Association
and struck a deal on distributing songs for a fee. Under the settlement, Napster had to pay $ 26 million in damages
for infringement of copyright. The deal is intended to compensate songwriter and music publishers, in respect of the
copyright vesting in song lyrics and melodies (but not in respect of sound recording copyright). This means that
Napster must still reach a settlement with the Recording Industry of America (RIAA). 120
The allegations of the record companies were as follows:

(1) Napster facilitated the online trade of pirated digital music through the offerings of its services and
software. Napster willfully engaged in contributory and vicarious infringement of their copyrighted works.
Napster is fully aware that virtually all of the reproductions and distributions it enables and encourages are
infringing and in violation of federal copyright laws.
(2) Napster users directly infringe the record companies’ copyrights when they download music files from
another person’s computer unto their own.
(3) Napster is liable for vicarious infringement of their copyrights because it has the ability to control the
infringing conduct. For example, Napster could prevent access to its servers or it could refuse to index or
link to infringing music files.
(4) Napster derives financial benefit as a result of its users infringing activity from advertising fees that are
allegedly based on its number of users. Thus, more users Napster attracts, the more sound recordings it
can index, and the more fees it will receive.
The arguments of Napster were as follows :

(1) The technology of Napster falls within the safe harbor provisions of DMCA i.e. section 512 (a) as it is an
Internet Service Provider. Napster asserts that the user, not Napster, initiates the transmission of MP3
files, the transmission is an automatic process in which Napster does not intervene, Napster as the service
provider does not select the receiver of the MP3 files. It also does not copy the files as they are transmitted
nor does it modify them.
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(2) Napster’s users’ copying is non-commercial and its use might infact enhance CD sales or develop a
demand for online digital music, therefore, Napster’s service constitutes a fair use.
(3) Napster relies on the doctrine of "staple article of commerce" framed by the Supreme Court of US in the
decision of Sony v. Universal City Studio, as Napster’s peer-to-peer file sharing system is an important
technology and capable of substantial non-infringing use. The principle laid down in Sony case is that you
should not outlaw new technology before all the implications and potential uses of the technology can be
ascertained.
(4) The cases where vicarious liability has been imposed are the ones where, the direct infringer and the
vicarious infringer were both commercial parties to a commercial endeavour. Moreover, Napster does not
have a specific right and ability to control or supervise direct infringers therefore, it cannot be held
vicariously liable.
The decision by the Ninth Circuit in the Napster case is the first case involving the application of contributory and
vicarious liability to a peer-to-peer file sharing system. In the course of ruling against Napster, the court interpreted
both contributory and vicarious infringement in an expansive way. With respect to contributory infringement, the
court ruled that, after receiving notice from a copyright owner that a work is being shared on its system without
authorization, Napster had a duty to take reasonable steps (including implementing technical changes to its system)
to prevent further distribution of the work. This ruling creates the potential that once a P2P developer receives a
"cease and desist" letter from a copyright owner, he or she must "do something" (including making changes to the
system architecture) to stop the infringement, or else face liability.
With respect to vicarious infringement, the Napster court radically diluted both the "control" and "financial benefit"
elements that a copyright owner must prove. First, the court found that the mere ability to terminate user accounts
or block user access to the system was enough to constitute "control." This may expose a wide variety of Internet-
based services to potential liability, as most services retain the right to terminate users. Second, the Napster court
found that "financial benefit exists where the availability of infringing material acts as a draw for customers." Once
again, this is not difficult to prove in an Internet economy characterized by business models premised on attracting
large numbers of users.
In addition, the Ninth Circuit’s view of vicarious infringement liability creates a strong incentive to monitor the
conduct of users. This stems from the fact that knowledge is not required for vicarious infringement liability; a
person can be a vicarious infringer even if they are completely unaware of infringing activity. As a result, if one
exercises control over direct infringers and derives a benefit from their activities, one remains ignorant of his
conduct at one’s own risk. In the words of the Napster court, "the right to police must be exercised to the fullest
extent. Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability." 121
On the issue of the fair use defence attempted to be invoked by the defendant, the Court determined that, even
though Napster was not charging for its service and users were downloading the music for their personal use, the
downloading was not a "fair use" under the United States Copyright Act (section 107). 122 It was found that
"repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute
commercial use." 123 The copies were found to have been made to save the cost of purchase. This practice is cited
particularly by the recording industries as a factor in the 15% drop in music sales experienced in the past two years.
124 In addition to finding Napster users liable for direct infringement, the court found that Napster itself had engaged
in contributory infringement, with actual and constructive knowledge of the infringing activities, and vicarious
copyright infringement, because it had a direct financial interest in drawing users to its service as customers. 125
Rapid development and deployment of new and improved peer-to-peer (P2P) file sharing systems have raised new
problems. Learning from the Napster litigation, these second generation P2P systems are completely decentralized.
Each computer connected to such P2P platforms is both a server and a client. It was estimated that up to 90 per
cent of the files shared on these P2P systems are infringing. 126 The US Ninth Circuit recently observed "even if
these software developers of P2P platforms closed their doors and deactivated all computers within their control,
users of their products could continue sharing files with little or no interruption". 127
Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) have
launched numerous lawsuits against institutions, particularly universities with their high Internet penetration and
huge bandwidths, for enabling their students to share music and movie files. 128 Recently, RIAA has even launched
lawsuits against individual file-sharers. The US Congress has also initiated various legislations like the US No
Electronic Theft Act, Dec. 1997, to institute criminal liability for those who intentionally distribute by electronic
means copyrighted works with a value beyond a prescribed statutory minimum, Peer to Peer Privacy Prevention
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Act, July 2002, The Protecting Intellectual Rights Against Theft and Expropriation Act (PIRATE), March 2004, etc. It
remains to be seen how successful all these initiatives will prove to be.
To solve the uncertainties in the existing case law, it is necessary to regulate the liability of ISPS. by means of
legislative provisions which would bring more certainty.
(iii) India. The above stated issues are discussed in Super Cassette Industries v . Myspace Inc . 129 In this case, the
plaintiff was the owner of copyright in a repertoire of songs. The defendant was operating a social networking
website www.MySpace.com which provided users with the facility to upload videos and pictures including material
not yet released and infringing material. Defendant authorised free uploading and distribution of content through
downloading and streaming. The plaintiff issued a legal notice to the defendant to remove infringing material from
its website.
The Delhi High Court relied on section 51 which states:
When copyright infringed - Copyright in a work shall be deemed to be infringed—

(a) When any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act
or in contravention of the conditions of a licence so granted or of any conditions imposed by a competent authority under
this Act—
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the public where such communication
constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for
believing that such communication to the public would be an infringement of copyright, or
(b) When any person—
(i) makes for sale on hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) Distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) By way of trade exhibits in public, or
(iv) Imports [***] into India, any infringing copies of the work:
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use
of the importer.
Explanation —For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of
a cinematograph film shall be deemed to be an "infringing copy".
The court determined the scope of "permitting any place for profit" used in section 51 (a)(ii) and held that "any
place" would include a common public place which may be a physical place or place on the Internet or webspace.
The words can be given a wider connotation so as to include the place on the Internet and not merely confining it to
a place of entertainment. Since the defendants in this case were earning profits or gains and were not doing acts
bona fide or mistakenly without notice, there was certainly a complete element of commerce attached to it and
therefore, they were held liable for infringement of copyright of plaintiff.
The court laid down the following propositions:
The provision of Section 51 (a) (i) and Section 51 (a) (ii) of the Act are disjunctive in nature in as much as the word "or"
between the two makes it clear that even on satisfaction of one provision, there would be an infringement of copyright.
The infringement by way of authorization would fall within Section 51 (a) (1) read with Section 14 of the Act as against the
act of permitting the place for profit which is separately provided under Section 51 (a) (ii) of the Act. The acts of the
defendant whereby they offer the space over internet, get the work uploaded through users, thereafter saving in their own
database with the limited licence to add, amend or delete the content and thereafter communicating the said work to the
public by providing some advertisements or sponsorships tantamounts to permitting the place for profit for infringement as
envisaged under section 51 (a)(ii) of the Act.
It is not well settled that when there are new technological inventions or change in circumstances which was not in
contemplation at the time when the statute was enacted, the said invention or technological advancement may be included
in the same enactment if they are falling within the same genus provided in the existing enactment. Therefore, the words
"any place" have to be construed widely so as to include the place at the webspace or internet in order to give effect to the
provision to be operative in cases of newer kind of the infringements being caused at the webspace.
The present case relates to infringement of copyright wherein the remedies are conferred under the special statute. The
said suit for infringement of copyright can be filed and initiated at the place wherein the plaintiff carries on business, or
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personally works for gain etc. This is by virtue of non obstante clause provided under Section 62 (2) of the Act which reads
as under:
"62. Jurisdiction of court over matters arising under this Chapter. (1) Every suit or other civil proceeding arising under this
Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act
shall be instituted in the district court having jurisdiction.
(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the
local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or
other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries
on business or personal works for gain."
8. International and National Legislative Measures

(a) WCT and WPPT, 1996
The issue of ISP liability was considered during the Diplomatic Conference on the two Internet treaties adopted by
WIPO in 1996 : the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. However, the
treaties have ultimately left the issue of determining liability to national legislations. The Agreed Statement to the
WCT says :
It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself
amount to communication within the meaning of this Treaty or the Berne Convention.
The statement clarifies that simply providing the wires used to communicate, for example, does not constitute an
act of communication. But the statement is limited in its applications, it does not cover a number of activities that
service providers may engage in and it does not deal with concepts of liability for contributing to the infringement of
another.
Since 1996, legislative measures for ISP liability have been introduced in many countries. These legislative
enactments, however, differ in their approach. There are two principal approaches: 130
(1) Copyright specific approach. i.e., the ISP liability is determined under the copyright law.
(2) Horizontal approach, i.e., a rule governing liability of service provider is provided for regardless of the
ground for illegality of the transmitted material. This approach covers not only copyright infringement but
also other laws like defamation, privacy etc.
(b) India
The Copyright Act does not deal specifically with the liability of the ISPS. However, some of the existing provisions
can be used to determine the liability of ISPS. For example, according to section 51 (a)(ii), copyright in a work shall
be deemed to be infringed when any person without a license granted by the owner of the copyright or Registrar of
Copyright under this Actpermits for profit any place to be used for the communication of the work to the public
where such communication constitutes an infringement of the copyright in the work, unless he was not aware and
had no reasonable ground for believing that such communication to the public would be an infringement of
copyright.
ISPs allow their servers and telecommunication facilities for storing and transmitting user’s material. The servers
are located within their premises and they also charge for their services. Even if they don’t charge, they make profit
through the advertisement, they exhibit along with the transmitted material which is infringing copyright of the
owner.
Provisions relating to ISP liability are specifically legislated in Section 79 of the (Indian) Information Technology Act,
2000. It was amended in 2009. The amended section 79 of the IT Act reads as under :
131Exemption from liability of intermediary in certain cases—

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(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections
(2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or
hosted by him.
(2) The provisions of sub-section (1) shall apply if -
(a) the function of the intermediary is limited to providing access to a communication system over which information made
available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not -
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other
guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the
commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information,
data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to
commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material or that resource
without vitiating the evidence in any manner.
Explanation: For the purposes of this section, the expression "third party information" means any information dealt with by
an intermediary in his capacity as an intermediary.
Information Technology Act, 2000 under section 81, provides that the IT Act has an overriding effect
notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
But nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright
Act, 1957 or the Patents Act, 1970.
The court held that a conjoint reading of section 79 and section 81 makes it amply clear that the proviso to section
81 prevents any provisions of IT Act to act as restriction on exercising of the rights by the copyright owner. In other
words, the rights of the owners under the Copyright Act, 1957 and/ or Patent Act, 1970 shall remain unfettered by
any of the provisions of IT Act. Accordingly section 79 cannot restrict the rights of the copyright owner by saving the
liability of the ISPS from the infringing acts caused under the provisions of section 51 of the Copyright Act. Section
79 is, thus, meant for all other Internet wrongs wherein intermediaries may be involved including content but not
certainly relating to the copyright infringement or patent infringement which has been specifically excluded by way
of proviso to section 81. 132
Section 2 (w) of the IT Act defines intermediary as :
"Intermediary" with respect to any particular electronic records, means any person who on behalf of another person
receives, stores or transmits that record or provides any service with respect to that record and includes telecom service
providers, network service providers, Internet service providers, web hosting service providers, search engines, online
payment sites, online-auction sites, online market places and cyber cafes. 133
(c) United State: Digital Millennium Copyright Act, 1998
DMCA 1998 was designed to update US copyright law, Title II of which deals with the "Online Copyright
Infringement Liability Limitation Act." This title has been incorporated as newly created section 512 in the US
Copyright Act. It aims to provide certainty for copyright owners and ISPS regarding copyright infringement online.
As the title elucidates these provisions are not intended to regulate whether an ISP has committed copyright
infringement or not. Rather the limitations on liability only apply if the ISPS behaviour has qualified for infringement
according to existing principles of copyright law. 134 The limitations are based upon four categories of conduct by a
service provider 135called safe harbors for ISPS :
(a) Transitory communication
(b) System caching
(c) Storage of information on systems or networks at direction of users; and
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(d) Information location tools.
New section 512 also includes special rules concerning the application of these limitations to non-profit
educational institutions.
(d) Limitation for transitory communications
The liability of service providers is limited in circumstances where the provider merely acts as a data conduit,
transmitting digital information from one point on a network to another at someone else’s request. 136 This limitation
covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and
transient copies that are made automatically in the operation of a network.
In order to qualify for this limitation, the service provider’s activities must meet the following conditions :
(i) The transmission must be initiated by a person other than the provider.
(ii) The transmission, routing, provision of connections, or copying must be carried out by an automatic
technical process without selection of material by the service provider.
(iii) The service provider must not determine the recipients of the material.
(iv) Any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients, and
must not be retained for longer than reasonably necessary.
(v) The material must be transmitted with no modification to its content.
(e) Limitation for system caching
The liability of service providers for the practice of retaining copies, for a limited time, of material that has been
made available online by a person other than the provider, and then transmitted to a subscriber at his or her
direction is also limited. 137 The service provider retains the material so that subsequent requests for the same
material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source
on the network.
The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic
technical process for the purpose of making the material available to subscribers who subsequently request it. It is
subject to the following conditions :
(i) The content of the retained material must not be modified.
(ii) The provider must comply with rules about "refreshing" material, replacing retained copies of material with
material from the original location, when specified in accordance with a generally accepted industry
standard data communication protocol.
(iii) The provider must not interfere with technology that returns "hit" information to the person who posted the
material, where such technology meets certain requirements.
(iv) The provider must limit users’ access to the material in accordance with conditions on access (e.g.,
password protection) imposed by the person who posted the material.
(v) Any material that was posted without the copyright owner’s authorization must be removed or blocked
promptly once the service provider has been notified that it has been removed, blocked, or ordered to be
removed or blocked, at the originating site.
(f) Residing on systems or networks at the direction of users: Limitation for information of users
The liability of service providers for infringing material on websites (or other information repositories) hosted on their
systems is also limited. 138 It applies to storage at the direction of a user. In order to be eligible for the limitation, the
following conditions must be met :
(i) The provider must not have the requisite level of knowledge of the infringing activity.
(ii) If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit
directly attributable to the infringing activity.
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(iii) Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or
block access to the material.
In addition, a service provider must have filed with the copyright office a designation of an agent to receive
notifications of claimed infringement. The office provides a suggested form for the purpose of designating an agent
139 and maintains a list of agents on the copyright office website. 140
Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have
actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is
apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block
access to it.
The statute also establishes procedures for proper notification, and rules as to its effect. 141 Under the notice and
takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified
elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements
means that the notification will not be considered in determining the requisite level of knowledge by the service
provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the
material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is
protected from any liability to any person for claims based on its having taken down the material. 142
In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built which
gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order
to qualify for the protection against liability for taking down material, the service provider must promptly notify the
subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification
complying with statutory requirements, including a statement under penalty of perjury that the material was
removed or disabled through mistake or mis-identification, then unless the copyright owner files an action seeking a
court order against the subscriber, the service provider must put the material back up within ten to fourteen
business days after receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person
who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through
mistake or misidentification, is liable for any resulting damages (including costs and attorney’s fees) incurred by the
alleged infringer, the copyright owner or its licensee, or the service provider. 143
(g) Limitation for information location tools
A special provision 144 relates to hyperlinks, online directories, search engines and the like and limits liability for the
acts of referring or linking users to a site that contains infringing materials by using such information location tools, if
the following conditions are met :
(i) The provider must not have the requisite level of knowledge that the material is infringing. The knowledge
standard is the same as under the limitation for information residing on systems or networks.
(ii) If the provider has the right and ability to control the infringing activity, the provider must not receive a
financial benefit directly attributable to the activity.
(iii) Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block
access to the material.
These are essentially the same conditions that apply under the previous limitation, with some differences in the
notification requirements. The provisions establishing safeguards against the possibility of erroneous or fraudulent
notifications, as discussed above, as well as those protecting the provider against claims based on having taken
down the material apply to this limitation. 145
(h) Special rules regarding liability of non-profit educational institutions
A separate provision 146 determines when the actions or knowledge of a faculty member or graduate student
employee who is performing a teaching or research function may affect the eligibility of a non-profit educational
institution for one of the four limitations on liability. As to the limitations for transitory communications or system
caching, the faculty member or student shall be considered a "person other than the provider," so as to avoid
disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty
member or student will not be attributed to the institution. The following conditions must be met :
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(i) The faculty member or graduate student’s infringing activities do not involve providing online access to
course materials that were required or recommended during the past three years;
(ii) The institution has not received more than two notifications over the past three years that the faculty
member or graduate student was infringing; and
(iii) The institution provides all of its users with informational materials describing and promoting compliance
with copyright law.
On evaluating DMCA it can be seen that it essentially codified the results of Netcom Case 147 overruling Frena 148
case in so far as that case suggests that an ISP acting as a mere conduit could constitute direct infringement.
(i) Post-DMCA 1998 in the USA
Several judicial decisions 149 in the US have now interpreted the anti-circumvention provision of section 1201.
In United City Studios, Inc. v. Corley , 150 a suit was brought by the Eight Major Motion Picture Studios against the
defendants, who operated a web-based publication. Defendants had posted, and encouraged others to copy and
distribute, a decryption algorithm known as Decss, which circumvented the content scramble systems (CSS) that
was used to protect the copyrighted motion pictures embodied on DVDS. The principal defense in this case was
that the anti-trafficking provision of section 1201 (a)(2) were unconstitutional because they violated the defendant’s
First Amendment right to free speech by means of the exchange of Decss source code.
The Court of Appeal rejected these arguments and affirmed the finding of liability against defendant. The court
concluded that the DMCA targets the circumvention of digital protection and does not concern itself with the uses of
content after circumvention has occurred. It further found that fair use doctrine did not guarantee that anyone would
have an access to copyrighted material.
In US v. Elcom Ltd ., 151 Dmitry, a Russian programer, was vindicated for violating the DMCA’s anti-trafficking
provisions. As an employee of the Russian company Elcom, he created software that decrypted the Adobe ebook
security software, which allowed the users to read ebooks in multiple formats and allowed them to copy ebooks.
Elcom challenged the DMCA on various constitutional groups including section 1201 (b) as restricting the content of
its speech and curtailed the third parties’ rights to emerge in fair use of copyrighted material. The court in May, 2002
echoed Corley’s decision and concluded that even if DMCA directly regulated Constitutionally protected expression,
it did not affect the public’s right to use either public domain or copyrighted works because it affects only the ability
to access and use particular copies of these works.
Lexmark Int’l, Inc. v. Static Control Components, Inc ., 152 has garnered a lot of attention because it involves factual
circumstances not anticipated when DMCA was enacted. The computer printer company Lexmark, had locked its
printers using a microcontroller so that only authorized toner cartridges could be used. The United States Court of
Appeals for the Sixth Circuit ruled that circumvention of Lexmark’s ink cartridge lock does not violate the Digital
Millennium Copyright Act Static Control, a competitor of Lexmark, reverse engineered Lexmark’s system so that it
could refill the probate cartridge for Lexmark’s system and they would still operate in the Lexmark laser printer.
Lexmark brought a suit against Static Control alleging that its actions violated the DMCA and constituted copyright
infringement. Some people have expressed concern that this situation shows how the DMCA might be used for
anti-competitive purposes generally unrelated to preventing copyright.
A notification procedure is provided by DMCA that strikes a fair balance between the interest of the copyright owner
to stop infringement immediately and the interest of the alleged infringer to defend himself.
9. Jurisdictional Issues and Applicable Law

On the Internet, one can make an unlimited number of copies, virtually instantaneously and without any degradation
in quality. These copies can be transmitted to locations around the world in a matter of minutes. The older
technologies of photocopying and taping allowed mechanical copying by individual consumers, but in limited
quantities, requiring considerable time, and of a lower quality than the original. Moreover, the copies were physically
located in the same place as the person making the copy. It is very important to adjust the legal system to respond
to the new technological environment in an effective and appropriate way. The Internet is multi-jurisdictional. Users
can access the Internet from almost any place on earth. Because of packet switching technology and the complex
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weave of digital networks and telecommunications infrastructure, information may travel through various countries
and jurisdictions, each with its own legal system, in order to reach its destination. 153
In light of the impact of this international medium in a world made up of separate countries, the jurisdictional issues
loom large. The following cross cutting issues arise:
(1) Jurisdiction to adjudicate a dispute at a particular location (i.e., the forum or situs );
(2) The law applicable to the dispute or choice of law or conflicts of law,
(3) The recognition and enforcement of judgments in courts in foreign jurisdictions.
In the international context, questions of jurisdiction, applicable law and recognition and enforcement of foreign
judgments have been resolved by reference to private international law. In principle, each country determines its
own rules of private international law.
In certain regions of the world some of these rules have been harmonized by certain treaties. 154 In the absence of
treaties, principles of international "comity" may be applied to questions of jurisdiction and enforcement of
judgments. 155
The Berne Convention 156 does not specify any rules regarding jurisdiction for disputes between different countries
of the Union. The International Court of Justice, however, has the jurisdiction to settle matters arising out of
disputes between member countries regarding the interpretation and application of the Convention only. The WCT
and WPPT are also silent on matters of jurisdiction.
The rules of jurisdiction over activities on the Internet are evolving out of principles that predated the personal
computer age. Repeatedly courts have analogized the Internet to telephone or print media in analysis of
jurisdictional issues. The digital technologies are diminishing the principle of territoriality. There should now be an
effort to develop new, non–geographical or less geographical paradigms.
(i) United States . In United States, the policy of ‘ personal jurisdiction ’ is followed. This doctrine allows defendants
to be sued only in courts located where it is fair to make them come and defend. 157 For this two separate criteria
are used:
(1) General jurisdiction i.e. the place where the defendant resides and
(2) Specific jurisdiction i.e. when an out-of-State defendant has sufficient contacts with the State so that under
the specific circumstances of the plaintiff’s case, it is fair to require the defendant to come into the State
and defend the law suit.
In Inset Systems v. Instruction Set, Inc., 158 the plaintiff sued the defendant in Connecticut (Plaintiff’s home). The
Connecticut court concluded that advertising via the Internet is solicitation of a sufficient repetitive nature to allow
specific jurisdiction. Under this line of reasoning any passive website would be subject to jurisdiction anywhere in
the world.
The Federal Court in Pennsylvania in Zippo Manufacturing Co. v. Zippo Dot Com Inc . 159 for the first time set out an
overall analytical framework for specific personal jurisdiction based on Internet activity. The court held that there
was a continuum or sliding scale for measuring three kinds of websites namely,
(i) passive
(ii) interactive
(iii) integral to the defendant business.
The passive website is analogous to an advertisement in "Time" magazine; it posts information generally available
to any viewers, who have no on-site means to respond to the site. Courts would not ordinarily be expected to
exercise personal jurisdiction based solely on passive Internet website, because to do so would not be consistent
with traditional personal jurisdiction law. 160 An integral site is used actively by a defendant to conduct transactions
with persons in the forum state, receiving on–line orders and pushing messages directly to specific customers. In
such cases traditional analysis could support personal jurisdiction. The middle category or ‘interactive’ site, falls
between passive and integral. It allows a forum–state viewer to communicate information back to the site. Under
Zippo, exercise of jurisdiction in the interactive context was determined by examining the level of interactivity and
the commercial nature of the site.
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In VEJF and LICRA v. Yahoo! Inc and Yahoo France 161 a French court took jurisdiction over Yahoo! Inc. Yahoo!
France, Yahoo! Inc.’s French subsidiary, was located in France and was targeting the French audience in the
French language. According to plaintiff there were more than 1,000 Nazi related items, pictures, coins, flags etc
available on the auction site. The Paris court ruled that Yahoo! Inc. was required to block access to such sites in
France, where sales of such material are illegal. It gave Yahoo Inc. two months to develop a plan for such selective
blocking. Although the action links were then removed from the Yahoo! France site. Yahoo! Inc declined to block
French access to its United States web portal.
The French decision if followed by other courts, could make material in a foreign language and not specifically
aimed at the populations of another country actionable under that country’s laws simply because it is available
there.
The popularity of the World Wide Web is providing courts the opportunity to examine their traditional reaches based
on a corporation’s computer based contacts. To date, the case law in this area is limited. With global revolution
looming on the horizon the development of the law concerning the permissible scope of personal jurisdiction based
on Internet use is in its infant stages. A review of the cases involving the World Wide Web and personal jurisdiction
reveals that the courts that have addressed this issue are reaching conflicting results. 162
In cases where courts have conferred jurisdiction, they seem to rely on facts other than the website in making the
determination. However, it also appears from the case law that the courts are in dispute as to what type of
additional activity, other than the web site, is necessary to avail a defendant of a forum’s laws. For application of
law, the courts normally use "conflict of laws" principles to make this determination. 163
(ii) India. If a web page can be viewed anywhere in the world, then one constantly must worry whether unexpected
problems may arise in unlikely places. However, the said conflict has been laid to rest in the Indian scenario
through the means of section 62 o (2) of the Copyright Act which vests a District Court within whose local limits the
author/creator of the copyrighted work resides or carries on business or personal works for gains with the
jurisdiction to hear a suit for copyright infringement. 164 The personal amenability of the defendants are not relevant
in case of suit for infringement wherein the jurisdiction is sought to be invoked by way of provisions of the special
enactment when it provides for non-obstante clause. The said non-obstante clause thus operates to its full extent
and it cannot be said that there is a separate question of personal amenability of the defendants to be in the forum
state.
It is a principle of private International Law that to sue a foreign defendant in this country, the foreigner either must
be resident and or carry on business within the jurisdiction of forum court. However the operation of this rule is not
absolute but is subject to the municipal law. It is now well settled that when the municipal law provides otherwise or
overrides the private international law, then the municipal law prevails over and above the principles of private
international law.
The countries must work together for a uniform Convention on jurisdictional issues on the Internet in order to arrive
at a harmonious settlement of disputes in a certain and predictable manner. The need is to have uniform dispute
resolution methods that are capable of cost effectively handling a significant caseload and delivering decisions that
are enforceable internationally. As an established method of private dispute resolution, arbitration and comparable
administrative procedures are well placed to meet these goals. The European Parliament has also indicated that
online alternative dispute resolution should be a priority.
WIPO has developed an online system for administering disputes involving intellectual property, to be administered
by the WIPO Arbitration and Mediation Centre. WIPO plans to work with content and service providers in order to
tailor the system to their specific customer needs.
While tracking the conventional dispute-resolution model, the WIPO system is Internet-based, meaning that users
may conduct the procedures through a Web site, such as the site of the WIPO Center 165 or that of a service or
content provider. Digital communication tools allow the parties to file requests by completing electronic forms and to
exchange information online through secure channels. The parties and neutrals thus are able to communicate
electronically, and also, once these will have been integrated, through audio and video facilities. The system
includes such functions as automatic notifications, online payment of fees, and databases to support the logging
and archiving of submissions. In parallel with this online system, procedural rules have been devised that will allow
the parties to take advantage of the system, thereby providing an efficient alternative to litigation in national courts.
166
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These new means of resolving disputes might eventually set the standard for dispute settlement between
participants in electronic media. They overcome a number of the practical problems that are necessarily involved in
traditional litigation, by providing a single forum with a clear and simple set of procedural rules. With a contractual
agreement stating that disputes should be resolved through the WIPO Center’s online dispute resolution system,
the parties themselves can exercise control, not only over the procedures, the language to be used and the choice
of counsel to represent them throughout the dispute.
Can the judgment of one country be enforced in another? This is a very critical issue because the judgment without
enforcement is meaningless. Some countries work under treaties, as do many nations of Europe, providing a
mutual framework for enforcing judgments. Many others enforce a foreign judgment based on a variety of criteria,
such as whether a foreign judgment violates a domestic policy. Some do not enforce a foreign judgment unless
there is a specific treaty with the foreign country articulating the terms of mutual enforcement obligations. If one was
forced to go overseas to enforce local judgments, life would become much more difficult and unpredictable. 167 The
best solution is that the countries should unanimously resort to WIPO’s online dispute resolution system; whose
judgments shall be enforceable and for this the States may enter into a treaty for the purposes of solving
jurisdictional issues and enforcement problems.
POINTS TO REMEMBER
Internet is a major global data pipeline through which large amounts of intellectual property are moved.
1. Sending an e-mail can be described as sending a message or a letter to someone through the electronic medium
i.e. the computer. But if a person sends any copyrighted material to his friends through e-mail then this amounts to
reproduction and communication of copies of copyright material without the consent of the copyright owner. The act
will result in violation of copyright of the owner.
2. The users who upload and download copyrighted materials without the permission of the copyright owners
violate copyright law, except when it is covered by exceptions and limitations. For example, a person can download
a copyright material for personal or private use without infringing anyone’s copyright. But, if he downloads and
forwards it to his friends then it results in violation of the copyright of the owner.
3. Internet online browsing is not specifically covered by the Copyright Act. A bare reading of section 52 (b),
however, shows that simple browsing will not result in violation of copyright of the author whose work is browsed.
4. Offline web browsing amounts to storage of data in the computer. This is within the exclusive right of the
copyright owner unless covered by fair dealing provision like section 52 (a).
5. Links are references to Internet addresses i.e. statements of locations without original contents, which fall under
the category of facts. Links are compilations of addresses i.e. URLS. Therefore, if it includes original descriptions of
the links or if there is some creativity apart from skill and labour then those descriptions are copyrightable. However,
that protection would not extend to the links themselves.
6. Transient or incidental storage of a work or performance for the purpose of providing electronic links, access or
integration, where such links, access or integration has not been expressly prohibited by the right holder does not
amount to infringement.
7. The Amendment Act of 2012 has inserted provisions prohibiting circumvention of technological measures for
protection of copyright material on the Internet. Doing of such an act amounts to a civil wrong and a criminal offence
by virtue of section 65A.
8. The Amendment Act of 2012 has inserted a provision section 2 (xa) which defines Rights Management
Information and section 65B provides for punishment if any person tampers with such information.
9. The provision of section 51 (a)(i) and section 51 (a)(ii) of the Act are disjunctive in nature in as much as the word
"or" between the two makes it clear that even on satisfaction of one provision, there would be an infringement of
copyright.
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10. The infringement by way of authorization would fall within section 51 (a)(1) read with section 14 of the Act as
against the act of permitting the place for profit which is separately provided under section 51 (a) (ii) of the Act.
11. The words "any place" under section 52 (a)(ii) include webspace. According to Delhi High Court technological
advancements may be included in the enactment if they are falling within the same genus provided by the Act.
12. The suit for infringement of copyright can be filed and initiated at the place wherein the plaintiff carries on
business, or personally works for gain etc. This is by virtue of the non-obstante clause provided under section 62 (2)
of the Act.
13. Provisions relating to ISP liability are specifically legislated in section 79 of the (Indian) Information Technology
Act, 2000. Section 79 is meant for all Internet wrongs wherein intermediaries may be involved including content but
not relating to the copyright infringement or patent infringement which has been specifically excluded by way of
proviso to section 81.
14. DMCA, 1998 provides for safe harbours for ISPS.
15. The question of jurisdiction, applicable law, recognition and enforcement of foreign judgments are resolved by
reference to private international law principles. In certain regions of the world some of these rules have been
harmonized by certain treaties. Berne Convention, WCT and WPPT are silent on the matters of jurisdiction.
16. Three controversial Bills are pending in United States of America : (1) Online Protection and Enforcement of
Digital Trade (OPEN) Act. This Act would allow copyright holders to file complaints about copyright infringement at
foreign websites with the US International Trade Commission, which would investigate the complaints and decide
whether US payment processors and online advertising networks should be required to cut off funding. (2) The Stop
Online Piracy Act (SOPA) and (3) The Protect IP Act (PIPA). The purpose of these bills is to make it harder for sites
— especially those located outside the United States — to sell or distribute pirated copyrighted material such as
movies and music as well asphysicalgoods such as counterfeit purses and watches.
1 See " e Global Report " at < http://www.emarketer.com.> : From 1990-1997, the estimated number of users grew from
1 million to approximately 70 million.
2 See "The Future of the Internet," Data monitor (2001) at < http://www.datamonitor.com/dmhtml/ dm/dmwtsnew.htm .>.
3 www.internetworldstats.com/stats.htm .
4 See "U.S. Internet Users Surpass 100 million mark," New York Times (No. 11 1999) at <
http://www.nytimes.com/library/tech/99/11/biztech/articles/10net.html .>.
5 www.datamonitor.com .
6 The performance (of a chip) can be doubled, for half the price every two years. If this trend were to continue for
another few years, there would effectively be zero cost computing and zero cost telecommunications. The world will
thus evolve into an "infosphere" bathed in information. See Bishop R. "The Technology : where it is taking us" speech
at WIPO’s International Conference on Electronic Commerce and Intellectual Property (September 1999)
<http://econommerce.wipo.int/> accessed on 23 October, 2001.
7 J.H. Smith Grahm, Internet Law and Regulation (Sweet and Maxwell 3rd ed., 2002) 1. Also see, Rodney D. Ryder ,
Intellectual Property and the Internet (Lexis Nexis Butterworths, 2002) 67; Jeffrey M Samuels, Patent, Trade Mark and
Copyright Laws (BNA Book 2001).
8 <www.lawschool.westlaw.com> accessed on 16 July, 2002.
9 See Webster's Computer Dictionary , CBS Publishers, 2001: Data is the information as processed by a computer.
10 <http://www.findlaw.com> accessed on 19 May, 2002.
11 See supra note 9: It is a device for converting electrical signals from a computer into a form which permits their
transmission along telephone lines and vice versa . It is used for communication between computers via telephone
lines .
12 Supra note 9 : Download is the transfer of data to another computer, a peripheral device or a remote location.
13 Krishna Kumar , Cyber Laws Intellectual Property and E-Commerce Security (Dominant Publishers and Distributors 1st
ed., 2001) p. 69.
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14 Ibid ., The rules governing the transfer of data within a computer, between a computer and peripherals or between
computers.
15 See Microsoft Press Computer Dictionary (1994) p. 220.
16 <www.isoc.org/internet-history/brief/html. > accessed on 10 October, 2002.
17 See supra note 9: These protocols allow the networks and the computers attached to them to communicate and to find
other computers attached to the Internet. Thousands of networks around the world have adopted Internet protocols and
linked into the Internet so that today it is virtually impossible to identify the physical boundaries of the Internet .
18 If any packet is lost along the way, the originating computer automatically resends it, likely along a different path than
the lost packet was originally sent. See <http://findlaw.com> accessed on19 May, 2012.
19 Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 224 Dayton Law Review (1997) pp.547, 555.
20 Even if a complete copy of the picture is not intentionally stored on the recipient computer’s hard disk, most computers
enhance performance of their memory by swapping certain data loaded in RAM into the hard disk to free up the RAM
for other data, and retrieving the swapped data from the hard disk when the computer is turned off, even though the
copy in RAM has been destroyed, supra note 9.
21 Krishna Kumar, supra note 13, at p. 13.
22 Ibid.
23 For details on evolution of Indian copyright law see Chapter II supra.
24 Christopher Reed, Internet Law :Text and Material (Butterworths 2000) p. 8.
25 . The most common types of information transmitted through the Internet are text, graphics, numerical data, images,
sounds and video.
26 Mckenzie, Baker and Robert J. Hart , Guide to Intellectual Property in IT Industry (Sweet and Maxwell, 1st ed., 1998)
p. 286.
27 Supra note 9: A disk that is mounted with its own drive, usually installed in the computer case.
28 For example, for discussion on Star Trek see the Usenet newsgroup <alt.Startrek.creative>. For discussion on law and
superhighway see the discussion group <[email protected] >.
29 See Copyright Amendment Act, 2012, section 52 (a) fair dealing with any work, not being a computer programme, for
the purposes of-—
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
Explanation .—The storing of any work in any electronic medium for the purposes mentioned in this clause, including the
incidental storage of any computer programme which is not itself an infringing copy for the said purposes, shall not
constitute infringement of copyright.";
30 Paras Diwan, R.K. Suri, S. Kaushik, Information Technology Encyclopedia (Pentagon Press, 1st ed., 2000) p. 542.
31 See "Glossary of terms" available at < www.wipo.int. >: Software is the instruction given to a computer to enable it to
perform a specific task.
32 Ibid., It is the smallest item of information which can be uniquely tidied and accessed in the World Wide Web.
33 Uniform Resource Locator is the standard addressing system for the Internet. It is the agreed structure of a pointer to
www page, which is unique to the page. It is made up of the domain name, directory structure, file name eg <
www.ccls.edu/itlaw/index.html >. See, list of abbreviations and glossary of terms at < www.wipo.int. >.
35 Supra note 9: It is the protocol used for the transmission between one computer and another of documents which
incorporates hypertext links.
36 Ibid., It is a mark-up language designed for use with hypertext documents.
37 929 F. supp. 824 (3rd Cir. June 11, 1996). Available at < http://www.aclu.org/court/edadec.html .>
38 Ibid ., at para 33.
39 R. Carelli, Low-tech Supreme Court to Explore Cyberspace to Rule on Limiting Net , The Detroit News (16 March,
1997) p. 2A.
Page 30 of 34
40 Sunny Handa, Copyright Liability when browsing on the Information Highway , Laws And Technology Journal (1995) p.
29.
41 Also see Century 21 Canada Limited Partnership v. Rogers Communications Inc , 2011 BCSC 1196. Newspaper
Licensing Agency Ltd. v. Meltwater Holding BV [2010] EWHC 3099 (Ch).
42 Andrew Grosso, Copyright and Internet: A Footnote, a Sleight of a Hand, and a Call to Reason. , Federal Law 4
(January 1997); also see P. Samuelson, The Copyright Grab , Wired 4 (1995). Available at
<http://www.catalow.com/logic/does/ii-browse.html >.See section 52 (a) and (b) inserted in Copyright Act 1957 in 2012.
43 907 F. Supp. 1361 (N.D. Cal. 1995).
44 Wisley A. Fryer, Offline Web Browsing : No more excuses (1998) <http://www.wtvi.com/teks > accessed in 17
September 2012.
45 Ibid.
46 Ibid.
47 J. Burger, The Desktop Multimedia Bible (New York: Addison Wisley 1993) p. 79: Random Access Memory is the
electronic stretch pad and ‘thinking space’ where the programs and data reside while one is working with them. It is a
blackbox of memory inside a computer. It is not possible to access RAM other than through the instantaneous use of
particular programme on computer.
48 Januska Jennifer, The Great Canadian Cache Grab: Rethinking Browsing as Copyright Infringement , <
http://www.cata law.com/logic/docs/35-browse html. > accessed on 20 March 2002.
49 J. Burger, supra note 47.
50 <http://www.findlaw.com> accessed on 19 May, 2012.
51 Steve Steinberg, Speeding up the Web , WIRED magazine 3 (1995). Available at < http://www.
hotwired.com/wired/3.12/departments/geek.page.html >.
52 Available at < http://www.eb.com/. >
53 Available at < http://www.wsj.com/ .>
54 WWW home page is the anchor page or first page of a set of www pages from which other pages are accessible. For
individuals and organizations with www page it represents the "front door" or the "gateway" into that collection of pages
or website: supra note 10.
55 Brent Heslop and Larry Budnick, HTML Publishing on the Internet for Windows 1995 , p. 4.
56 Matt Jackson, Linking Copyright to Home Pages , <http:/www.law.Indiana.edu/fclj/pubs/v49/no3/ Jackson.html>
accessed on 18 September, 2011.
57 Brent Heslop et.al . s upra note 55.
58 Ibid., at p 7; Also see supra note 9: Monitor is a display screen that permits viewing the viewer’s interaction with a
computer.
59 Eve P. Althanasekou, Internet and Copyright : An Introduction to Caching, Linking and Framing , <
http://elj.warwick.ac.uk/jilt/wip/98_zather/content.f.htm >.
60 Charles Oppenheim, The Internet Copyright Case and its Implications for Users of the WWW , (Dec, 1996)
<http://www.shetland-news.co.uk/editorial/profopp1.html> .
61 1997 SLT 669 . For extensive comments see Ian Lloyd, Information Technology Law (Butterworths 1997) pp.359 – 364.
62 The terms of settlement are at < http://www.shetland-times.co.uk/st/daily/dispute.html >
63 See R.G. Anand v . Deluxe Films, AIR 1978 SC 1613 [LNIND 1978 SC 201]. Where the court held that actual events
and facts are not copyrightable.
64 (1991) Feist, 499 US 340. In Eastern Book Company v. D.B. Modak, the Supreme Court of India held that minimum of
creativity be present in order that a compilation of judgments can be called copyrightable and hence protectable.
65 The case is quoted in Margaret Kubiszyn Smith, Emerging Legal Guidance on Deep Linking , <
http://www.gigalaw.com/articles/2000-all/kubiszyn-2000-05b.all.html > accessed on 20 September 2002.
66 Margaret Kubiszyn Smith, Website Framing: Trademark and Copyright Issues , <
http://www.gigalaw.com/articles/2000-all/kubiszyn-2000-04-all.html. > accessed on 20 September, 2002.
67 See Washington Post Co. v. Total News , 97C v. 1990 (PKL) (S.D.N.Y.) The lawsuit is at <
http://www.ljx.com/internet/complain.html>.
68 Seth Finkelstein, The Total News Lawsuit , ILPN, April, 1997 < http://www.collegehill.com/ipr.news/ finkelstein/.html> .
Page 31 of 34
69 487 F.3d 701 (9th Cir. 2007).

70 2011 (47) PTC 49 (Del).
71 See Chapter IV, supra , for details on exclusive right of reproduction.
72 Rodney Ryder, supra note 7 and also see Agreed Statement of the Diplomatic Confrence that adopted the WCT
concerning Article 1 (4) of the WCT .
73 See, Appendix.
74 Directive 2001/29/EC, Article 2. See section 52 clauses (b) and (c) in the Copyright Act, as amended in 2012.
75 Henry Olsson, Intellectual Property and Global Issues : Implications of IP on electronic commerce , WIPO-ASIA –
Pacific Regional Forum on Policy Imperatives and Role of Institutions in Implementing a Public Outreach Strategy for IP
organized by WIPO, FICCI and Government of India (September 4-6,2002).
76 Directive 2001/29/EC, Article 5.1.
77 CDPA, 1988, section 17 (6); See also Gerald Dworkin and Richard Taylor, Blackstone’s Guide to the Copyright
Designs and Patents Act 1988 (Blackstone Press Limited 1989) p. 229;W.R. Cornish, Intellectual Property: Patents,
Copyright, Trade Marks and Allied Rights (Universal Book Traders 2nd Indian Reprint 1993).
78 Copinger et.al., Copinger on Copyright (London: Sweet and Maxwell 1991) para 3 to 26.
79 (1984) 594 F. Supp. 617.
80 MAI , 991 F-2d. 511 (9th Cir. 1993), cert dismissed, 114 S. ct. 671 (1994).
81 CONTU, Final Report of the National Commission on New Technological uses of Copyrighted Works (1979) p. 13 .
82 MAI, 991 F-2d at 519.
83 H.R. Rep. No. 94-1476, at 53 (1976), reprinted in 1976 U.S. C.C.A.N., 5659 quoted inmatt Jackson, Linking Copyright
to Home Pages , < http://www.law.indiana.edu/fclj/pubs/v49/no3/ Jackson.html >. accessed on 18 September, 2002.
84 964 F-2d 965 (9th Cir. 1992).
85 144 F 3d. 96 (D.C. Cir. 1996); The case follows MAI approach.
86 Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure . The Report of
the Working Group on Intellectual Property Right (1995) p. 27.
87 907 F. Supp 1361 (N.D. Cal. 1995).
88 See fair dealing provisions under Chapter VII supra .
89 Ficsor Mihaly, Legislating on the New Technologies: International Norm Setting in the Field of Copyright and
Neighbouring Rights , paper presented in CISAC’S 39th Congress, Washington 6 (September 18 – 20, 1994).
90 WIPO, Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions (Dec. 20, 1996). For details
see Chapter II supra. According to Vaiyanatha, "For the first time ever, international norms were drawn up to modify the
copyright regime, before any national law was revised. The WIPO Diplomatic Conference thereby, signifies a
paradigmatic shift in international harmonization of Intellectual Property Rights."
91 DMCA 1998, the US Copyright Office Summary, December 1998, p. 3.
92 See Dean S. Marks and Bruce H. Turnbull, Technical Protection Measures: The Intersection of Technology: Law and
Commercial Licenses , WPPT/IMP/3, 8, 7-8 December, 1999.
93 In India, section 67, Information Technology Act 2000 provides exceptional circumstances like sovereignty or integrity
of India, etc., when the controller can give directions to a subscriber to extend facilities to decypt information. But, there
is no provision specially providing for technical protection measures like Article 11 of WCT and Article 18 of WPPT.
94 International Bureau, WIPO, Copyright and Related Rights in the Information Society : An Overview of Legal and
Practical Issues, WIPO/CR/SEL/00/1, Seoul (October 25-27,2000).
95 WIPO, International Forum .
96 See generally, C. Merrill, A Crypotography Primer , Ch. 2, < http://cla.org/RhuBook/chp2.htm >.
97 Ralph Oman, Technological Means of Protection and Rights Management Information , at p 57.
98 See U.S. Code, 1976, Article 17, section 1202.
99 Caroline Morgan, Effective Management of Copyright in Digital Networks DRM, Private Copying and Levies , WIPO,
Asia-Pacific Regional Symposium on Emerging Issues of Copyright Protection in the Digital Environment,
WIPO/CR/DEL/04/7, October, 2004.
Page 32 of 34
100 . Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy , London,
September 2002, p. 109. The report has observed that it is premature at the present time for developing countries to go
beyond TRIPS. They have gone to the extent of saying that 'it would be unwise for developing countries to endorse the
WCT and they in fact should retain their freedom to legislate on technological measures'. The committee took the view
that legislation such as DMCA shifts the balance too far in favour of producers of copyright material at the expense of
the historic rights of users.
101 See S.K. Verma, The Protection of Copyright and Related Rights in the Digital Environment , A.K.Koul, V.K. Ahuja,
Law of Copyright: From Gutenbergs Invention to Internet (Faculty of Law, University of Delhi 2001) p. 168; Melville B.
Nimmer and David Nimmer, Nimmer on Copyright . (Lexis Nexis USA 2001) 12 B1, p. 78.
102 S.K. Verma, Liability of Internet Service Providers , National Seminar on Challenges of Internet/Cyber Laws and
Enforcement of Copyright Law , Indian Law Institute (March 3-4, 2001).
103 < http://www/unc.edu/cources/law357c/cyberprojects/spring97/spliab/spdestxt.htm > accessed on 14 September,
2002.
104 Graham J.H. Smith, Internet Law and Regulation (Sweet & Maxwell 3rd ed., 2002) p. 5.
105 Ibid .
106 Supra note 9: It is a computer monitor screen display that simplifies the use of programs and functions by representing
them with icons that can be selected with a mouse or other pointing device.
107 Lichtenstein Ferera, Reder August Sehiano, Cyber Law Text and Cases (2001) p. 74.
108 Heavy reliance is placed on cases discussed in < http://www.findlaw.com/ > accessed on 19 May, 2002.
109 839 F. Supp. 1552 (M.D. Fla. 1993)
110 907 f. Supp. 1361, 1367 & n. 10 (N.D.Cal 1995)
111 948 f. Supp. 923 (N.D. Cal. 1996)
112 1997 Copyright law. Dec. 27, 648 (N.D. Cal. Dec. 18, 1996)
113 968 F. Supp. 1171 (N.D. Text, 1997.
114 (1998) U.S. Dist. LEXIS 5125.
115 < http://www.Iseis.ucla.edu/ie/p/napster.htm >; "The Indian Entertainment Industry acquired full industry status in 2001.
Valued currently at Rs. 15,400/- crores, the industry is expected to grow to approximately 60,000-70,000 crores in the
next 5-7 years",see R.S. Lodha, Message, FICCI et.al. The Entertainment Law Book, Frames 2000 (2002).
116 Natasha Horne, Brook Voelzke and Lisa Kabula, Theft or Innocent Trade on the Information Super Highway , <
http://westlaw.com > accessed on 26 September, 2002.
117 See Wendy M. Pollack, Tuning in : The Future of Copyright Protection for On-line Music , 90 Fordham Law Review
(2000) p. 2445 also available at < http://www.westlaw.com >.
118 Andrew Morse, Judging Napster, The Standard (October 27, 2000) < http://www.thestandard.com/
articles/display/0,1151,19760.00.html> accessed on 12 October, 2002.
119 Ibid .
120 RIAA also calls itself the "Coalition to save America’s Music". It is constituted of various music trade unions, music
licensing companies, record labels and music publishers among its members: see generally Robert Long, Opinion and
Comment on the Changing Audio Scene , 29 High Fidelity (October 1982) p. 5.
121 For the above discussion on the NAPSTER case see < http://www.eff.org/IP/P2P/Napster/ 20010227_P2P_
Copyright_White_Paper.html >.
122 A & M Records, Inc. v. Napster, Inc ., 239 F. 3d 1004 (9th Cir., 2001).
123 239 F. 3d at 1015.
124 International Federation of the Phonographic Industry (IFPI), May 2002; See also Forrester Research (2002), USA.
125 For a full text of the Napster judgement see < http://caselaw.lp.findlaw.com/data2/ circs/9th/0115998p .pdf >.
126 MGA v. Grokster 259 F. Supp. 2d 1029 (2003) affd 380 F. 3d 1154 (9th Cir., 2004).
127 Ibid.
128 See cnet.com Congress targets P2P Piracy on Campus , 26 February 2003 at news.cnet.com/ Congress-targets-P2P-
piracy-on-campus/2100-1028_3-986143.html accessed on 14 February, 2013.
129 2010 (48) PTC 49 (Delhi).
Page 33 of 34
130 . See, DMCA, 1998, Australian Copyright Amendment (Digital Agenda) Bill 1999; and the Singapore Electronic
Transaction Act, 1998 follow copyright specific approach. The Horizontal approach is followed by Directive of the EU-
followed by many European countries like Sweden, Germany, France etc. UK also has a similar approach under
Defamation Act, 1996 and Criminal Justice and Public Order Act, 1994.
131 . Subs. by Act 10 of 2009 w.e.f. 27.10.2009.
132 . Super Cassetes Industries Ltd. v. MySpace Inc. & Anr. 2011 (48) PTC 49 (Delhi) at 102.
133 . Subs. by Act 10 of 2009 w.e.f. 27.10.2009.
134 . Lubitz Markus, Liability of Internet Service Providers Regarding Copyright Infringement – Comparison of US and
European Law , 33 International Review of Industrial Property and Copyright Law (2002) p. 26.
135 . US Copyright Office Summary DMCA, 1998 , (December 1998) pp.8-13.
136 . See United States Code, section 512 (a).
137 . Ibid ., section 512 (b).
138 . Ibid ., section 512 (c).
139 . < http://www.loc.gov/copyright/onlinesp />.
140 . < http://www.loc.gov/copyright/onlinesp/list >.
141 . United States Code, 1976, section 512 (c)(3).
142 . Ibid ., section 512 (g)(1).
143 . Ibid ., section 512 (f).
144 . Ibid., s ection 512 (d).
145 . Ibid ., sections 512 (f)(g).
146 . Ibid ., section 512 (e).
147 . See supra note. 12 on p. 216.
148 . See supra note. 11 on p. 215.
149 . Cases have been taken from Jule Sigall, The Challenges of Implementing the WCT and WPPT: National Experience
of USA , WIPO/CR/DEL/04/2 (b) and Jeffery P. Cunard, Keith Hill, Chris Barlas, Current Developments in the field of
DRM , SCCR/10/2 Rev. May 2004.
150 . 273 F. 3d429 (2nd Cir. 2001), affirming Universal City Studio, Inc . v. Reimerdes , 111 F. Supp. 2d 346 (S.D.N.Y.
2000).
151 . digital-law-online.info/cases/62PQ2D1736.htm accessed on 14 February, 2013; 203 F. Supp. 2d 1111 (N.D. Cal.
2002).
152 . 253 F. Supp. 2d 943 (E.D. Ky2003), appeal filed, No. 0305400 (6th Cir. 2003).
153 . J.R. Mathiason and C.C. Kuhlman, "International Public Regulations of the Internet: Who Will Give You Your Domain
Name?" at http:www.int/mgt.com/domain.html (March 1998): "Internet addresses have no fixed location. They are
purely conceptual: The routers which direct packets to the packet address at rates between 1,00,000 and 5,00,000 a
second can know only the next logical point in a routing table and which outbound circuit is available to carry the
packet. Packets are free to traverse the globe on countless circuits to geographically indeterminate end points. The
technology provides assurance that the packets are reassembled in the right order and are very likely not corrupted by
data errors".
154 . See the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
(1968) (January 26, 1998); Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters (1988); Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters (1971).
155 . Hilton v. Guyot (1895) 154 U.S. 113.
156 . Berne Convention (1971), Article 33.
157 . International Shoe Co. v. Washington , 326 U.S. 310 (1945).
158 . 937 F Supp. 161 C D Conn 1996).
159 . (WD pa 1996) 952 F Supp 1119, at p 1124.
160 . See also Inset Systems Inc . v. Instruction Set Inc . 937 F Supp 161; Telco Communications Group Inc . v. An Apple a
Day Inc . 977 F. Supp 404 (1997); These cases are quoted in Rodney D. Ryder, supra note 7 at p. 191.
Page 34 of 34
161 . International Herald Tribune , 29 May, 2000.

162 . Lee Burgunder, Legal Aspects of Technology (West Legal Studies in Business, 2nd ed., 2001) p. 26.
163 . For conflict of laws principles over the Internet see A. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on
Global Networks , 19 Michigan International Law (1998) p. 799;J. Ginsburg, Copyright Without Borders ?, Choice of
Forum and Choice of Law for Copyright Infringement Law Journal (1997) p. 153.
164 . See Escorts Construction Equipment Limited v. Gautam Engineering Equipment Limited , 2010 (44) PTC 636 (J&K);
Super Cassettes Industries v. MySpace Inc. & anr . 2011 (48) PTC 49 (Delhi) at 92.
165 . The information about the center is available at http://arbiter.wipo.int. The Centre has published several guides to
different dispute resolution procedures which may be obtained in hard copy by containing the center or which may be
downloaded from the center’s website.
166 . WIPO, Primer on Electronic Commerce and Intellectual Property Issues ; WIPO/OLOA/EC/PRIMER, Geneva, (May
2000) p. 75. Also available at < http://ecommerce.wipo.int> .
167 . Lee Burgunder, supra note 64 at p. 233.
End of Document
CHAPTER XI - Remedies against Infringement of Copyright
ALKA CHAWLA
XI Remedies against Infringement of Copyright
1. INTRODUCTION
The owner of the copyright has two kinds of machineries available for enforcing the copyright:
1. Administrative machinery consisting of the Registrar of Copyright, the Copyright Board and the Customs
authorities under the Customs Act.
2. Judicial machinery which provides civil remedies under Chapter XII (sections 54-62) and criminal remedies under
Chapter XIII titled "Offences" (sections 63-70). The copyright owner can decide which remedy he wants to use.
2. ADMINISTRATIVE MACHINERY
(a) Border measures or remedy to prevent importation of infringing copy [ Section 53]
One of the major concerns of copyright owners has been the trans-border movement of infringing material. The
onus of prevention of this movement has always been on the customs authorities. The customs authorities of
respective countries initially had freedom to formulate norms for this purpose. However, the TRIPS Agreement for
the first time laid down minimum standards to be followed by member countries in Part III dealing with Articles 49-
60. India is a signatory to TRIPS, therefore, it has complied with the norms laid down therein.
Section 53 of the Copyright Act prior to 2012 amendment provided remedy to prevent the importation of infringing
copies into India. The section had to be read with section 11 of the Customs Act. The procedure laid down under 53
was as follows :
(1) The owner of the copyright in any work or his duly authorised agent could file an application on payment of
the prescribed fee to the Registrar of Copyrights, requesting him that copies made out of India of the work
which if made in India would infringe copyright shall not be imported.
(2) The Registrar after making such inquiry as he deemed fit could pass such an order. The Registrar of
Copyrights or any person authorised by him in this behalf had power to enter any ship, dock or premises
where any such copies as are referred to be found and examine such copies.
(3) All copies to which any such order was made were deemed to be goods of which the import has been
prohibited or restricted under section 11 of the Customs Act, 1962, and all the provisions of that Act had
effect accordingly.Section 11 of the Customs Act provides that if the Central Government is satisfied that it
is necessary for the protection of patents, trademarks and copyright, it may prohibit either absolutely or
subject to conditions, the import or export of goods of any specified description.
(4) The goods confiscated in normal course under the Customs Act vest in the government but proviso to
section 53 (3) provided that all copies confiscated by order of Registrar under section 53 (1) shall be
delivered to the owner of the copyright in the work.
The Supreme Court in Gramophone Co. of India Ltd. v. Birendra Bahadur Pande , 1 was faced with the issue of
interpretation of the word "import" used in section 53 of the Copyright Act. The word is not defined in the Copyright
Act though it is defined in the Customs Act. The court held that:
Page 2 of 16
the same word may mean different things in different enactments and in different contexts. It may even mean different
things at different places in the same statute. It all depends on the sense of the provision where it occurs. Reference to
dictionaries is hardly of any avail, particularly in the case of words of ordinary parlance with a variety of well known
meanings. Such words take colour from the context. We may look at Section 53, rather than elsewhere to discover the
meaning of the word "import". We find that the meaning is stated in that provision itself. If we ask what is not to be imported,
we find the answer is copies made out of India which if made in India would infringe copyright. So it follows that ‘import’ in
the provision means bringing into India from out of India. That, we see is precisely how import is defined under the Customs
Act.Section 2 (23) of the Customs Act, 1962 defines the word in this manner: "Import, with its grammatical variation and
cognate expression means bringing into India from a place outside India." But we do not propose to have recourse to
Customs Act to interpret expressions in the Copyright Act even if it is permissible to do so because Section 53 of the
Copyright Act is made to run with Section 11 of the Customs Act. Goods in transit, once on Indian Territory, are considered
to have been imported,irrespective of whether they have been sold, and if such imported goods are found to be in violation
of Indian copyright laws, they cannot be allowed to be imported/circulated on Indian Territory.
The Supreme Court described one fundamental difference between notification under section 11 of the Customs
Act and an order made under section 53 of the Act to be that the former is quasi -legislative in character, while the
latter is quasi -judicial in character. The quasi -judicial nature of the order made under section 53 is further
emphasized by the fact that an appeal is provided to the Copyright Board against the order of the Registrar under
section 72 of the Copyright Act. The effect of an order under Section 53 of the Copyright Act is not as portentous as
a notification under section 11 of the Customs Act. The Registrar is not bound to make an order under section 53 of
the Copyright Act as soon as an application is presented to him by the owner of the Copyright. He has naturally to
consider the content of the mischief sought to be prevented. He must consider whether the copies would infringe
the copyright if the copies were made in India. He must consider whether the applicant owns the copyright or is the
duly authorized agent of the owner of copyright. He must hear those claiming to be affected if an order is made and
consider any contention that may be put forward as an excuse for the import. He may consider any other relevant
circumstance. Since all legitimate defences are open and the enquiry is quasi -judicial, no one can seriously
complain.
The purpose of the provision was to provide an effective tool in the hands of the Registrar for combating the
growing menace of pirate goods like audio-video cassettes, CDS, tapes, books etc. which originate from other
countries having weak copyright law or weak enforcement procedures.
The Anti-Counterfeiting Committee of International Trade Marks Association organized a Round Table Conference
in New Delhi on 10 March, 2005 to address issues relating to the role of custom authorities, the Registrar of
Copyright and related authorities to curb and prevent cross-border counterfeiting and parallel imports in India. 2
They suggested that section 53 of Copyright Act empowering the Registrar of Copyright to ascertain whether
infringing goods are present on a ship or dock and then the custom authorities to act on it is not a workable
provision. The customs and Registrar of Copyright cannot be expected to collaborate with each other within the
time frame for cross-border enforcement. It was felt that customs should wield independent authority to detain
goods and adjudicate cases. They also suggested that the importer of the goods should be required to indicate the
place of manufacture of items that are imported into India.
Pursuant to the representations the Central Government made Intellectual Property Rights (Imported Goods)
Enforcement Rules, 2007 and thereafter substituted section 53 with a new provision by amending the Copyright Act
in 2012. The aforesaid Rules and the amendment are in pari materia with each other. The new section 53 provides
as follows:
3[(1) The owner of any right conferred by this Act in respect of any work or any performance embodied in such work, or his
duly authorised agent, may give notice in writing to the Commissioner of Customs, or to any other officer authorised in this
behalf by the Central Board of Excise and Customs,—
(a) that he is the owner of the said right, with proof thereof; and
(b) that he requests the Commissioner for a period specified in the notice, which shall not exceed one year, to treat
infringing copies of the work as prohibited goods, and that infringing copies of the work are expected to arrive in India at a
time and a place specified in the notice.
(2) The Commissioner, after scrutiny of the evidence furnished by the owner of the right and on being satisfied may, subject
to the provisions of sub-section (3), treat infringing copies of the work as prohibited goods that have been imported into
India, excluding goods in transit:
Page 3 of 16
Provided that the owner of the work deposits such amount as the Commissioner may require as security having regard to
the likely expenses on demurrage, cost of storage and compensation to the importer in case it is found that the works are
not infringing copies.
(3) When any goods treated as prohibited under sub-section (2) have been detained, the Customs Officer detaining them
shall inform the importer as well as the person who gave notice under sub-section (1) of the detention of such goods within
forty-eight hours of their detention.
(4) The Customs Officer shall release the goods, and they shall no longer be treated as prohibited goods, if the person who
gave notice under sub-section (1) does not produce any order from a court having jurisdiction as to the temporary or
permanent disposal of such goods within fourteen days from the date of their detention.]
The amendment has brought forth following significant changes:
(1) Section 53 is not applicable to goods in transit.

(2) The custom authorities are not required to collaborate with the Registrar of Copyright before taking any action.
(3) The owner of the work has to deposit some amount as security having regard to the likely expenses on demurrage, cost
of storage and compensation to the importer in case it is found that the works are not infringing copies
(4) The person giving notice has to produce an order from a court having jurisdiction as to the temporary or permanent
disposal of such goods within fourteen days from the date of their detention.
(b) Border measures required under international conventions
The Berne Convention provides that recordings of musical works made on the basis of Article 13 (1) and (2) of the
Convention allowing the application of non-voluntary licences and imported without permission from the parties
concerned into a country where they are treated as infringing recordings are liable to seizure [Article 13 (3)]. Article
16 further provides that infringing copies are liable to seizure in any country of the Union where the work enjoys
legal protection. The fact that infringing copies come from a country where the work is not protected, or has ceased
to be protected is irrelevant. The seizure will take place in accordance with the law of the country where the work
enjoys legal protection.
Since TRIPS, 1995, administered by WTO complies with Article 1 -21 and Appendix of the Berne Convention, the
above stated Articles 13 & 16 will become a part of TRIPS also. Section 4 of TRIPS Agreement specifically deals
with "Special Requirements Related to Border Measures" to be followed by member States and provide detailed
guidelines with which such border measures must conform in Articles 52-60.
The WCT and WPPT like TRIPS provide that member States shall comply with Articles 1-21 and Appendix of Berne
Convention. Both the treaties further oblige the State parties to provide effective enforcement procedures in their
national laws against any act of infringement of rights as provided in those treaties. The member States shall also
provide expeditious remedies to prevent infringements and to act as deterrents for further infringements. This
includes civil, administrative and criminal remedies.
India is a party to Berne and TRIPS but not to WCT and WPPT.
(c) Powers of the Copyright Board
A Copyright Office is established for the purposes of this Act. It is under the immediate control of Registrar of
Copyright who acts under the superintendence and direction of the Central Government. 4
A Copyright Board is constituted under section 11 of the Act for the discharge of certain judicial functions. 5 It
consists of a Chairman and two other members. 6The Board has power to regulate its own procedure, including the
fixation of places and time of its sittings. The Board is deemed to be a civil court for the purpose of sections 480 and
482Code of Criminal Procedure. All the proceedings before the Board are deemed to be judicial proceedings within
the meaning of sections 193 and 228 Indian Penal Code. The following matters are to be decided by the Copyright
Board:
(1) Whether a work has been published or as to the date on which the work was published for the purposes of
Chapter V [section 6 (a)].
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(2) Whether the term of the copyright for any work is shorter in any other country than under the Act [section 6
(b)].
(3) Disputes arising in respect of assignment of copyright under section 19A are to be decided by the
Copyright Board. The amendment of 2012 mandates the Copyright Board to decide the complaints within a
period of six months from the date of receipt of complaint and in case it is not able to do so then it shall
record reasons for the same.
(4) Complaint is made to the Copyright Board against the owner of copyright that he (a) has refused to re-
publish or allow the re-publication of the work or has refused to allow the performance in public of the work,
and by reason of such refusal the work is withheld from the public; or (b) has refused to allow
communication to the public by broadcast, of such work or in the case of sound recording the work
recorded in such sound recording, on terms which the complainant considers reasonable. The Copyright
Board determines whether the compulsory licences in respect of works withheld from public shall be
granted or not [section 31].
Prior to the 2012 amendment the provision was narrow as it was applicable only for Indian works
withheld from public.
(5) Where any unpublished or published work or work communicated to the public is withheld from the public
in India and the author is dead or unknown or cannot be traced, or the owner of the copyright in such work
cannot be found, any person may apply to the Copyright Board for a licence to publish or communicate to
the public such work or a translation thereof in any language [section 31A].
Prior to the 2012 amendment the provision was applicable to only the unpublished Indian works.
(6) A new provision section 31B has been inserted to benefit the persons with disability. The Copyright Board
may issue a compulsory licence to publish any work in which the copyright subsists for the benefit of
persons with disability.
(7) The Copyright Board has the power to grant statutory licence for making cover versions and fix rates of
royalties [section 31C introduced by the amendment of 2012].
(8) The Copyright Board has the power to grant statutory licence for broadcasting of literary and musical works
and sound recording and fix separate rates of royalties in case of radio and television broadcasting [section
31D introduced by the amendment Act of 2012].
(9) The Copyright Board can rectify the Register of Copyright on an application of the Registrar of Copyright or
of any person aggrieved by making of an entry wrongly omitted or expunging of any entry wrongly made or
correction of an error [section 50].
(d) Appeals against orders of Registrar of Copyrights and Copyright Board [Section 72]
Any person aggrieved by any decision or order of the Registrar may appeal to the Copyright Board within three
months from the date of the order of decision.
An appeal against all orders passed by the Copyright Board except under section 6 (dealing with publishing of work
or temporal duration) lies to the High Court within whose jurisdiction the appellant resides or carries on business.
3. JUDICIAL MACHINERY
(a) Civil remedies
Civil remedies include such remedies as are normally available to those whose proprietary rights have been
invaded. Section 54 specifies that only an "owner of copyright" which includes an exclusive licensee can file a suit
for civil redress. In case of anonymous or pseudonymous literary, dramatic, musical or artistic works, "publisher" is
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the owner till the identity of any of the authors is disclosed.
(i) Jurisdiction
A civil suit is normally instituted by way of filing of a plaint in the District Court/High Court.Section 62 of the
Copyright Act allows a plaintiff to sue for infringement in a court within whose jurisdiction the plaintiff resides or
carries on business or works for gain and not necessarily where the infringement takes place. The plaintiff may also
file an application for interim relief pending trial, which may include an interlocutory injunction, appointment of Court
Commissioner/Receiver to visit the defendant’s premises to take stock or make an inventory of infringing rights of
the owners. The court has been liberal in granting injunctions where there has been a prima facie case of piracy or
counterfeiting.
In Ritika Limited v. Pramod Kanodia, 7 the court observed that section 62 is more or less a self contained code so
far as jurisdiction in relation to matters arising under Copyright Act is concerned. In Caterpillar Inc. v. Kailash
Nichani , 8the court observed that section 62 of the Act makes an obvious and significant departure from the norm
that the choice of jurisdiction should primarily be governed by the convenience of the defendant. The legislature in
its wisdom introduced this provision laying down the absolutely opposite norm to the one set out in section 20 of the
Civil Procedure Code. The purpose is to expose the transgressor/pirate with inconvenience rather than compelling
the sufferer to chase after the former.
In Tata Oil Mills Co. Ltd. v. Hansa Chemical Pharmacy , 9 it was held in respect of Union Territory of Delhi, High
Court of Delhi has the civil original jurisdiction in every suit the value of which exceeds the amount mentioned in the
Delhi High Court Act and as such in the District Court within section 62 of the Copyright Act.
(ii) Reliefs available
Civil remedies can be divided into three categories:

(A) Injunctions
(B) Damages
(C) Account for profits
(A) Injunctions
1. Interlocutory injunction.
Issuance of injunction is always at the discretion of the court, therefore, it cannot be demanded as a matter of right.
However, such issuance must be guided by some legal principles which cannot be arbitrary, vague and fanciful.
Interlocutory injunction is granted under Rules 1 and 2 of Order XXXIX of the Code of Civil Procedure, 1908. An
interlocutory injunction may be granted even if the plaintiff does not fully establish his title to the copyright or has
only an equitable right or the quantity of the alleged infringing copies have not been ascertained. The plaintiff
seeking injunction:
(a) has to make out a prima-facie case in his favour and
(b) has to convince the court that if interlocutory injunction is not granted it will cause irreparable injury to the
plaintiff.
The courts are duty bound to consider the amount of substantial mischief done or threatened and compare it with
injury it can inflict upon the defendant. The court in such cases is duty bound to weigh one need against another
and determine where the balance of convenience lies. Justification for temporary injunction demands that it must be
shown to the court that the work is covered under copyright which has been infringed and would cause irreparable
injury if such relief is denied.
To minimize the damage being inflicted by piracy, or infringement it will be crucial for a copyright owner to take swift
action to prevent its continuation. For as long as piracy continues, he will be deprived of a portion of his potential
market, and thus of the capacity to recover the economic reward for his creativity or investment. The aim of the
interlocutory injunction is to meet this need by granting speedy and temporary relief during the period before a full
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trial of an infringement action takes place, thus preventing irreparable damage from occurring to the plaintiff’s rights.
Section 55 of the Act provides the remedy of injunction against the infringement of copyright.
The Delhi High Court in Penguin Book Ltd. v. M/s India Book Distributors , 10 and the Bombay High Court in N. T.
Ragunathan v. All India Reporter , 11 while following the English principles laid down that since most infringements
of copyright consist of a continuous process of successive infringing acts, injunction is not only the most important
but also the only effective remedy. The court felt that in cases of infringement of copyright, award of damages in
most cases would not be a proper remedy as it is difficult to quantify such damages as harm to property, goodwill
and economic returns would be difficult to ascertain.
An interlocutory injunction shall not be granted :

(i) where the defendant might suffer irreparable injury, or
(ii) where passing an order against the defendant to keep an account can protect the plaintiff’s interest.
(iii) where a bona fide defence of fair dealing has been pleaded, or
(iv) if the plaintiff has been guilty of undue delay in approaching the court, or his conduct amounted to
acquiescence in the infringement or if there is a substantial doubt as to the plaintiff’s right to succeed.
In Media Transasia Ltd. & Anr. v . Indian Airlines Ltd. & Ors , 12 the appellants, in spite of possessing the
information regarding respondents’ activities, did not take immediate legal action. The suit was filed by the time a
new contract was born and third party rights had been created in favour of the respondent. By that time respondent
had made substantial investment as it was obliged under the new contract. The delay in filing the suit, therefore,
proved fatal and interim injunction was denied to the appellants.
2. Anton Piller order.
The Anton Piller order 13 is an order granted by the court permitting the inspection of premises on which it is
believed that some activity which infringes the copyright of the plaintiff is being carried on. The order has a number
of features which makes it a particularly appropriate remedy in the context of piracy.
First, the order is granted ex parte , that is, on the application and in the presence alone of the copyright owner,
without prior warning being given to the defendant. The essence of the order is that it takes the defendant by
surprise, and precludes the defendant from destroying or removing vital evidence. The order is not a search warrant
it only authorizes an inspection of premises with the permission of the defendant. Entry without permission of the
defendant would be trespass.
Second, the terms on which the order is granted enables the copyright owner to inspect the premises of the
defendant, and all documents (including business information, such as bills, invoices, sources of supply and
customer lists) relating to the alleged infringement. By virtue of these terms, the copyright owner is given the means
whereby he may be able to establish the source of supply of pirated works, and the extent of sales, which have
taken place, which will assist him in establishing the amount of damages to which he may be entitled.
Third, the order for inspection is often accompanied by an injunction restraining the defendant from altering or
removing in any way articles or documents referred to in the order for inspection.
The Anton Piller order has constituted an important weapon in the armory against piracy. Since it is granted on an
ex parte basis, it can be open to abuse. Lord Denning sounded a word of caution:
In the enforcement of this order the plaintiff must act with due circumspection. On the service of it, the plaintiffs should be
attended by their advocate. They should give the defendants an opportunity of considering it and of consulting their own
solicitor. If the defendants refused permission to enter or to inspect, the plaintiff must not force their way. They must accept
the refusal and bring it to notice of the court. 14
The Division Bench of the Delhi High Court in Autodesk Inc. v. A.V.T. Shankardass , 15 issued guidelines for the
issue of Anton Piller Order in case of software infringement to prevent abuse of this order. The court heard the
recommendations of both parties for guidelines to be set, and observed that it was neither feasible nor practical to
lay down guidelines, which would cater to numerous and all the situations that may arise. However, the following
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factors and guidelines were enumerated to govern the appointment of a Local Commissioner in software
infringement and piracy matters:
(1) The object of appointment of a Local Commissioner in software piracy matters is not as much to collect evidence but to
preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the
premises of the opposite party alone and in the absence of an ex parte appointment of a Local Commissioner there is
likelihood that such evidence may be lost, removed or destroyed;
(2) Request for ex parte appointment of a Local Commissioner in such matters is usual and in fact is intended to subserve
the ends of justice as it is imperative to have an element of surprise so that the actual position is not altered;
(3) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence
should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/
incriminating evidence at the initial stage itself. It has to be tested on the touchstone of pragmatism and the natural and
normal course of conduct and practice in trade.
(4) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access
to the defendant’s premises. Any such attempt also inheres in it the possibility of disappearance of the pirated
software/incriminating evidence in case the decoy customers is exposed. Accordingly, visit by decoy customer or
investigator is not to be insisted upon as pre condition. A report of private Investigator need not be disregarded or rejected
simply because of his engagement by the plaintiff. The information provided by the private Investigator should receive
objective evaluation.
(5) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence
is not available or where the Court may nurture some element of doubt, it may consider asking the plaintiff to deposit cost in
Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably
compensated for the obtrusion in his work or privacy.
The court, however, did not lay down any guidelines to protect the interest of the defendant so that a balance could
be maintained in meeting the ends of justice. This order cannot take the place of search warrant since the
defendants can refuse entry and inspection by the plaintiff. However, such refusal can only be at the cost of
suffering the consequences of contempt of court.
3. Mareva injunction.
Mareva injunction restrains the defendant from disposing of assets which may be required to satisfy the plaintiff’s
claim or removing them from the jurisdiction of the court. In CBS v. Lambert , 16 the principal assets were cars, the
order included a provision requiring the defendant to disclose their whereabouts. The prevention of disposal is not
of much use if the plaintiff cannot locate the assets when it comes to seek to enforce the final judgment. The
combination of Anton Piller order and Mareva injunction can destroy the defendant’s business.
4. Permanent injunction.
The two usual remedies, which are available for copyright owners in common-law jurisdictions following the final
trial of an infringement action, are: 1) a perpetual injunction and 2) damages. The perpetual injunction, which lasts
up to the unexpired term of the copyright, is granted in order to prevent any further repetition of the infringing action.
In order to make the injunction effective, it is often coupled with an order for the delivery by the infringer of all
infringing copies of the copyright work. All infringing copies are deemed to be the property of the owner of the
copyright, who accordingly may take proceedings for the recovery of possession thereof. 17
The plaintiff need not prove actual damage for the entitlement of the final injunction but he has to prove that his
copyright has been infringed. The judges have to be convinced that the defendant is likely to continue with the
infringement before they grant permanent injunction.
In K.P.M. Sundhram v . M/s Rattan Prakashan Mandir , 18 the plaintiff, who was author of several books instituted
the suit against defendants for injunction, restraining them from printing, publishing and selling the specified books,
rendition of accounts for the illegal gains made by them and for damages under the provision of sections 55 and 57
of the Act. The court held that the plaintiff had a strong prima facie case with a probability of success and the
balance of convenience was also in his favour. Further, withholding of injunction would be more injurious to
plaintiff’s right than the grant of injunction would impose burden on defendants.
In Hawkins Cookers Ltd. v. Magicook Appliances Co ., 19 also the court granted permanent injunction to the plaintiff
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by restraining defendants from dealing in any manner, whatsoever with their cookbooks having passages
reproduced from the cookbooks of the plaintiff.
The problem is faced in those cases where only a part of the work in which copyright subsists has been duplicated
and included in the alleged infringing work. The courts have to decide whether injunction to such part would mutilate
the entire work of the infringer. If the infringing part can be separated from other parts of the infringing work, the
injunction should be confined to the infringing part since it may be possible for the infringer to rearrange his material
and reap the fruits of his labour by publishing his work after omission of the infringing part. But, if infringing material
is so inextricably intermingled that the pirated work cannot be separated from the rest, then the infringer who made
improper use of that which did not belong to him must suffer the consequences of his wrong doing.
5. John Doe or Ashok Kumar order.
The term ‘John Doe Injunction’ (or John Doe Order ) is used in UK to describe aninjunctionsought against someone
whose identity is not known at the time it is issued. The first time this form of injunction was used since 1852 in the
United Kingdom was in 2005 when lawyers acting for JK Rowling and her publishers obtained an interim order
against an unidentified person who had offered to sell chapters of a stolen copy of an unpublished Harry Potter
novel to the media. 20
John Doe Order has been passed by Delhi High Court in a number of cases against anonymous offenders. For
example, Mirabhai Films got a John Doe Order against all cable operators before the release of "Monsoon
Wedding" . It was again passed against various cable operators as they were showing pay channels using
illegal decoders imported from Gulf and were not paying any subscription money to these channels. 21
The order was also passed in favour of Reliance Big Entertainment Ltd. v. Multivision Network and Ors. on
19.12.2011 for movie "Don 2 " against unnamed and undisclosed persons.
Recently the Chennai High Court passed a John Doe Order against M/s. Fifteen Major ISPS and Mr Ashok Kumar,
Ashok Kumar, Ashok Kumar, Ashok Kumar and Ashok Kumar that they should not infringe the copyright of the film
"3".
It was ordered that:
the respondents/defendants herein, and other unknown persons by themselves, their partners/proprietor, heirs,
representatives, successors in business, assigns, distributors, agents or anyone claiming through them be and are
hereby restrained by order of interim injunction until further orders of this court from, in any manner infringing the
applicants copyright in the cinematographic films/ motion picture "3" by copying, recording, reproducing or allowing
camcording or communication or allowing others to communicate to making available or distributing or duplicating
or releasing or showing or uploading or downloading or exhibiting or playing in or in any manner communication in
any manner without a proper license form the applicant or in any manner that would violate/ infringe the applicants
copyright in the said cinematograph film "3" through different mediums including CD, DVD, Blu-Ray disc, VCD,
Cable TV, Direct to home services, internet services, multimedia messaging services, pen drives, hard drives,
tapes, conditional access systems or in any other like manner whatsoever.
6. Injunction for groundless threat of legal proceedings. The provisions of section 60 make it clear that if a person is
threatened with any alleged infringement of copyright and if, in fact, the actions of the persons threatened do not
constitute any infringement of the legal right of the person who makes such threats, he can file a declaratory suit
and obtain an injunction against the continuance of such threats. He can also obtain damages, which he may have
sustained by reason of such threats. The court in Super Cassettes Industries Ltd. v. Bathla Cassettes India , 22 held
that these provisions are designed to protect a person against any wrongful threats relating to infringement of
copyright and the only relief which can be asked for is an injunction against the continuance of such threats and
damages occasioned by reason of such threats. The proviso to this section makes this position amply clear
because it provides that this section will have no application if a person, who has made such threats, commences
and prosecutes with due diligence an action for infringement of the copyright claimed by him. Once the person who
has given the threat files a suit for infringement of the copyright, the suit under section 60 becomes infructuous as
the section ceases to apply in such a situation.
(B) Damages
The damages is an important remedy available to a copyright owner. The object of an award of damages to a
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copyright owner is to restore the copyright owner to the position he would have been had his copyright not been
infringed. This also includes violation in cases of published as well as unpublished work though the quantum of
damages in both the cases may be different. A difficulty often encountered in obtaining a satisfactory judgment in
damages is the production of evidence as to the extent of sales which have taken place and thus the extent of
damage which has been caused to the plaintiff’s copyright. It is for this reason that the recent developments in
preliminary remedies, such as the Anton Piller order, which are aimed at enabling a plaintiff to acquire evidence of
infringement, are particularly important.
In US, the copyright owner is entitled to recover the actual damages suffered by him or her as a result of the
infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account
in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present
proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and
the elements of profit attributable to factors other than the copyrighted work.
In UK and US there is a provision for additional damages in the case of flagrant infringement of copyright. It is
necessary to establish that the infringer’s conduct has been deliberate and calculated, and that he has obtained a
pecuniary advantage in excess of the damages that he would otherwise have to pay. There is no provision in the
Indian Act for the award of additional damages in special circumstances such as flagrancy of the infringement or the
fortune reaped by the defendant by his misdeed. However, infringement of copyright being a tort, there is no bar for
court in India to award exemplary or punitive damages in appropriate cases. It has in fact done so in a number of
situations, specially where computer software has been loaded by a computer seller without any licence to do it.
The principle of additional damages was followed by the Delhi High Court first in Aktiebolaget Volvo & Ors. v. A.K.
Bhuva and Ors , 23 and later reiterated in Microsoft Corp. v. Deepak Raval and Ors . 24 It was observed:
It becomes manifest that the Courts in India have treaded the same path and applied the same principles as applied by US,
UK and Australian Courts in awarding the damages and have recognized that compensatory as well as punitive damages
are to be awarded. The justification for award of compensatory damages is to make up for the loss suffered by the plaintiff
and the rationale behind granting punitive damages is to deter a wrong doer and the like minded from indulging in such
unlawful activities. This is more so when an action has criminal propensity. Thus, while awarding punitive damages the
Courts have taken into consideration the conduct of the defendants.
In Microsoft’s case cited above, the plaintiff was famous for its business software such as Microsoft Windows,
Microsoft Office etc. which have been installed and used on millions of computers all over the world. The
defendants infringed the plaintiff’s copyright in software by loading unlicensed and/or pirated versions of plaintiff’s
software onto the hard disc of computers assembled and sold by them. The defendants infringed the copyright of
plaintiff under section 14 (1) (a) and (d).
(C) Account of profits
The defendant may be asked to account to plaintiff the profits earned by him on account of infringing the copyright
of plaintiff. For this purpose, there has to be an investigation of actual accounts of defendant. In M.L. Gupta v. The
Board of School Education, Haryana , 25 the defendant was ordered to pay 20% of the profits to the plaintiff, as the
matter copied was less than one-tenth of the book.
In P. Lakshmikantham v. Ramkrishna Pictures, 26 the court held that the remedy of injunction can be joined either
with that of the damage or accounts, but the remedies of accounts and damages can in no case be joined.
(D) Civil remedies under international conventions
Part III of TRIPS Agreement dealing with "Enforcement of IPRS" provides eight Articles, which comprehensively lay
down the civil and administrative procedures and remedies. There are no corresponding provisions in the treaties
administered by WIPO. Articles 44-46 specifically require the member States to endow its judicial authorities with
the power to issue order of injunction, power to order payment of damages adequate to compensate the right holder
where the infringer knowingly, or with reasonable grounds to know, engaged in the infringing activity and to order an
infringer to pay the right holder’s fees. To deter infringement Article 46 provides that a member must endow its
judicial authorities with the power to order that infringing goods, and materials and implements used in their
creation, be disposed of or destroyed without compensation (subject to Constitutional restrictions) taking into
account the need for balance between the seriousness of the infringement and the remedies ordered and the
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interests of third parties.
(b) Criminal remedies
The Copyright Act provides criminal remedies also against infringement of copyright. This remedy is distinct and
independent and can be availed of simultaneously with the civil remedies. Imprisonment of the accused or
imposition of fine or both, seizure and delivery-up of all infringing copies to the owner of copyright are the criminal
remedies. Infringement of copyright is a cognizable offence. Here, mens rea in the form of knowledge of the
accused is an essential element to constitute the offence of infringement for criminal prosecution. Neglect to
ascertain the facts relating to copyright will not tantamount to knowledge. Clear and cogent proof of knowledge is
necessary to establish the commission of the offence. 27 However, in S.R. Upadhyaya v. G.C. Nepali , 28 the court
held that there is a presumption in favour of existence of knowledge if a person publishes something in which he
knows that he neither has a copyright nor is right to publish given to him by the copyright owner.
A criminal complaint cannot be dismissed on the ground that the dispute is civil in character. 29 The pendency of a
civil suit does not justify the stay of criminal proceedings in which the same question is involved. However, a
criminal court may not give a finding on the question of infringement if the same issue is pending for decision in a
civil suit. 30 Thus, it is advisable to initiate civil as well criminal proceedings simultaneously. No prejudice is likely to
be caused to any of the parties inasmuch as both the actions are not mutually exclusive but clearly co-extensive
and quite different in content and consequence. 31
Chapter XIII of the Act deals with the offences relating to infringement of copyright. Section 63 makes it an offence
for a person to knowingly infringe or abet the infringement of: (a) the copyright in a work, or (b) any other right
conferred by this Act, except the right conferred by section 53A. However, construction of a building or other
structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an
offence under this section. 32
The section provides that the accused shall be punishable with imprisonment for a term which shall not be less than
six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but
which may extend to two lakh rupees. However, the proviso to the section gives the courts discretion to impose a
sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees where the
infringement has not been made for gain on the course of trade or business. The discretion is not arbitrary and
fanciful, as the court has to mention in the judgment adequate and special reasons for doing so. It is to be noted
that for the second and subsequent convictions, the minimum term of imprisonment is enhanced to one year but
which may extend to three years and minimum fine to rupees one lakh which may extend to two lakhs. However,
the punishment may be relaxed for adequate and special reasons to be mentioned in the judgment where the
infringement was not made for gain in the course of trade or business.
Section 63 creates offences and section 63 to 63B deal with various penalties and procedures to be followed in
combating the offences. The offence under section 63 of the Act is non-bailable and no court inferior to that of a
Metropolitan Magistrate or a Judicial Magistrate of the First Class can try any offence under this Act. 33 The
provisions of section 438 of the Criminal Procedure Code can be applied in respect of offence punishable under
section 63 of the Act. 34
(i) Infringement of copyright in computer programmes
The Copyright (Amendment) Act, 1994 inserted a new section 63B which provides that if a person knowingly makes
use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term
which shall not be less than seven days but which may extend to three years and with fine which shall not be less
than fifty thousand rupees but which may extend to two lakh rupees. However, where the computer programme has
not been used for gain or in the course of trade or business, the court may for adequate and special reasons to be
mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to
fifty thousand rupees.
(ii) Power of the police to seize infringing copies
Sub-section (1) of section 64, amended by the Copyright (Amendment) Act, 1984, provides that where a police
officer not below the rank of sub-inspector of police is satisfied that an infringement or an abetment of infringement
of copyright in any work has been or is likely to be committed, he may seize without any warrant all copies of the
work and all plates used for the purpose of making infringing copies of the work, wherever found and all copies and
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plates so seized shall, as soon as practicable, should be produced before a Magistrate. However, any person
having any interest in any copies of a work seized by the police may, within 15 days of such seizure apply to the
Magistrate for restoration to him of such copies. The Magistrate will, after hearing the applicant and the complainant
and making any further inquiries if necessary, pass such order as he may deem fit. 35
In Event and Entertainment Management Association v. Union of India , 36 the question of Constitutional validity of a
circular issued by Commissioner of Police, Delhi regarding powers of police under section 64 was challenged. The
circular after reproducing section 51 of the Act read:
It is emphasised upon all concerned that whenever any complaint is received from M/s Super Cassette Industries Ltd. in
respect of violation of the provisions of Copyright Act, 1957, the same may be attended to and police assistance may be
provided as we are doing in case of PPL and IPRS.
The court set aside the circular to the extent that it required police force in Delhi to treat complaints received from
SCIL about violation of the Act as a class requiring a special treatment. It held that the police is not expected to act
differently depending upon who the complainant is.
(iii) Protection of technological measures [Section 65A]
This new provision has been inserted by the amendment of 2012. It provides as follows:
(1) Any person who circumvents an effective technological measure applied for the purpose of protecting any
of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with
imprisonment which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall prevent any person from:
Provided that any person facilitating circumvention by another person of a technological measure
for such a purpose shall maintain a complete record of such other person including his name,
address and all relevant particulars necessary to identify him and the purpose for which he has
been facilitated; or
(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a computer
network with the authorisation of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or
surveillance of a user; or
(g) taking measures necessary in the interest of national security
(iv) Protection of rights management information [Section 65B]
This provision is introduced by the Amendment Act of 2012.
Any person, who knowingly,—

(ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or
performance knowing that electronic rights management information has been removed or altered without authority,
Provided that if the rights management information has been tampered with in any work, the owner of copyright in such
work may also avail of civil remedies provided under Chapter XII against the persons indulging in such acts.
Page 12 of 16
(v) Penalty for making false entries in register
Section 67 states that any person who makes or causes to be made a false entry in the Register of Copyright
maintained under this Act, or makes or causes to be made a writing falsely purporting to be a copy of any entry in
such register or produces or tenders or causes to be produced or tendered as evidence any such entry or writing
knowing, the same to be false shall be punishable with: imprisonment which may extend to one year, or a fine, or
both.
(vi) Penalty for making any false statements for the purpose of deceiving or influencing any authority or
officer
Section 68 states that any person who makes a false statement or representation, knowing the same to be false: to
deceive any authority or officer in the execution of the provisions of the Act; or with a view to procuring the doing or
the omission of anything in relation to this Act or any matter thereunder, is punishable by: i. imprisonment which
may extend to one year; or ii. A fine; or iii. both.
(vii) Penalty for contravention of Section 52A with respect to records and video films
Section 68A states that a person who publishes a record or a video film in contravention of section 52A (pertaining
to particulars to be published on records or their containers or in video films, such as name and address of producer
and name and address of the owner of the copyright, etc.) will be punishable by imprisonment which may extend up
to three years and fine.
(viii) Offences by companies
Section 69 (1) states that when an offence under the Act has been committed by a company, the company and
every person who was in charge of, or was responsible to the company for the conduct of its business will be
deemed to be guilty of the offence and is liable to be proceeded against and punished accordingly. The proviso to
this section additionally states that a person who proves that the offence was committed without his knowledge or
that he exercised due diligence to prevent the commission of the offence will not be punished.
Section 69 (2) states that if an offence is committed under the Act by a company and it is proved that the offence
was committed with the consent of or connivance of or can be attributed to the negligence of a director, manager,
secretary or other officer of the company, the said person will be held guilty of the offence and is liable to be
proceeded against and punished accordingly.
(ix) The role of Central Government enforcement
The Central Government’s role in enforcement is an advisory and coordinating one. To this end a Copyright
Enforcement Advisory Council has been set up in the Ministry of Human Resource Development, which has
members from various State Governments, senior IG and DIG level police officers, and representatives from
different Central Government ministries, all of whom are concerned with the enforcement of the provisions of
copyright law in an official capacity in one way or the other. Moreover, the Copyright Enforcement Advisory Council
also has members from the industry and copyright societies like IMI.
The whole purpose of the advisory council is for the members to interact with each other and drawing from their
vast experience to find out and plug any lacunae in the existing copyright laws, and thereby to enhance
enforcement. Several ideas mooted in the Council are : special courts to be set up for the trying of copyright
offences, a special police force for enforcement, special cells in the police departments and in the States, etc.
(x) Disposal of infringing copies or plates
The court trying the offence of infringement of copyright may order that all copies of the work which appear to be
infringing copies or all plates for the purpose of making infringing copies in the possession of the alleged offender
be delivered up to the owner of the copyright without any further proceeding. It does not matter whether the
accused is convicted or not. This is so because the owner of the copyright is deemed to be the owner of all
infringing copies of the work in which copyright subsists and all plates used or intended to be used for the
production of such copies. However, for compensation in respect of conversion of infringing copies the owner of the
copyright has to go for civil proceedings.
Page 13 of 16
There have been very few prosecutions under the Act and the cases that have gone to appellate courts show that
the High Courts do not view criminal prosecution for infringement of copyright with due seriousness as is reflected
in judgements of Delhi High Court and Bombay High Court in Sitaram Silk Mills v. State , 37 and Gulfam Exports and
others v. Sayed Hamid , 38 respectively. In Sitaram Silk Mills, based on the complaint of the owner of the copyright a
prosecution was initiated for copyright infringement under section 63 of the Copyright Act and trademark
infringement under sections 78 and 79 of the Trademark Act, 1958 read with sections 420,489 o486 of Indian Penal
Code. A search was conducted in pursuance of the directions of the Magistrate and infringing goods were seized.
The Magistrate also took cognizance of the offence. However, a petition was filed before the High Court under
section 482 of Criminal Procedure Code for compromise of the criminal case. The court after identifying the party’s
role observed:39
In view of the above no useful purpose would be served by permitting the above complaint and proceedings to continue.
Accordingly, the petition is allowed. The above noted FIR and the proceedings emanative therefrom are quashed, subject
to the payment of Rs.10,000/- as costs the Legal Aid and Advice Board, Patiala House. Petition stands disposed of.
Earlier, in Gulfam Exports , the Bombay High Court was also reluctant to invoke criminal jurisdiction while a civil suit
was pending. In this case, the respondent, the owner of copyright, filed a private complaint in the court of the
Magistrate in 1991 alleging violation of copyright and after enquiry by the police, process was issued to the
petitioner. The petitioner filed petition for quashing of the process on the ground that the copyright was not
registered and a civil suit was pending. Even after repeated notice, the respondent did not appear in the matter. The
court after hearing the petitioner concluded that the complaint must be quashed since the copyright was not
registered and the civil suit was pending and that there was delay in filing the criminal case. The court did not
appreciate the fact that the existence of civil remedies is not a bar for criminal prosecution.
(xi) Criminal remedies under international conventions
Part III, Section 5, of the TRIPS Agreement entitled "Criminal Procedures" consists of one Article (Article 61), which
contains principles that pertain to criminal procedures for certain forms of infringement. In particular, the TRIPS
Agreement requires that members provide for criminal procedures and penalties in cases on a commercial scale.
Such penalties must include imprisonment and/or monetary fines sufficient to deter infringement and, in appropriate
cases, seizure, forfeiture and destruction of the infringing goods and related materials and implements. Members
are also free to provide in particular where they are committed willfully and on a commercial scale. Criminal
procedures and criminal penalties are neither required by, nor prohibited by, the treaties administered by WIPO.
POINTS TO REMEMBER
1. Two machineries for enforcement of copyright are Administrative and Judicial.
2. Customs authorities have the power to prevent importation of infringing copies under section 53. The amendment
of 2012 has brought section 53 in pari materia with section 11 of the Customs Act.
3. According to Supreme Court (1984) the word import includes "goods in transit" but the amendment of 2012
categorically states that "import does not include goods in transit".
4. The owner of copyright has to make a request to Commissioner of Customs to treat the "infringing goods" as
"prohibited goods". There is no need for Commissioner to collaborate with the Registrar of Copyright according to
the amendment of 2012.
5. Section 4 of TRIPS mandates member States to implement "Special Requirements related to Border Measures".
6. Copyright Board has one chairman and two members. It has the powers of a civil court and all proceedings
before it are deemed to be judicial proceedings.
7. Disputes regarding whether the work is published or not, term of copyright and assignment are decided by
Copyright Board.
Page 14 of 16
8. Copyright Board determines whether a compulsory license is to be granted for works withheld from public.
9. If a work is withheld from public because the author is dead or untraceable then Copyright Board may issue a
licence to any person who applies to the Board for such publication or communication to the public.
10. Copyright Board may issue a compulsory licence for publication of a work for the benefit of persons with
disability. This provision is introduced by the amendment of 2012.
11. Appeal from Registrar lies to Copyright Board and from Board to the High Court.
12. The civil remedies before judiciary are injunction, damages, account for profits.
13. Section 62 allows plaintiff to file a suit in a court within whose jurisdiction he resides or carries on business. This
is opposite to the norm laid down by section 20 of Civil Procedure Code.
14. Issuance of injunction is a discretion of the court. It is an equitable remedy. It is issued only when the plaintiff
makes out a prima facie case and convinces the court that if injunction is not granted then an irreparable injury will
be caused to him.
15. Interlocutory injunction is a temporary injunction and may be granted even if the plaintiff does not fully establish
his title to the copyright.
16. Anton Piller order is granted ex parte . It is not a search warrant, it only authorises an inspection of premises of
the defendant with his permission. To prevent the abuse of injunction against the interest of defendant the court has
laid down various guidelines for its issuance.
17. Mareva injunction restrains the defendant from disposing of assets which may be required to satisfy the
plaintiff’s claims.
18. John Doe or Ashok Kumar order is an injunction issued when the identity of defendants is not known.
19. Damages are of two kinds: compensatory and exemplary or punitive. The courts have started imposing punitive
damages in cases where there is a deliberate and flagrant violation of copyright by the defendant.
20. For account of profit an investigation of actual accounts of defendants is made.
21. Part III of TRIPS under the heading ‘Enforcement of IPRS’ lays down the mandate for member countries to
provide for administrative and judicial remedies
22. Section 63 creates the offences and section 63B to 66 deal with various penalties and procedures to be
followed in combating the offences.
23. Infringer is punishable with imprisonment for a term between six months to three years and with a fine between
rupees 50,000 to 2 lakh.
24. For second and subsequent conviction minimum fine is raised to rupees one lakh and imprisonment to one
year.
25. The amendment of 2012 has added two new offences to be in consonance with the WCT and WPPT : 1)
Penalty for a person who circumvents an effective technological measure and 2) Penalty for a person who
knowingly removes or alters a rights management information without authority.
1 . (1984) 2 SCC 534 [LNIND 1984 SC 51].

2 . INTA Bulletin, Vol. 60, No. 9, 1st May, 2005, also available online for INTA Bulletin members at
http://www.inta.org/anticounterfeiting/roundtable .
3 . Subs. by Act 27 of 2012, section 34 for section 53 (w.e.f. 21-6-2012).
Page 15 of 16
4 . Section 9; The Copyright Act, 1957.

5 . Section 12.
6 . Prior to 2012 the Board consisted of two or more members upto a limit of fourteen.
7 . 2002 (24) PTC 572 (Del.).
8 . 2002 (24) PTC 405 . On territorial jurisdiction under Copyright Act see also P.M. Diesels Ltd. v. Patel Field Marshall
Industries 1998 (18) PTC (Del.) (DB); Ante Indiana v. Mitulaul Lalah & Sons 2000 (20) PTC 140 (Bom.).
9 . ILR 1979 (2) Delhi 236 also see Nirese Industries Ltd. v. Manchanda Footwear 1984 IPLR 70(Delhi), Glaxo
Operations UK Ltd. v. Samrat Pharmaceuticals AIR 1984 Del. 265 [LNIND 1983 DEL 278]; Mitaso Appliances Ltd. v.
Mehta Zinabhai Bhimj Bhai 1995 PTC 294 (Del.).
10 . AIR 1958 Del. 29 .
11 . AIR 1971 Bom. 48 [LNIND 1957 BOM 52].
12 . 2003 (26) P.T.C. 294(D.B.) (Del.).
13 . Named after the case of Anton Piller K.G. v. Manufacturing Processes Ltd. [1976] RPC 719 in which the English Court
of Appeal sanctioned its use.
14 . Ibid. at 721.
15 . 2008 (37) PTC 581 .
16 . 1983 F.S.R. 127.
17 . Section 58, ICA, 1957.
18 . AIR 1983 Del. 461 [LNIND 1983 DEL 140].
19 . AIR 2003 Del. 191 [LNIND 2002 DEL 1384]. Also see Shashank Shekhar Misra v. Ajay Gupta 2011 (48) PTC 156
(Del).
20 . Bloomsbury Publishing Plc, JK Rowling v. Newsgroup Newspapers Limited [2003] EWHC 1087 Ch.
21 . ESPN Software v. Tudu Enterprises CS (OS) 384/2011. Also see Singham case CS (OS) 384/2011; Tej Television
Limited v. Rajan Mandal [2003] F.S.R 24; Satellite Singapore PTE Ltd . v. Star Cable Network & Ors [F.A.O. (OS)
211/2010].
22 . AIR 1994 Del. 227 .
23 . CS (OS) No. 808/2005 decided on 05.05.2006.
24 . 2006 (33) PTC 122 (Del.); also see Hero Honda Motors Ltd. v. Shree Assuramji Scooters 2006 (32) PTC 117 (Del.);
Time Inc. v. Lokesh Srivastava 2005 (30) PTC 3 (Del.); Microsoft Corporation v. Vijay Kaushik & Anr. 2011 (48) PTC
127 (Del).
25 . 1978 I.P.C. R. 83.
26 . AIR 1981 AP 224 .
27 . Cherian P. Joseph v . K. Prabhakaran Nair AIR 1967 Ker 234 .
28 . AIR 1985 All 275 .
29 . V.S. Sharma v. Dharma Rao AIR 1942 Mad. 124 .
30 . Supra note 1.
31 . Sumeet Machines v . Sumeet Research and Holding 1993 PTC 75 (Mad).
32 . Explanation to section 63, Copyright Act, 1957.
33 . Section 70, Ibid.
34 . Jitendra Prasad Singh v . State of Assam 2003 (26) P.T.C. 486(Gau.) at 487.
35 . Section 64 o (2) of the Copyright Act, 1957.
36 . 2012 (52) PTC 380 (Del).
37 . (2001) PTC (21) 600 (Del).
38 . 2000 (20) PTC 496 .
39 . Supra note 26 .
Page 16 of 16
End of Document
APPENDIX 1
ALKA CHAWLA
Appendix 1 The Copyright Act, 1957 1(14 of 1957)

[4th June, 1957]
An Act to amend and consolidate the law relating to copyright .
BE it enacted by Parliament in the Eighth Year of the Republic of India as follows:- Statement of Objects and
Reasons. -The existing law relating to copyright is contained in the Copyright Act, 1911 of the United Kingdom
(hereinafter referred to as the United Kingdom Act ) as modified by the Indian Copyright Act, 1914. Apart from the
fact that the United Kingdom Act does not fit in with the changed constitutional status of India, it is necessary to
enact an independent self-contained law on the subject of copyright in the light of growing public consciousness of
the rights and obligations of authors and in the light of experience gained in the working of the existing law during
the last forty years. New and advanced means of communications like broadcasting, litho-photography, etc., also
call for certain amendments in the existing law. Adequate provision has also to be made for fulfilment of
international obligations in the field of copyright which India might accept. A complete revision of law of copyright,
therefore, seemed inevitable, and the Bill attempts such a revision.
2. Though the draft Bill follows, generally, in a re-arranged form the main principles of the existing law, it has
introduced several new features which are briefly indicated below:
(1) A Copyright Office is sought to be established under the immediate control of a Registrar of Copyrights
who shall act under the superintendence and direction of the Central Government. The principal function of
the Copyright Office will be to maintain Register of Copyrights in which may be entered, at the option of the
authors, the names and addresses of authors and owners of copyright for the time being, and other
relevant particulars. Such Register will easily make available useful information to interested members of
public in regard to copyrighted works. In order to encourage registration of copyrights, provision is made
that no proceeding regarding infringement of copyright shall be instituted unless copyright is registered in
the Copyright Office. In addition to being in charge of the Copyright Office, the duties of the Registrar of
Copyrights will be to entertain and dispose of applications for compulsory licences and to inquire into
complaints of importation of infringing copies. An appeal to the Copyright Board is provided for against the
orders of the Registrar of Copyrights.
(2) Provision is made for setting up a Copyright Board which will determine the reasonableness of the rates of
fees, charges or royalties claimed by performing rights societies, consider applications for general licences
for public performances of works and will assess compensation payable under the Bill in certain
circumstances. An appeal will lie to the High Court against the decisions of the Copyright Board.
(3) The definition of "copyright" is enlarged to include the exclusive right to communicate works by radio-
diffusion.
(4) A cinematography film will have a separate copyright apart from its various components, namely, story,
music, etc.
(5) An author assigning copyright in his work is allowed the option to re-acquire the copyright after seven years
but before ten years of the assignment on the condition that he returns the amount received by him at the
time of the assignment with interest thereon.
(6) The normal term of the copyright is fixed to be the life of the author and a period of 25 years after his death
as against the existing term of the life of the author, and a period of 50 years after his death. Shorter terms
are fixed for anonymous or pseudonymous works, cinematograph films, mechanical contrivances,
photographs, etc.
Page 2 of 53
APPENDIX 1
(7) Under the existing law, the sole right to produce a translation of a work first published in India is
extinguished after ten years, unless a translation thereof is produced within that period. The Draft Bill
makes the right co-extensive with other rights arising out of copyright.
(8) Provision is made for the issue of a general or special licence for public performances of any work by
means of a radio-receiving set or a mechanical contrivance.
(9) A licence may be issued to any library to make or cause to be made one copy of any book in which
copyright subsists and which is not available for sale.
(10) Provision is made for regulating the activities of performing rights societies and also for controlling the fees,
charges or royalties to be collected by them.
(11) Certain rights akin to copyright are conferred on Broadcasting authorities in respect of programmes
broadcast by them.
(12) International copyright relations which are based on international treaties will be regulated by specific
orders to be made by the Central Government.
(13) A fair dealing with any work for the purposes of radio summary or judicial proceeding will not hereafter
constitute an infringement of copyright.
3. In preparing the Bill, the British Copyright Report, 1952, the suggestions of various Ministries of the Government
of India, the State Governments, the Indian Universities and certain interested industries and associations, who
were invited to send their comments on the subject, have been taken into consideration.
Amendment Act 23 of 1983-Statement of Objects and Reasons. -India is a member of the two International
Conventions on Copyright, namely, the Berne Convention for the Protection of Literary and Artistic Works (1948
Brussels Text) and the Universal Copyright Convention (1952). The Copyright Act, 1957, conforms to the provisions
of these two Conventions. Both these Conventions were revised at Paris in 1971. These revised Conventions
provide for certain additional facilities to enable the developing countries to grant compulsory licences for translation
and reproduction of works of foreign origin required for purposes of teaching, scholarship or research or for
purposes of systematic instructional activities; if these rights could not be obtained on freely negotiated terms under
conditions enabling their publication or ensuring their availability at prices reasonable in their context. As a
developing country, it will be in our interest to adhere to the two revised Conventions so as to avail of the benefits of
the compulsory rights. It is accordingly proposed to suitably amend the Act to conform to the provisions of the
revised Conventions and thereafter accede to the revised conventions so that India can take advantage of the
revised provisions of the two Conventions.
2. The working of the Act has also revealed certain lacunae and administrative drawbacks, especially in relation to
the protection of authors’ rights. There is also no provision in the Act at present for the publication of unpublished
works of an Indian author who is either dead or unknown or whose whereabouts are not traceable or where the
owner of the copyright cannot be located. It is proposed to make certain amendments in the Act to remove these
lacunae and practical difficulties and to make certain additional provisions pertaining to authors’ rights.
3. The Bill provides, among other things, for the following amendments to the Act to give effect to the above
proposals, namely:-
(1) To provide for compulsory licensing for the translation of a foreign work after the expiry of three years from
the publication of the work and if the translation of the work is in a language not in general use in any
developed country, after the expiry of a period of one year from such publication if such work is required for
the purposes of teaching, scholarship or research.
(2) To provide for the compulsory licensing of the reproduction of any edition of a foreign literary, scientific or
artistic work for the purposes of systematic instructional activities if, after the expiry of certain periods
(which will vary depending on the subject-matter of the work) from the date of the first publication of that
edition, the copies are not available in India at a price reasonably related to that normally charged in India
for the same or similar work.
(3) It is proposed to provide that in the case of unpublished works where the author is either dead or unknown
or the owners of the copyright cannot be traced, any person wishing to publish the material or a translation
thereof may advertise his proposal and thereafter apply to the Copyright Board for permission which, while
granting such permission, would fix an appropriate royalty. The royalty could be deposited in the Public
Account of India or in any other suitable place for a specific period so that in the event of the owner of the
Page 3 of 53
APPENDIX 1
copyright becoming known, he could claim it. It is also proposed that in the case of unpublished Indian
works, where the original author is dead and the publication of the work is desirable in the national interest,
a reasonable period would be given to his legal representatives to make necessary arrangements for the
publication of the unpublished material. In case they fail to do so, the Copyright Board is empowered to
give permission to publish the work on payment of royalty.
(4) It is proposed to provide for the manner of assignments of copyright from authors to publishers and to
empower the Copyright Board to decide disputes arising out of such assignments which may extend to
permitting the author to withdraw from the assignment.
(5) It is proposed to prescribe the term of copyright in works owned by bodies corporate as fifty years from the
beginning of the calendar year next following the year in which the work is first published as in the case of
Government works.
(6) Broadcasting authorities are also being permitted to translate foreign works broadcasting for the purpose of
systematic instructional activities.
(7) To provide for copyright in lectures, addresses, etc., delivered in public and for the publication of the
entries made in Copyright Register.
4. The Bill seeks to achieve the above objects.
Amendment Act 65 of 1984-Statement of Objects and Reasons. -Piracy has become a global problem due to the
rapid advances in technology. It has assumed alarming proportions all over the world and all the countries are trying
to meet the challenge by taking stringent legislative and enforcement measures. The problem of piracy and the
necessity for taking sufficient anti-piracy measures were also voiced by members of Parliament at the time of the
consideration of the Bill to amend the Copyright Act, 1957, last year.
2. Mainly there are three types of piracy, namely, piracy of the printed word, piracy of sound recordings and piracy
of cinematograph films. The object of the pirate in all such cases is to make quick money and avoid payment of
legitimate taxes and royalties. In respect of books, it is estimated that four hundred to five hundred titles are pirated
every year in India and on each of the pirated titles, the loss to the Government in the form of tax evasion amounts
approximately to Rs. 11,000. Apart from books, recorded music and video cassettes of films and T.V. programmes
are reproduced, distributed and sold on a massive scale in many parts of the world without any remuneration to the
authors, artists, publishers and producers concerned. The emergence of new techniques of recordings, fixation and
reproduction of audio programmes, combined with the advent of video technology have greatly helped the pirates. It
is estimated that the losses to the film producers and other owners of copyright amount of several crores of rupees.
The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition, because of the recent
video boom in the country, there are reports that uncertified video films are being exhibited on a large scale. A large
number of video parlours have also sprung up all over the country and they exhibit such films recorded on video
tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the
Copyright Act, 1957, suitably to combat effectively the piracy that is prevalent in the country.
3. The Bill provides, among other things, for the following amendments to the Act, namely:-
(i) to increase the punishment provided for the infringement of the copyright, namely, imprisonment of three
years, with a minimum punishment of imprisonment of six months, and a fine up to Rs. 2 lakhs, with a
minimum of Rs. 50,000;
(ii) to provide for enhanced punishments in the case of second and subsequent convictions;
(iii) to provide for the declaration of the offence of infringement of copyright as an economic offence so that the
period of limitation provided for in the Code of Criminal Procedure, 1973, for offences will not be applicable
to this offence;
(iv) to specifically make the provisions of the Act applicable to video films and computer programmes;
(v) to require the producers of records and video films to display certain information in the record, video films
and containers thereof.
Amendment Act 13 of 1992-Statement of Objects and Reasons. -The term of copyright under the Copyright Act,
1957 is up to the end of the calendar year in which fifty years are completed. This term starts from the year in which
the author dies in the case of literary, dramatic, musical and artistic works (other than photographs) published within
the life-time of the author, but starts from the year of publication in most other cases.
Page 4 of 53
APPENDIX 1
2. Gurudev Rabindranath Tagore died in the year 1941 and copyright in his published works, which stood vested in
Visva Bharati, was to expire on 31st December, 1991. There had been numerous demands for according extended
protection to his works in view of their national importance. While it was not considered feasible and appropriate to
extend the term of copyright in respect of one author alone, the Government reviewed the whole question of what
should be the appropriate term of copyright and decided to extend the term of copyright generally in all works
protected by the Copyright Act, 1957 from fifty to sixty years. This was, however, not to apply to works which had
already entered the public domain before 31st December, 1991.
3. The Copyright (Amendment) Ordinance, 1991 was, therefore, promulgated by the President on 28th December,
1991.
4. The Bill seeks to replace the said Ordinance and to achieve the aforesaid objects.
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement.-

(1) This Act may be called THE COPYRIGHT ACT, 1957.
(2) It extends to the whole of India.
(3) It shall come into force on such date 2 as the Central Government may, by notification in the Official Gazette,
appoint.
2. Interpretation.-
In this Act, unless the context otherwise requires,-
(a) "adaptation" means,-
(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; 3[* * *]
(iv) in relation to a musical work, any arrangement or transcription of the work; 4[and]
4 [(v) in relation to any work, any use of such work involving its re-arrangement or alteration;]
(b) 5["work of architecture"] means any building or structure having an artistic character or design, or any
model for such building or structure;
(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) an 5 [work of architecture]; and
(iii) any other work of artistic craftsmanship;
(d) "author" means,-
(i) in relation to a literary or dramatic work, the author of the work;
Page 5 of 53
APPENDIX 1
(ii) in relation to a musical work, the composer;

(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
6 [(v) in relation to a cinematograph film or sound recording, the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person
who causes the work to be created;]
7[(dd) "broadcast" means 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;]

(e) calendar year" means the year commencing on the 1st day of January;
8[(f) "cinematograph film" means any work of visual recording 9[***] 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;]
10[(fa) "commercial rental" does not include the rental, lease or lending of a lawfully acquired copy of a
computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a
non-profit library or non-profit educational institution.
Explanation. -For the purposes of this clause, a "non-profit library or non-profit educational institution"
means a library or educational institution which receives grants from the Government or exempted from
payment of tax under the Income-tax Act, 1961.]
11[(ff) "communication to the public" means 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.
Explanation. -For the purposes of this clause, 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];
(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;
(ffb) "computer" includes any electronic or similar device having information processing capabilities;
(ffc) "computer programme" means 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;
(ffd) "copyright society" means a society registered under sub-section (3) of section 33 ;]
(g) "delivery ", in relation to a lecture, includes delivery by means of any mechanical instrument or by
12[broadcast];
(h) "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;
13[(hh) "duplicating equipment" means any mechanical contrivance or device used or intended to be used
for making copies of any work;]
(i) "engravings" include etchings, lithographs, wood-cuts, prints and other similar works, not being
photographs;
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APPENDIX 1
(ii) "exclusive licence" means a licence which confers on the licensee or on the licensee and persons
authorised by him, to the exclusion of all other persons (including the owner of the copyright), any right
comprised in the copyright in a work, and "exclusive licensee" shall be construed accordingly;
(iii) "Government work" means 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;
14[(l) "Indian work" means a literary, dramatic or musical work,-
(i) the author of which is a citizen of India; or
(ii) which is first published in India; or
(iii) the author of which, in the case of an unpublished work, is, at the time of the making of the work, a
citizen of India;]
15[(m) "infringing copy" means,-
(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the
form of a cinematographic film;
(ii) in relation to a cinematograph film, a copy of the film made on any medium by any means;
(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by
any means;
(iv) in relation to a programme or performance in which such a broadcast reproduction right or a
performer’s right subsists under the provisions of this Act, the sound recording or a cinematographic
film of such programme or performance,
if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;]
(n) "lecture" includes address, speech and sermon;
16[(o) "literary work" includes computer programmes, tables and compilations including computer
17[databases];]
(p) "musical work" means a work consisting of music and includes any graphical notation of such work but
does not include any words or any action intended to be sung, spoken or performed with the music;
(q) "performance", in relation to performer’s right, means any visual or acoustic presentation made live by one
or more performers;]
17 [(qq) "performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer,
a person delivering a lecture or any other person who makes a performance:]
18[ Provided that in a cinematograph film a person whose performance is casual or incidental in nature and,
in the normal course of the practice of the industry, is not acknowledged anywhere including in the credits
of the film shall not be treated as a performer except for the purpose of clause (b) of section 38B;]
19[* * *]
(s) "photograph" includes photo-lithograph and any work produced by any process analogous to photography
but does not include any part of a cinematograph film;
(t) "plate" includes any stereotype or other plate, stone, block, mould, matrix, transfer, negative 20[, duplicating
equipment] or other device used or intended to be used for printing or reproducing copies of any work, and
any matrix or other appliance by which 21[sound recording] for the acoustic presentation of the work are or
are intended to be made;
(u) "prescribed" means prescribed by rules made under this Act;
22[(uu) "producer", in relation to a cinematograph film or sound recording, means a person who takes the
initiative and responsibility for making the work;]
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APPENDIX 1
23[* * *]
24[* * *]
25[(x) "reprography" means the making of copies of a work, by photocopying or similar means;
26[(xa) "Rights Management Information" means,-
(a) the title or other information identifying the work or performance;
(b) the name of the author or performer;
(c) the name and address of the owner of rights;
(d) terms and conditions regarding the use of the rights; and
(e) any number or code that represents the information referred to in sub-clauses (a) to (d),
but does not include any device or procedure intended to identify the user;]
(xx) "sound recording" means a recording of sounds from which such sounds may be produced regardless of
the medium on which such recording is made or the method by which the sounds are produced;]
26 [(xxa) "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;]
(y) "work" means any of the following works, namely:-
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a 27[sound recording];
(z) "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;
(z-a) "work of sculpture" includes casts and models.
28[3. Meaning of publication.-

For the purposes of this Act, "publication" means making a work available to the public by issue of copies or by
communicating the work to the public.]
4. When work not deemed to be published or performed in public.-

Except in relation to infringement of copyright, a work shall not be deemed to be published or performed in public, if
published or performed in public, without the licence of the owner of the copyright.
5. When work deemed to be first published in India.-

For the purposes of this Act, a work published in India shall be deemed to be first published in India,
notwithstanding that it has been published simultaneously in some other country, unless such other country
provides a shorter term of copyright for such work; and a work shall be deemed to be published simultaneously in
India and in another country if the time between the publication in India and the publication in such other country
Page 8 of 53
APPENDIX 1
does not exceed thirty days or such other period as the Central Government may, in relation to any specified
country, determine.
29[6. Certain disputes to be decided by Copyright Board.-

If any question arises,-
(a) whether a work has been published or as to the date on which a work was published for the purposes of
Chapter V, or
(b) whether the term of copyright for any work is shorter in any other country than that provided in respect of
that work under this Act,
it shall be referred to the Copyright Board constituted under section 11 whose decision thereon shall be final:
Provided that if in the opinion of the Copyright Board, the issue of copies or communication to the public referred to
in section 3 was of an insignificant nature, it shall not be deemed to be publication for the purposes of that section.]
7. Nationality of author where the making of unpublished work is extended

over considerable period.-
Where, in the case of an unpublished work, the making of the work is extended over a considerable period, the
author of the work shall, for the purposes of this Act, be deemed to be a citizen of, or domiciled in, that country of
which he was a citizen or wherein he was domiciled during any substantial part of that period.
8. Domicile of corporations.-
For the purposes of this Act, a body corporate shall be deemed to be domiciled in India if it is incorporated under
any law in force in India.
CHAPTER II
COPYRIGHT OFFICE AND COPYRIGHT BOARD
9. Copyright Office.-
(1) There shall be established for the purposes of this Act an office to be called the Copyright Office.
(2) The Copyright Office shall be under the immediate control of the Registrar of Copyrights who shall act under the
superintendence and direction of the Central Government.
(3) There shall be a seal for the Copyright Office.
10. Registrar and Deputy Registrars of Copyrights.-

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APPENDIX 1
(1) The Central Government shall appoint a Registrar of Copyrights and may appoint one or more Deputy
Registrars of Copyrights.
(2) A Deputy Registrar of Copyrights shall discharge under the superintendence and direction of the Registrar of
Copyrights such functions of the Registrar under this Act as the Registrar may, from time to time, assign to him; and
any reference in this Act to the Registrar of Copyrights shall include a reference to a Deputy Registrar of Copyrights
when so discharging any such functions.
11. Copyright Board.-

(1) As soon as may be after the commencement of this Act, the Central Government shall constitute a Board to be
called the Copyright Board which shall consist of a Chairman and 30[two other members].
31[(2)The salaries and allowances payable to and the other terms and conditions of service of the Chairman and
other members of the Copyright Board shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman or
any other member shall be varied to his disadvantage after appointment.]
(3) The Chairman of the Copyright Board shall be a person who is, or has been, a Judge of 32[* * *] a High Court or
is qualified for appointment as a Judge of a High Court.
33[(4) The Central Government may, after consultation with the Chairman of the Copyright Board, appoint a
Secretary to the Copyright Board and such other officers and employees as may be considered necessary for the
efficient discharge of the functions of the Copyright Board.]
12. Powers and procedure of Copyright Board.-

(1) The Copyright Board shall, subject to any rules that may be made under this Act, have power to regulate its own
procedure, including the fixing of places and times of its sittings:
Provided that the Copyright Board shall ordinarily hear any proceeding instituted before it under this Act within the
zone in which, at the time of the institution of the proceeding, the person instituting the proceeding actually and
voluntarily resides or carries on business or personally works for gain.
Explanation. -In this sub-section "zone" means a zone specified in section 15 of the States Reorganisation Act,
1956 (37 of 1956).
(2) The Copyright Board may exercise and discharge its powers and functions through Benches constituted by the
Chairman of the Copyright Board from amongst its 34[members]:
35[
Provided that, if the Chairman is of opinion that any matter of importance is required to be heard by a larger
Bench, he may refer the matter to a special Bench consisting of five members.]
(3) If there is a difference of opinion among the members of the Copyright Board or any Bench thereof in respect of
any matter coming before it for decision under this Act, the opinion of the majority shall prevail:
36[ Provided that where there is no such majority, the opinion of the Chairman shall prevail.]
(4) 37[The Chairman] may authorise any of its members to exercise any of the powers conferred on it by section 74
and any order made or act done in exercise of those powers by the member so authorised shall be deemed to be
the order or act, as the case may be, of the Board.
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APPENDIX 1
(5) No member of the Copyright Board shall take part in any proceedings before the Board in respect of any matter
in which he has a personal interest.
(6) No act done or proceeding taken by the Copyright Board under this Act shall be questioned on the ground
merely of the existence of any vacancy in, or defect in the constitution of, the Board.
(7) The Copyright Board shall be deemed to be a Civil Court for the purposes of 38[sections 345 and 346 of the
Code of Criminal Procedure, 1973 (2 of 1974)], and all proceedings before the Board shall be deemed to be judicial
proceedings within the meaning of sections 193 and 228 Indian Penal Code (45 of 1860).
CHAPTER III
COPYRIGHT
13. 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) 39[sound recording].
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of
section 40 or section 41, apply, unless,-
(i) 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;
(ii) in the case of an unpublished work other than an 40[work of architecture],the author is at the date of the
making of the work a citizen of India or domiciled in India; and
(iii) in the case of an 40 [work of architecture], the work is located in India.
Explanation .-In the case of a work of joint authorship, the conditions conferring copyright specified in
this sub-section shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist-

(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other
work;
(b) in any 40a [sound recording] made in respect of a literary, dramatic or musical work, if in making the 40a
[sound recording], copyright in such work has been infringed.

(c) The copyright in a cinematograph film or a 40a[sound recording] shall 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 39 [sound
recording] is made.
(d) In the case of an 40b[work of architecture], copyright shall subsist only in the artistic character and design
and shall not extend to processes or methods of construction.
41[14. Meaning of copyright.-

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APPENDIX 1
(1) For the purposes of this Act, "copyright" means 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:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme,-
(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);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
42[(ii) 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 programmes where
the programme itself is not the essential object of the rental;]
(c) in the case of an artistic work,-

43[(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;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-
clauses (i) to (iv);
(d) in the case of a cinematograph film,-
44[(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;]
(iii) to communicate the film to the public;
(e) in the case of a sound recording,-
(i) to make any other sound recording embodying it 45[including storing of it in any medium by electronic
or other means];
46[(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound,
recording];
Page 12 of 53
APPENDIX 1
(iii) to communicate the sound recording to the public.
Explanation .-For the purposes of this section, a copy which has been sold once shall be deemed to be a copy
already in circulation].
15. Special provision regarding copyright in designs registered or capable of

being registered under the 47[* * *] 48[Designs Act, 2000 (16 of 2000)].-
(1) Copyright shall not subsist under this Act in any design which is registered under the 47 [* * *] 48 [Designs Act,
2000 (16 of 2000)].
(2) Copyright in any design, which is capable of being registered under the 47 [* * *] 48 [Designs Act, 2000 (16 of
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.
16. No copyright except as provided in this Act.-

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.
CHAPTER IV
Ownership of Copyright and the Rights of the Owner
17. First owner of copyright.-

Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
Provided that-
(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 insofar 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;
(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 therein;
49[(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
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APPENDIX 1
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;
49 [(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.
Explanation .-For the purposes of this clause and section 28 -A, "public undertaking", means-
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or
(iii) a body corporate established by or under any Central, Provincial or State Act ;]
(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:
50[ Provided that in case of any work incorporated in a cinematograph work, nothing contained in
clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section
(1) of section 13 ];
18. Assignment of copyright.-

(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may
assign to any person the copyright either wholly or partially and either generally or subject to limitations and either
for the whole term of the copyright or any part thereof:
Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only
when the work comes into existence:
51[Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work
which did not exist or was not in commercial use at the time when the assignment was made, unless the
assignment specifically referred to such medium or mode of exploitation of the work:
Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or
waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilisation of
such work in any form other than for the communication to the public of the work along with the cinematograph film
in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and
any agreement to contrary shall be void:
Provided also that the author of the literary or musical work included in the sound recording but not forming part of
any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with
the assignee of copyright for any utilisation of such work except to the legal heirs of the authors or to a collecting
society for collection and distribution and any assignment to the contrary shall be void].
(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as
respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the
purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.
(3) In this section, the expression "assignee" as respects the assignment of the copyright in any future work
includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.
Page 14 of 53
APPENDIX 1
19. Mode of assignment.-

52[(1)]No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by
his duly authorised agent.
53[ 54[(2)
The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and
the duration and territorial extent of such assignment.
(3) The assignment of copyright in any work shall also specify the amount of 55[royalty and any other consideration
payable] to the author or his legal heirs during the currency of the assignment and the assignment shall be subject
to revision, extension or termination on terms mutually agreed upon by the parties.
(4) Where the assignee does not exercise the rights assigned to him under any of the other sub-sections of this
section within a period of 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.
(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be
applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.]
56[(8)
The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to
a copyright society in which the author of the work is a member shall be void.
(9) No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the
work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form
other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
(10) No assignment of the copyright in any work to make a sound recording which does not form part of any
cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and
consideration payable for any utilisation of such work in any form].
57[19-A. Disputes with respect to assignment of copyright.-

(1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable
to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor
and after holding such inquiry as it may deem necessary, revoke such assignment.
(2) If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a
complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it
may deem fit including an order for the recovery of any royalty payable:
Provided that the Copyright Board shall not pass any order under this sub-section to revoke the assignment unless
it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author:
58[Providedfurther that, pending the disposal of an application for revocation of assignment under this sub-section,
the Copyright Board may pass such order, as it deems fit regarding implementation of the terms and conditions of
assignment including any consideration to be paid for the enjoyment of the rights assigned:
Provided also that] no order of revocation of assignment under this sub-section, shall be made within a period of
five years from the date of such assignment].
59[(3) Every complaint received under sub-section (2) shall be dealt with by the Copyright Board as far as possible
Page 15 of 53
APPENDIX 1
and efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt
of the complaint and any delay in compliance of the same, the Copyright Board shall record the reasons thereof].
20. 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
insofar as the testator was the owner of the copyright immediately before his death.
Explanation .-In this section, the expression "manuscript" means the original document embodying the work,
whether written by hand or not.
21. Right of author to relinquish copyright.-

(1) The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving
notice in the prescribed form to 60[the Registrar of Copyrights or by way of public notice] and thereupon such rights
shall, subject to the provisions of sub-section (3), cease to exist from the date of the notice.
(2) On receipt of a notice under sub-section (1), the Registrar of Copyrights shall cause it to be published in the
Official Gazette and in such other manner as he may deem fit.
61[(2A) The Registrar of Copyrights shall, within fourteen days from the publication of the notice in the Official
Gazette, post the notice on the official website of the Copyright Office so as to remain in the public domain for a
period of not less than three years].
(3) The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights
subsisting in favour of any person on the date of the notice referred to in sub-section (1).
Chapter V
Term of Copyright
22. Term of copyright in published literary, dramatic, musical and artistic

works.-
Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or an artistic work
62[* * *] published within the lifetime of the author until 63[sixty years] from the beginning of the calendar year next
following the year in which the author dies.
Explanation .-In this section the reference to the author shall, in the case of a work of joint authorship, be construed
as a reference to the author who dies last.
23. Term of copyright in anonymous and pseudonymous works.-

(1) In the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published
anonymously or pseudonymously, copyright shall subsist until 63 [sixty years] from the beginning of the calendar
year next following the year in which the work is first published:
Page 16 of 53
APPENDIX 1
Provided that where the identity of the author is disclosed before the expiry of the said period, copyright shall
subsist until 63 [sixty years] from the beginning of the calendar year next following the year in which the author dies.
(2) In sub-section (1), references to the author shall, in the case of an anonymous work of joint authorship, be
construed,-
(a) where the identity of one of the author is disclosed, as references to that author;
(b) where the identity of more authors than one is disclosed, as references to the author who dies last from amongst
such authors.
(3) In sub-section (1), references to the author shall, in the case of a pseudonymous work of joint authorship, be
construed,-
(a) where the names of one of more (but not all) of the authors are pseudonymous and his or their identity is not
disclosed, as references to the author whose name is not a pseudonym, or if the names of two or more of the
authors are not pseudonyms, as references to such of those authors who dies last;
(b) where the names of one or more (but not all) of the authors are pseudonyms and the identity of one or more of
them is disclosed, as references to the author who dies last from amongst the authors whose names are not
pseudonyms and the authors whose names are pseudonyms and are disclosed; and
(c) where the names of all the authors are pseudonyms and the identity of one of them is disclosed, as references
to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed, as references
to such of those authors who dies last.
Explanation .-For the purposes of this section, the identity of an author shall be deemed to have been disclosed, if
either the identity of the author is disclosed publicly by both the author and the publisher or is otherwise established
to the satisfaction of the Copyright Board by that author.
24. Term of copyright in posthumous work.-

(1) In the case of a literary, dramatic or musical work or an engraving, in which copyright subsists at the date of the
death of the author or, in the case of any such work of joint authorship, at or immediately before the date of the
death of the author who dies last, but which, or any adaptation of which, has not been published before that date,
copyright shall subsist until 64[sixty years] from the beginning of the calendar year next following the year in which
the work is first published or, where an adaptation of the work is published in any earlier year, from the beginning of
the calendar year next following that year.
(2) For the purposes of this section a literary, dramatic or musical work or an adaptation of any such work shall be
deemed to have been published, if it has been performed in public or if any 65[sound recording] made in respect of
the work have been sold to the public or have been offered for sale to the public.
66[25. Term of Copyright in photographs.-* * *]
26. Term of copyright in cinematograph films.-

In the case of a cinematograph film, copyright shall subsist until 64 [sixty years], from the beginning of the calendar
year next following the year in which the film is published.
Page 17 of 53
APPENDIX 1
27. Term of copyright in 65 [sound recording].-

In the case of a 65 [sound recording], copyright shall subsist until 64 [sixty years] from the beginning of the calendar
year next following the year in which the 65 [sound recording] is published.
28. Term of copyright in Government works.-

In the case of a Government work, where Government is the first owner of the copyright therein, copyright shall
subsist until 64 [sixty years] from the beginning of the calendar year next following the year in which the work is first
published.
67[28-A. Term of copyright in works of public undertakings.-

In the case of a work, where a public undertaking is the first owner of the copyright therein, copyright shall subsist
until 64 [sixty years] from the beginning of the calendar year next following the year in which the work is first
published.]
29. Term of copyright in works of international organisations.-

In the case of a work of an international organisation to which the provisions of section 41 apply, copyright shall
subsist until 64 [sixty years] from the beginning of the calendar year next following the year in which the work is first
published.
CHAPTER VI
Licences
30. Licences by owners of copyright.-

The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may
grant any interest in the right by licence in 68[writing by him] or by his duly authorised agent:
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when
the work comes into existence.
Explanation .-Where a person to whom a licence relating to copyright in any future work is granted under this
section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to
the contrary in the licence, be entitled to the benefit of the licence.
69[30-A. Application of 70[section 19].-

The provisions of 71[section 19] shall, with any necessary adaptations and modifications, apply in relation to a
licence under section 30 as they apply in relation to assignment of copyright in a work.]
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APPENDIX 1
31. Compulsory licence in works withheld from public.-

(1) If at any time during the term of copyright in 72[any work] which has been published or performed in public, a
complaint is made to the Copyright Board that the owner of copyright in the work-
(a) has refused to republish or allow the republication of the work or has refused to allow the performance in public
of the work, and by reason of such refusal the work is withheld from the public; or
(b) has refused to allow communication to the public by 73[broadcast] of such work or in the case of a 74[sound
recording] the work recorded in such 74 [sound recording] on terms which the complainant considers reasonable,
the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard
and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are
not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work,
perform the work in public or communicate the work to the public by 73 [broadcast], as the case may be, subject to
payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the
Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the 75[licence to such person
or persons who, in the opinion of the Copyright Board, is or are qualified to do so] in accordance with the directions
of the Copyright Board, on payment of such fee as may be prescribed.
76[* * *]
77[* * *]
78[31-A. Compulsory licence in unpublished 79[or published work].-

80[(1)Where, in the case of any unpublished work or any work published or communicated to the public and the
work is withheld from the public in India, the author is dead or unknown or cannot be traced, or the owner of the
copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish or
communicate to the public such work or a translation thereof in any language].
(2) Before making an application under sub-section (1), the applicant shall publish his proposal in one issue of a
daily newspaper in the English language having circulation in the major part of the country and where the
application is for the publication of a translation in any language, also in one issue of any daily newspaper in that
language.
(3) Every such application shall be made in such form as may be prescribed and shall be accompanied with a copy
of the advertisement issued under sub-section (2) and such fee as may be prescribed.
(4) Where an application is made to the Copyright Board under this section, it may, after holding such inquiry as
may be prescribed, direct the Registrar of Copyrights to grant to the applicant a licence to publish the work or a
translation thereof in the language mentioned in the application subject to the payment of such royalty and subject
to such other terms and conditions as the Copyright Board may determine, and thereupon the Registrar of
Copyrights shall grant the licence to the applicant in accordance with the direction of the Copyright Board.
(5) Where a licence is granted under this section, the Registrar of Copyrights may, by order, direct the applicant to
deposit the amount of the royalty determined by the Copyright Board in the public account of India or in any other
account specified by the Copyright Board so as to enable the owner of the copyright or, as the case may be, his
heirs, executors or the legal representatives to claim such royalty at any time.
(6) Without prejudice to the foregoing provisions of this section, in the case of a work referred to in sub-section (1),
if the original author is dead, the Central Government may, if it considers that the publication of the work is
desirable in the national interest, require the heirs, executors or legal representatives of the author to publish such
work within such period as may be specified by it.
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APPENDIX 1
(7) Where any work is not published within the period specified by the Central Government under sub-section (6),
the Copyright Board may, on an application made by any person for permission to publish the work and after
hearing the parties concerned, permit such publication on payment of such royalty as the Copyright Board may, in
the circumstances of such case, determine in the prescribed manner.]
81[31B. Compulsory licence for benefit of disabled.-

(1) Any person working for the benefit of persons with disability on a profit basis or for business may apply to the
Copyright Board, in such form and manner and accompanied by such fee as may be prescribed, for a compulsory
licence to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause
(zb) of sub-section (1) of section 52 does not apply and the Copyright Board shall dispose of such application as
expeditiously as possible and endeavour shall be made to dispose of such application within a period of two months
from the date of receipt of the application.
(2) The Copyright Board may, on receipt of an application under sub-section (/), inquire, or direct such inquiry as it
considers necessary to establish the credentials of the applicant and satisfy itself that the application has been
made in good faith.
(3) If the Copyright Board is satisfied, after giving to the owners of rights in the work a reasonable opportunity of
being heard and after holding such inquiry as it may deem necessary, that a compulsory licence needs to be issued
to make the work available to the disabled, it may direct the Registrar of Copyrights to grant to the applicant such a
licence to publish the work.
(4) Every compulsory licence issued under this section shall specify the means and format of publication, the period
during which the compulsory licence may be exercised and, in the case of issue of copies, the number of copies
that may be issued including the rate or royalty:
Provided that where the Copyright Board has issued such a compulsory licence it may, on a further application and
after giving reasonable opportunity to the owners of rights, extend the period of such compulsory licence and allow
the issue of more copies as it may deem fit.
31C. Statutory licence for cover versions.-

(1) Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or
musical work, where sound recordings of that work have been made by or with the licence or consent of the owner
of the right in the work, may do so subject to the provisions of this section:
Provided that such sound recordings shall be in the same medium as the last recording, unless the medium of the
last recording is no longer in current commercial use.
(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in
the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound
recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies
to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label
which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or
depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which
such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under
this section.
(3) The person making such sound recordings shall not make any alteration in the literary or musical work which
Page 20 of 53
APPENDIX 1
has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for
the purpose of making the sound recordings:
Provided that such sound recordings shall not be made until the expiration of five calendar years after the end of
the year in which the first sound recordings of the work was made.
(4) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each
work during each calendar year in which copies of it are made:
Provided that the Copyright Board may, by general order, fix a lower minimum in respect of works in a particular
language or dialect having regard to the potential circulation of such works.
(5) The person making such sound recordings shall maintain such registers and books of account in respect
thereof, including full details of existing stock as may be prescribed and shall allow the owner of rights or his duly
authorised agent or representative to inspect all records and books of account relating to such sound recording:
Provided that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not
been paid in full for any sound recordings purporting to be made in pursuance of this section, the Copyright Board
is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the
sound recording to cease from making further copies and, after holding such inquiry as it considers necessary,
make such further order as it may deem fit, including an order for payment of royalty.
Explanation-For the purposes of this section "cover version" means a sound recording made in accordance with this
section.
31D. Statutory licence for broadcasting of literary and musical works and
sound recording.-
(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of
performance of a literary or musical work and sound recording which has already been published may do so subject
to the provisions of this section.
(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to
broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of
rights in each work royalties in the manner and at the rate fixed by the Copyright Board.
(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the Copyright
Board shall fix separate rates for radio broadcasting and television broadcasting.
(4) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board may require the
broadcasting organisation to pay an advance to the owners of rights.
(5) The names of the authors and the principal performers of the work shall, except in case of the broadcasting
organisation communicating such work by way of performance, be announced with the broadcast.
(6) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of
broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of
the owners of rights.
(7) The broadcasting organisation shall-
(a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and
(b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of
account relating to such broadcast,
in such manner as may be prescribed,

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APPENDIX 1
(8) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the
commencement of the Copyright (Amendment) Act, 2012].
32. Licence to produce and publish translations.-

(1) Any person may apply to the Copyright Board for a licence to produce and publish a translation of a literary or
dramatic work in any language 82[after a period of seven years from the first publication of the work].
83[(1-A) Notwithstanding anything contained in sub-section (1), any person may apply to the Copyright Board for a
licence to produce and publish a translation, in printed or analogous forms of reproduction, of a literary or dramatic
work, other than an Indian work, in any language in general use in India after a period of three years from the first
publication of such work, if such translation is required for the purposes of teaching, scholarship or research:
Provided that where such translation is in a language not in general use in any developed country, such application
may be made after a period of one year from such publication.]
(2) Every 84[application under this section] shall be made in such form as may be prescribed and shall state the
proposed retail price of a copy of the translation of the work.
(3) Every applicant for a licence under this section shall, alongwith his application, deposit with the Registrar of
Copyrights such fee as may be prescribed.
may be prescribed, grant to the applicant a licence, not being an exclusive licence, to produce and publish a
translation of the work in the language mentioned in 85[the application-
(i) subject to the condition that the applicant shall pay to the owner of the copyright in the work royalties in
respect of copies of the translation of the work sold to the public, calculated at such rate as the Copyright
Board may, in the circumstances of each case, determine in the prescribed manner; and
(ii) where such licence is granted on an application under sub-section (1-A), subject also to the condition that
the licence shall not extend to the export of copies of the translation of the work outside India and every
copy of such translation shall contain a notice in the language of such translation that the copy is available
for distribution only in India:
Provided that nothing in clause (ii) shall apply to the export by Government or any authority under the Government
of copies of such translation in a language other than English, French or Spanish to any country if-
(1) such copies are sent to citizens of India residing outside India or to any association of such citizens outside
India; or
(2) such copies are meant to be used for purposes of teaching, scholarship or research and not for any
commercial purpose; and
(3) in either case, the permission for such export has been given by the Government of that country:]
86[ Provided further that no licence under this section] shall be granted, unless-
(a) a translation of the work in the language mentioned in the application has not been published by the owner
of the copyright in the work or any person authorised by him, 87[within seven years or three years or one
year, as the case may be, of the first publication of the work], or if a translation has been so published, it
has been out of print;
(b) the applicant has proved to the satisfaction of the Copyright Board that he had requested and had been
denied authorisation by the owner of the copyright to produce and publish such translation, or that 88[he
was, after due diligence on his part, unable to find] the owner of the copyright;
(c) where the applicant was unable to find the owner of the copyright, he had sent a copy of his request for
89[such authorisation by registered air mail post to the publisher whose name appears from the work, and
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APPENDIX 1
in the case of an application for a licence under sub-section (1)], not less than two months before 90[such
application];
91[(cc)a period of six months in the case of an application under sub-section (1-A) (not being an application under
the proviso thereto), or nine months in the case of an application under the proviso to that sub-section, has elapsed
from the date of making the request under clause (b) of this proviso, or where a copy of the request has been sent
under clause (c) of this proviso, from the date of sending of such copy, and the translation of the work in the
language mentioned in the application has not been published by the owner of the copyright in the work or any
person authorised by him within the said period of six months or nine months, as the case may be;
(ccc) in the case of any application made under sub-section (1-A),-
(i) the name of the author and the title of the particular edition of the work proposed to be translated are printed on
all the copies of the translation;
(ii) if the work is composed mainly of illustrations, the provisions of section 32 -A are also complied with;]
(d) the Copyright Board is satisfied that the applicant is competent to produce and publish a correct translation of
the work and possesses the means to pay to the owner of the copyright the royalties payable to him under this
section;
(e) the author has not withdrawn from circulation copies of the work; and
(f) an opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.
92[(5) Any broadcasting authority may apply to the Copyright Board for a licence to produce and publish the
translation of-
(a) a work referred to in sub-section (1-A) and published in printed or analogous forms of reproduction; or
(b) any text incorporated in audio-visual fixations prepared and published solely for the purpose of systematic
instructional activities,
for broadcasting such translation for the purposes of teaching or for the dissemination of the results of specialised,
technical or scientific research to the experts in any particular field.
(6) The provisions of sub-sections (2) to (4) insofar as they are relatable to an application under sub-section (1-A),
shall, with the necessary modifications, apply to the grant of a licence under sub-section (5) and such licence shall
not also be granted unless-
(a) the translation is made from a work lawfully acquired;
(b) the broadcast is made through the medium of sound and visual recordings;
(c) such recording has been lawfully and exclusively made for the purpose of broadcasting in India by the
applicant or by any other broadcasting agency; and
(d) the translation and the broadcasting of such translation are not used for any commercial purposes.
Explanation .-For the purposes of this section,-
(a) "developed country" means a country which is not a developing country;
(b)"developing country" means a country which is for the time being regarded as such in conformity with the
practice of the General Assembly of THE UNITED NATIONS ;
(c)"purposes of research" does not include purposes of industrial research, or purposes of research by bodies
corporate (not being bodies corporate owned or controlled by Government) or other associations or body of persons
for commercial purposes;
(d)"purposes of teaching, research or scholarship" includes-

Page 23 of 53
APPENDIX 1
(i) purposes of instructional activity at all levels in educational institutions, including Schools, Colleges, Universities
and tutorial institutions; and
(ii) purposes of all other types of organised educational activity.]
93[32-A. Licence to reproduce and publish works for certain purposes.-

(1) Where, after the expiration of the relevant period from the date of the first publication of an edition of a literary,
scientific or artistic work,-
(a) the copies of such edition are not made available in India; or
(b) such copies have not been put on sale in India for a period of six months,
to the general public, or in connection with systematic instructional activities at a price reasonably related to that
normally charged in India for comparable works by the owner of the right of reproduction or by any person
authorised by him in this behalf, any person may apply to the Copyright Board for a licence to reproduce and
publish such work in printed or analogous forms of reproduction at the price at which such edition is sold or at a
lower price for the purposes of systematic instructional activities.
(2) Every such application shall be made in such form as may be prescribed and shall state the proposed retail
price of a copy of the work to be reproduced.
(3) Every applicant for a licence under this section shall, alongwith his application, deposit with the Registrar of
Copyrights such fee as may be prescribed.
may be prescribed, grant to the applicant a licence, not being an exclusive licence, to produce and publish a
reproduction of the work mentioned in the application subject to the conditions that,-
(i) the applicant shall pay to the owner of the copyright in the work royalties in respect of copies of the
reproduction of the work sold to the public, calculated at such rate as the Copyright Board may, in the
circumstances of each case, determine in the prescribed manner;
(ii) a licence granted under this section shall not extend to the export of copies of the reproduction of the work
outside India and every copy of such reproduction shall contain a notice that the copy is available for
distribution only in India:
Provided that no such licence shall be granted unless-

(a) the applicant has proved to the satisfaction of the Copyright Board that he had requested and had been
denied authorisation by the owner of the copyright in the work to reproduce and publish such work or that
he was, after due diligence on his part, unable to find such owner;
(b) where the applicant was unable to find the owner of the copyright, he had sent a copy of his request for
such authorisation by registered airmail post to the publisher whose name appears from the work not less
than three months before the application for the licence;
(c) the Copyright Board is satisfied that the applicant is competent to reproduce and publish an accurate
reproduction of the work and possesses the means to pay to the owner of the copyright the royalties
(d) the applicant undertakes to reproduce and publish the work at such price as may be fixed by the Copyright
Board, being a price reasonably related to the price normally charged in India for works of the same
standard on the same or similar subjects;
(e) a period of six months in the case of an application for the reproduction and publication of any work of
natural science, physical science, mathematics or technology, or a period of three months in the case of an
application for the reproduction and publication of any other work, has elapsed from the date of making the
request under clause (a), or where a copy of the request has been sent under clause (b), from the date of
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APPENDIX 1
sending of a copy, and a reproduction of the work has not been published by the owner of the copyright in
the work or any person authorised by him within the said period of six months or three months, as the case
may be;
(f) the name of the author and the title of the particular edition of the work proposed to be reproduced are
printed on all the copies of the reproduction;
(g) the author has not withdrawn from circulation copies of the work; and
(h) an opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.
(5) No licence to reproduce and publish the translation of a work shall be granted under this section unless such
translation has been published by the owner of the right of translation or any person authorised by him and the
translation is not in a language in general use in India.
(6) The provisions of this section shall also apply to the reproduction and publication, or translation into a language
in general use in India, of any text incorporated in audio-visual fixations prepared and published solely for the
purpose of systematic instructional activities.
Explanation .-For the purposes of this section, "relevant period", in relation to any work, means a period of-
(a) seven years from the date of the first publication of that work, where the application is for the reproduction
and publication of any work of, or relating to, fiction, poetry, drama, music, or art;
(b) three years from the date of the first publication of that work, where the application is for the reproduction
and publication of any work of, or relating to, natural science, physical science, mathematics or technology;
and
(c) five years from the date of the first publication of that work, in any other case.
32-B. Termination of licences issued under this Chapter.-

(1) If, at any time after the granting of a licence to produce and publish the translation of a work in any language
under sub-section (1-A) of section 32 (hereafter in this sub-section referred to as the licensed work), the owner of
the copyright in the work or any person authorised by him publishes a translation of such work in the same
language and which is substantially the same in content at a price reasonably related to the price normally charged
in India for the translation of works of the same standard on the same or similar subject, the licence so granted shall
be terminated:
Provided that no such termination shall take effect until after the expiry of a period of three months from the date of
service of a notice in the prescribed manner on the person holding such licence by the owner of the right of
translation intimating the publication of the translation as aforesaid:
Provided further that copies of the licensed work produced and published by the person holding such licence before
the termination of the licence takes effect may continue to be sold or distributed until the copies already produced
and published are exhausted.
(2) If, at any time after the granting of a licence to produce and publish the reproduction or translation of any work
under section 32 -A, the owner of the right of reproduction or any person authorised by him sells or distributes
copies of such work or a translation thereof, as the case may be, in the same language and which is substantially
the same in content at a price reasonably related to the price normally charged in India for works of the same
standard on the same or similar subject, the licence so granted shall be terminated:
Provided that no such termination shall take effect until after the expiry of a period of three months from the date of
service of a notice in the prescribed manner on the person holding the licence by the owner of the right to
reproduction intimating the sale or distribution of the copies of the editions of work as aforesaid:
Provided further that any copies already reproduced by the licensee before such termination takes effect may
continue to be sold or distributed until the copies already produced are exhausted.]
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APPENDIX 1
94[CHAPTER VII
Copyright Societies
33. Registration of copyright society.-

(1) No person or association of persons shall, after coming into force of the Copyright (Amendment) Act, 1994
commence or, carry on the business of issuing or granting licences in respect of any work in which copyright
subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration
granted under sub-section (3):
Provided that an owner of copyright shall, in his individual capacity, continue to have the right to grant licences in
respect of his own works consistent with his obligations as a member of the registered copyright society:
95[ Provided further that the business of issuing or granting licence in respect of literary, dramatic, musical and
artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a
copyright society duly registered under this Act:
Provided also] that a performing rights society functioning in accordance with the provisions of section 33 on the
date immediately before the coming into force of the Copyright (Amendment) Act, 1994 shall be deemed to be a
copyright society for the purposes of this Chapter and every such society shall get itself registered within a period of
one year from the date of commencement of the Copyright (Amendment) Act, 1994.
(2) Any association of persons who fulfils such conditions as may be prescribed may apply for permission to do the
business specified in sub-section (1) to the Registrar of Copyrights who shall submit the application to the Central
Government.
(3) The Central Government may, having regard to the interests of the authors and other owners of rights under this
Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek
licences in respect of the relevant rights and the ability and professional competence of the applicants, register such
association of persons as a copyright society subject to such conditions as may be prescribed:
Provided that the Central Government shall not ordinarily register more than one copyright society to do business in
respect of the same class of works.
96[(3A)The registration granted to a copyright society under sub-section (3) shall be for a period of five years and
may be renewed from time to time before the end of every five years on a request in the prescribed form and the
Central Government may renew the registration after considering the report of Registrar of Copyrights on the
working of the copyright society under section 36 :
Provided that the renewal of the registration of a copyright society shall be subject to the continued collective
control of the copyright society being shared with the authors of works in their capacity as owners of copyright or of
the right to receive royalty:
Provided further that every copyright society already registered before the coming into force of the copyright
(Amendment) Act, 2012 shall get itself registered under this Chapter within a period of one year from the date of
commencement of the Copyright (Amendment) Act, 2012].
(4) The Central Government may, if it is satisfied that a copyright society is being managed in a manner detrimental
to the interests of the 97[authors and other owners of right] concerned, cancel the registration of such society after
such inquiry as may be prescribed.
(5) If the Central Government is of the opinion that in the interest of the 97 [authors and other owners of right]
concerned 98[or for non-compliance of section 33A, sub-section (3) of section 35 and section 36 or any change
carried out in the instrument by which the copyright society is established or incorporated and registered by the
Central Government without prior notice to it] is necessary so to do, it may, by order, suspend the registration of
Page 26 of 53
APPENDIX 1
such society pending inquiry for such period not exceeding one year as may be specified in such order under sub-
section (4) and that Government shall appoint an administrator to discharge the functions of the copyright society.
1[33A. Tariff Scheme by copyright societies.-

(1) Every copyright society shall publish its tariff scheme in such manner as may be prescribed.
(2) Any person who is aggrieved by the tariff scheme may appeal to the Copyright Board and the Board may, if
satisfied after holding such inquiry as it may consider necessary, make such orders as may be required to remove
any unreasonable element, anomaly or inconsistency therein:
Provided that the aggrieved person shall pay to the copyright society any fee as may be prescribed that has fallen
due before making an appeal to the Copyright Board and shall continue to pay such fee until the appeal is decided,
and the Board shall not issue any order staying the collection of such fee pending disposal of the appeal:
Provided further that the Copyright Board may after hearing the parties fix an interim tariff and direct the aggrieved
parties to make the payment accordingly pending disposal of the appeal].
34. Administration of rights of owner by copyright society.-

(1) Subject to such conditions as may be prescribed,-
(a) a copyright society may accept from an 2[authors and other owners of right] exclusive authorisation to
administer any right in any work by issue of licences or collection of licence fees or both; and
(b) an 2 [authors and other owners of right] shall have the right to withdraw such authorisation without prejudice
to the rights of the copyright society under any contract.
(2) It shall be competent for a copyright society to enter into agreement with any foreign society or organisation
administering rights corresponding to rights under this Act, to entrust to such foreign society or organisation the
administration in any foreign country of rights administered by the said copyright society in India, or for
administering in India the rights administered in a foreign country by such foreign society or organisation:
Provided that no such society or organisation shall permit any discrimination in regard to the terms of licence or the
distribution of fees collected between rights in Indian and other works.
(3) Subject to such conditions as may be prescribed, a copyright society may-

(i) issue licences under section 30 in respect of any rights under this Act;
(ii) collect fees in pursuance of such licences;
(iii) distribute such fees among 2 [author and other owners of right] after making deductions for its own
expenses;
(iv) perform any other functions consistent with the provisions of section 35.
34-A. Payment of remunerations by copyright society.- 3[* * *]
35. Control over the copyright society by the 4[author and other owners of
right].-
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APPENDIX 1
(1) Every copyright society shall be subject to the collective control of the 4 [author and other owners of right] under
this Act whose rights it administers (not being 4 [author and other owners of right] under this Act administered by a
foreign society or organisation referred to in sub-section (2) of section 34 ) and shall, in such manner as may be
prescribed,-
(a) obtain the approval of such 4 [author and other owners of rights] for its procedures of collection and
distribution of fees;
(b) obtain their approval for the utilisation of any amounts collected as fees for any purpose other than
distribution to the 5[author and other owners of rights]; and
(c) provide to such owners regular, full and detailed information concerning all its activities, in relation to the
administration of their rights.
(2) All fees distributed among the 5 [author and other owners of rights] shall, as far as may be, be distributed in
proportion to the actual use of their works.
6[(3)
Every copyright society shall have a governing body with such number of persons elected from among the
members of the society consisting of equal number of authors and owners of work for the purpose of the
administration of the society as may be specified.
(4) All members of copyrights society shall enjoy equal membership rights and there shall be no discrimination
between authors and owners of rights in the distribution of royalties].
36. Submission of returns and reports.-(1) Every copyright society shall

submit to the Registrar of Copyrights such returns as may be prescribed.
(2) Any officer duly authorised by the Central Government in this behalf may call for any report and also call for any
records of any copyright society for the purpose of satisfying himself that the fees collected by the society in respect
of rights administered by it are being utilised or distributed in accordance with the provisions of this Act.
36-A. Rights and liabilities of performing rights societies.-

Nothing in this Chapter shall affect any rights or liabilities in any work in connection with a 7[copyright society] which
had accrued or were incurred on or before the day prior to the commencement of 8[the Copyright (Amendment) Act,
2012], or any legal proceedings in respect of any such rights or liabilities pending on that day.]
Chapter VIII
9[Rights of Broadcasting Organisation and of Performers]
10[37. Broadcast reproduction right.-
(1) Every broadcasting organisation shall have a special right to be known as "broadcast reproduction right" in
respect of its broadcasts.
(2) The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year
next following the year in which the broadcast is made.
(3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without
the licence of the owner of the right does not any of the following acts of the broadcast or any substantial part
thereof,-
(a) re-broadcasts the broadcast; or
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APPENDIX 1
(b) causes the broadcast to be heard or seen by the public on payment of any charges; or
(c) makes any sound recording or visual recording of the broadcast; or
(d) makes any reproduction of such sound recording or visual recording where such initial recording was done
without licence or, where it was licensed, for any purpose not envisaged by such licence; or
11[(e)sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual
recording referred to in clause (c) or clause (d)]].
12[38. Performer’s right.-
(1) Where any performer appears or engages in any performance, he shall have a special right to be known as the
"performer’s right" in relation to such performance.
(2) The performer’s right shall subsist until 13[fifty years] from the beginning of the calendar year next following the
year in which the performance is made.
14[* * *]
15[38A. Exclusive right of performers.-

(1) Without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right subject to
the provisions of this Act to do or authorise for doing any of the following acts in respect of the performance or any
substantial part thereof, namely:-
(a) to make a sound recording or a visual recording of the performance, including-

(i) reproduction of it in any material form including the storing of it in any medium by electronic or any other
means;
(ii) issuance of copies of it to the public not being copies already in circulation;
(iii) communication of it to the public;
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording;
(b) to broadcast or communicate the performance to the public except where the performance is already broadcast.
(2) Once a performer has, by written agreement, consented to the incorporation of his performance in a
cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the
producer of the film of the performer’s right in the same film:
Provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in
case of making of the performances for commercial use.
38B. Moral rights of the performer.-

The performer of a performance shall, independently of his right after assignment, either wholly or partially of his
right, have the right,-
(a) to claim to be identified as the performer of his performance except where omission is dictated by the
manner of the use of the performance; and
(b) to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance
that would be prejudicial to his reputation.
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APPENDIX 1
Explanation .-For the purposes of this clause, it is hereby clarified that mere removal of any portion of a
performance for the purpose of editing, or to fit the recording within a limited duration, or any other modification
required for purely technical reasons shall not be deemed to be prejudicial to the performer’s reputation.]
16[39. Acts not infringing broadcast reproduction right or performer’s right.-
No broadcast reproduction right or performer’s right shall be deemed to be infringed by-

(a) the making of any sound recording or visual recording for the private use of the person making such
recording, or solely for purposes of bona fide teaching or research; or
(b) the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of
current events or for bona fide review, teaching or research; or
(c) such other acts, with any necessary adaptations and modifications, which do not constitute infringement of
copyright under section 52.
17[39A.Certain provisions to apply in case of broadcast reproduction right

and performer’s rights.-
(1) Sections 18, 19, 30, 30A, 33, 33A, 34, 35, 36, 53, 55, 58, 63, 64, 65, 65A, 65B and 66 shall, with necessary
adaptations and modifications, apply in relation to the broadcast reproduction right in any broadcast and the
performer’s right in any performance as they apply in relation to copyright in a work:
Provided that where copyright or performer’s right subsists in respect of any work or performance that has been
broadcast, no licence to reproduce such broadcast, shall be given without the consent of the owner of right or
performer, as the case may be, or both of them:
Provided further that the broadcast reproduction right or performer’s right shall not subsist in any broadcast or
performance if that broadcast or performance is an infringement of the copyright in any work;
(2) The broadcast reproduction right or the performer’s right shall not affect the separate copyright in any work in
respect of which, the broadcast or the performance, as the case may be, is made.]]
CHAPTER IX
International Copyright
40. Power to extend copyright to foreign works.-

The Central Government may, by order 18 published in the Official Gazette, direct that all or any provisions of this
Act shall apply-
(a) to work first published in any territory outside India to which the order relates in like manner as if they were
first published within India;
(b) to unpublished works, or any class thereof, the authors whereof were at the time of the making of the work,
subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were
citizens of India;
(c) in respect of domicile in any territory outside India to which the order relates in like manner as if such
domicile were in India;
(d) to any work of which the author was at the date of the first publication thereof, or, in a case where the
author was dead at that date, was at the time of his death, a subject or citizen of a foreign country to which
the order relates in like manner as if the author was a citizen of India at that date or time, and thereupon,
subject to the provisions of this Chapter and of the order, this Act shall apply accordingly:
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APPENDIX 1
Provided that-
(i) before making an order under this section in respect of any foreign country (other than a country with which
India has entered into a treaty or which is a party to a convention relating to copyright to which India is also
a party), the Central Government shall be satisfied that foreign country has made, or has undertaken to
make, such provisions, if any, as it appears to the Central Government expedient to require for the
protection in that country of works entitled to copyright under the provisions of this Act;
(ii) the order may provide that the provisions of this Act shall apply either generally or in relation to such
classes of works or such classes of cases as may be specified in the order;
(iii) the order may provide that the term of copyright in India shall not exceed that conferred by the law of the
country to which the order relates 19[but such a term of copyright shall not exceed the term of copyright
provided under this Act];
(iv) the order may provide that the enjoyment of the rights conferred by this Act shall be subject to the
accomplishment of such conditions and formalities, if any, as may be prescribed by the order;
(v) in applying the provisions of this Act as to ownership of copyright, the order may make such exceptions
and modifications as appear necessary, having regard to the law of the foreign country;
(vi) the order may provide that this Act or any part thereof shall not apply to works made before the
commencement of the order or that this Act or any part thereof shall not apply to works first published
before the commencement of the order.
20[40-A.
Power of Central Government to apply Chapter VIII to roadcasting
organisations and performers in certain other countries.-
If the Central Government is satisfied that a foreign country (other than a country with which India has entered into
a treaty or which is a party to a convention relating to rights of broadcasting organisations and performers to which
India is also a party) has made or has undertaken to make such provisions, if any, as it appears to the Central
Government expedient to require, for the protection in that foreign country, of the rights of broadcasting
organisations and performers as is available under this Act, it may, by order published in the Official Gazette, direct
that the provisions of Chapter VIII shall apply-
(a) to broadcasting organisations whose headquarters is situated in a country to which the order relates or, the
broadcast was transmitted from a transmitter situated in a country to which the order relates as if the
headquarters of such organisation were situated in India or such broadcast were made from India;
(b) to performances that took place outside India to which the order relates in like manner as if they took place
in India;
(c) to performances that are incorporated in a sound recording published in a country to which the order
relates as if it was published in India;
(d) to performances not fixed on a sound recording broadcast by a broadcasting organisation the headquarters
of which is located in a country to which the order relates or where the broadcast is transmitted from a
transmitter which is situated in a country to which the order relates as if the headquarters of such
organisation were situated in India or such broadcast were made from India.
(2) Every order made under sub-section (1) may provide that-
(i) the provisions of Chapter VIII shall apply either generally or in relation to such class or classes of
broadcasts or performances or such other class or classes of cases as may be specified in the order;
(ii) the term of the rights of broadcasting organisations and performers in India shall not exceed such term as
is conferred by the law of the country to which the order relates:
21[ Provided that it does not exceed the period provided under this Act;]
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APPENDIX 1
(iii) the enjoyment of the rights conferred by Chapter VIII shall be subject to the accomplishment of such
conditions and formalities, if any, as may be specified in that order;
(iv) Chapter VIII or any part thereof shall not apply to broadcast and performances made before the
commencement of the order or that Chapter VIII or any part thereof shall not apply to broadcasts and
performances broadcast or performed before the commencement of the order;
(v) in case of ownership of rights of broadcasting organisations and performers, the provisions of Chapter VIII
shall apply with such exceptions and modifications as the Central Government may, having regard to the
law of the foreign country, consider necessary.]
41. Provisions as to works of certain international organisations.-

(1) Where-
(a) any work is made or first published by or under the direction or control of any organisation to which this
section applies, and
(b) there would, apart from this section, be no copyright in the work in India at the time of the making or, as the
case may be, of the first publication thereof, and
(c) either-
(i) the work is published as aforesaid in pursuance of an agreement in that behalf with the author, being
an agreement which does not reserve to the author the copyright, if any, in the work, or
(ii) under section 17 any copyright in the work would belong to the organisation,
there shall, by virtue of this section, be copyright in the work throughout India.
(2) Any organisation to which this section applies which at the material time had not the legal capacity of a body
corporate shall have and be deemed at all material times to have had the legal capacity of a body corporate for the
purpose of holding, dealing with, and enforcing copyright and in connection with all legal proceedings relating to
copyright.
(3) The organisations to which this section applies are such organisations as the Central Government may, by order
22 published in the Official Gazette, declare to be organisations of which one or more sovereign powers or the
Government or Governments thereof are members to which it is expedient that this section shall apply.
42. Power to restrict rights in works of foreign authors first published in

India.-
If it appears to the Central Government that a foreign country does not give or has not undertaken to give adequate
protection to the works of Indian authors, the Central Government may, by order published in the Official Gazette,
direct that such of the provisions of this Act as confer copyright on works first published in India shall not apply to
works, published after the date specified in the order, the authors whereof are subjects or citizens of such foreign
country and are not domiciled in India, and thereupon those provisions shall not apply to such works.
23[42-A.
Power to restrict rights of foreign broadcasting organisations and
performers.-
If it appears to the Central Government that a foreign country does not give or has not undertaken to give adequate
protection to rights of broadcasting organisations or performers, the Central Government may, by order published in
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APPENDIX 1
the Official Gazette, direct that such of the provisions of this Act as confer right to broadcasting organisations or
performers, as the case may be, shall not apply to broadcasting organisations or performers whereof are based or
incorporated in such foreign country or are subjects or citizens of such foreign country and are not incorporated or
domiciled in India, and thereupon those provisions shall not apply to such broadcasting organisations or
performers.]
43. Orders under this Chapter to be laid before Parliament.-

Every order made by the Central Government under this Chapter shall, as soon as may be after it is made, be laid
before both Houses of Parliament and shall be subject to such modifications as Parliament may make during the
session in which it is so laid or the session immediately following.
CHAPTER X
Registration of Copyright
44. Register of Copyrights.-

There shall be kept at the Copyright Office a register in the prescribed form to be called the Register of Copyrights
in which may be entered the names or titles of works and the names and addresses of authors, publishers and
owners of copyright and such other particulars as may be prescribed.
45. Entries in Register of Copyrights.-

(1) The author or publisher of, or the owner of or other person interested in the copyright in, any work may make an
application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering
particulars of the work in the Register of Copyrights:
24[Provided that in respect of an artistic work which is used or is capable of being used in 25[relation to any goods or
services], the application shall include a statement to that effect and shall be accompanied by a certificate from the
Registrar of Trade Marks referred to in 26[ section 3 of the Trade Marks Act, 1999 (47 of 1999)], to the effect that no
trade mark identical with or deceptively similar to such artistic work has been registered under that Act in the name
of, or that no application has been made under that Act for such registration by, any person other than the
applicant.]
(2) On receipt of an application in respect of any work under sub-section (1), the Registrar of Copyrights may, after
holding such inquiry as he may deem fit, enter the particulars of the work in the Register of Copyrights.
46. Indexes.-
There shall be also kept at the Copyright Office such indexes of the Register of Copyrights as may be prescribed.
47. Form and inspection of register.-

The Register of Copyrights and indexes thereof kept under this Act shall at all reasonable times be open to
inspection, and any person shall be entitled to take copies of, or make extracts from, such register or indexes on
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APPENDIX 1
payment of such fee and subject to such conditions as may be prescribed.
48. Register of Copyrights to be prima facie evidence of particulars entered

therein.-
The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents
purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and
sealed with the seal of the Copyright Office shall be admissible in evidence in all Courts without further proof or
production of the original.
49. Correction of entries in the Register of Copyrights.-

The Registrar of Copyrights may, in the prescribed cases and subject to the prescribed conditions, amend or alter
the Register of Copyrights by-
(a) correcting any error in any name, address or particulars; or
(b) correcting any other error which may have arisen therein by accidental slip or omission.
50. Rectification of Register by Copyright Board.-

The Copyright Board, on application of the Registrar of Copyrights or of any person aggrieved, shall order the
rectification of the Register of Copyrights by-
(a) the making of any entry wrongly omitted to be made in the register, or
(b) the expunging of any entry wrongly made in, or remaining on, the register, or
(c) the correction of any error or defect in the register.
27[50-A. Entries in the Register of Copyrights, etc., to be published.-

Every entry made in the Register of Copyrights or the particulars of any work entered under section 45, the
correction of every entry made in such register under section 49, and every rectification ordered under section 50,
shall be published by the Registrar of Copyrights in the Official Gazette or in such other manner as he may deem
fit.]
CHAPTER XI
Infringement of Copyright
51. When copyright infringed.-

Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under
this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent
authority under this Act-
Page 34 of 53
APPENDIX 1
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
28[(ii) permits for profit any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and had
no reasonable ground for believing that such communication to the public would be an infringement of
copyright; or]
(b) when any person-

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the
copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports 29[* * *] into India,
any infringing copies of the work:

30[
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and
domestic use of the importer.]
Explanation .-For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the
form of a cinematograph film shall be deemed to be an "infringing copy".
52. Certain acts not to be infringement of copyright.-

(1) The following acts shall not constitute an infringement of copyright, namely:-
31[(a) a fair dealing with any work, not being a computer programme, for the purposes of-
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
Explanation .-The storing of any work in any electronic medium for the purposes mentioned in this clause, including
the incidental storage of any computer programme which is not itself an infringing copy for the said purposes, shall
not constitute infringement of copyright.]
32[(aa)
the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such
computer programme from such copy-
(i) in order to utilise the computer programme for the purpose for which it was supplied; or
(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to
utilise the computer programme for the purpose for which it was supplied;]
33[(ab)the doing of any act necessary to obtain information essential for operating interoperability of an
independently created computer programme with other programmes by a lawful possessor of a computer
programme provided that such information is not otherwise readily available;
(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and
principles which underline any elements of the programme while performing such acts necessary for the functions
for which the computer programme was supplied;
Page 35 of 53
APPENDIX 1
(ad) the making of copies or adaptation of the computer programme from a personally legally obtained copy for
non-commercial personal use;]
34[(b)the transient or incidental storage of a work or performance purely in the technical process of electronic
transmission or communication to the public;
(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or
integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the
person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:
Provided that if the person responsible for the storage of the copy has received a written complaint from the owner
of copyright in the work, complaining that such transient or incidental storage is an infringement, such person
responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he
receives an order from the competent court refraining from facilitating access and in case no such order is received
before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;
(d) the reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a judicial
proceeding;
(e) the reproduction or publication of any work prepared by the Secretariat of a Legislature or, where the Legislature
consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the
members of that Legislature;";
(f) the reproduction of any work in a certified copy made or supplied in accordance with any law for the time being in
force;
(g) the reading or recitation in public of reasonable extracts from a published literary or dramatic work;
(h) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use,
and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages
from published literary or dramatic works, not themselves published for such use in which copyright subsists;
Provided that not more than two such passages from works by the same author are published by the same
publisher during any period of five years.
Explanation .-In the case of a work of joint authorship, references in this clause to passages from works shall
include references to passages from works by any one or more of the authors of those passages or by any one or
more of those authors in collaboration with any other person;
(i) the reproduction of any work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;
(j) the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work
by the staff and students of the institution, or of a cinematograph film or a sound recording if the audience is limited
to such staff and students, the parents and guardians of the students and persons connected with the activities of
the institution or the communication to such an audience of a cinematograph film or sound recording;]
35[(k) the causing of a recording to be heard in public by utilising it,-
(i) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel
or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or
(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit;]
Page 36 of 53
APPENDIX 1
(l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given
to a non-paying audience, or for the benefit of a religious institution;
(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social
or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;
36[(n) the storing of a work in any medium by electronic means by a non-commercial public library, for preservation if
the library already possesses a non-digital copy of the work;]
(o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by
or under the direction of the person in charge of a 37[non-commercial public library] for the use of the library if such
book is not available for sale in India;
(p) the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished
literary, dramatic or musical work kept in a library, museum or other institution to which the public has access:
Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, of any of
the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause
shall apply only if such reproduction is made at a time more than 38[sixty years] from the date of the death of the
author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the
identity of more authors than one is known from the death of such of those authors who dies last;
(q) the reproduction or publication of-
(i) any matter which has been published in any Official Gazette except an Act of a Legislature;
(ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any
commentary thereon or any other original matter;
(iii) the report of any committee, commission, council, board or other like body appointed by the Government if such
report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is
prohibited by the Government;
(iv) any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of
such judgment or order is prohibited by the Court, the Tribunal or other judicial authority, as the case may be;
(r) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or
orders made thereunder-
(i) if no translation of such Act or rules or orders in that language has previously been produced or published by the
Government; or
(ii) here a translation of such Act or rules or orders in that language has been produced or published by the
Government, if the translation is not available for sale to the public:
Provided that such translation contains a statement at a prominent place to the effect that the translation has not
been authorised or accepted as authentic by the Government;
39[(s)the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the
display of a work of architecture;]
(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work
falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any
premises to which the public has access;
(u) the inclusion in a cinematograph film of-
(i) any artistic work permanently situate in a public place or any premises to which the public has access; or
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APPENDIX 1
(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal
matters represented in the film;
(v) the use by the author of an artistic work, where the author of such work is not the owner of the copyright therein,
of any mould, cast, sketch, plan, model or study made by him for the purpose of the work:
Provided that he does not thereby repeat or imitate the main design of the work;
40[(w) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing,
for the purposes of industrial application of any purely functional part of a useful device;]
(x) the reconstruction of a building or structure in accordance with the architectural drawings or plans by reference
to which the building or structure was originally constructed:
Provided that the original construction was made with the consent or licence of the owner of the copyright in such
drawings and plans;
(y) in relation to a literary, 41[dramatic, artistic or] musical work recorded or reproduced in any cinematograph film,
the exhibition of such film after the expiration of the term of copyright therein:
Provided that the provisions of sub-clause (ii) of clause (a) , sub-clause (i) of clause (b) and clauses (d), (f), (g), (m)
and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgment-
(i) identifying the work by its title or other description; and
(ii) unless the work is anonymous or the author of the work has previously agreed or required that no
acknowledgment of his name should be made, also identifying the author;
42[(z)the making of an ephemeral recording, by a broadcasting organisation using its own facilities for its own
broadcast by a broadcasting organisation of a work which it has the right to broadcast; and the retention of such
recording for archival purposes on the ground of its exceptional documentary character;
(za) the performance of a literary, dramatic or musical work or the communication to the public of such work or of a
sound recording in the course of any bona fide religious ceremony of an official ceremony held by the Central
Government or the State Government or any local authority.
Explanation .-For the purpose of this clause, religious ceremony including a marriage procession and other social
festivities associated with a marriage.]
43[(zb)the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible
format, by-
(i) any person to facilitate persons with disability to access to works including sharing with any person with disability
of such accessible format for private or personal use, educational purpose or research; or
(ii) any organisation working for the benefit of the persons with disabilities in case the normal format prevents the
enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available to the persons with disabilities
on a non-profit basis but to recover only the cost of production:
Provided further that the organisation shall ensure that the copies of works in such accessible format are used only
by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.
Explanation .-For the purposes of this sub-clause, "any organisation" includes and organisation registered under
section 12A of the Income-tax Act, 1961 (43 of 1961) and working for the benefit of persons with disability or
recognised under Chapter X of the Persons with Disabilities (Equal Opportunities, Protection or Rights and full
Participation) Act, 1995 (1 of 1996) or receiving grants from the government for facilitating access to persons with
disabilities or an educational institution or library or archives recognised by the Government.
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APPENDIX 1
(zc) the importation of copies of any literary or artistic work, such as labels, company logos or promotional or
explanatory material, that is purely incidental to other goods or products being imported lawfully.]
(2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary,
dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to
the work itself.
44[52-A. Particulars to be included in 45[sound recording] and video films.-

(1) No person shall publish a 45 [sound recording] in respect of any work unless the following particulars are
displayed on the 89 [sound recording] and on any container thereof, namely:-
(a) the name and address of the person who has made the 2 [sound recording];
(b) the name and address of the owner of the copyright in such work; and
(c) the year of its first publication.
(2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the
video film, when exhibited, and on the video cassette or other container thereof, namely:-
(a) if such work is a cinematograph film required to be certified for exhibition under the provisions of the
Cinematograph Act, 1952 (37 of 1952), a copy of the certificate granted by the Board of Film Certification
under section 5 -A of that Act in respect of such work;
(b) the name and address of the person who has made the video film and a declaration by him that he has
obtained the necessary licence or consent from the owner of the copyright in such work for making such
video film; and
(c) the name and address of the owner of the copyright in such work.]
46[52B. Accounts and audit.-***]

47[53. Importation of infringing copies.-
(1) The owner of any right conferred by this Act in respect of any work or any performance embodied in such work,
or his duly authorised agent, may give notice in writing to the Commissioner of Customs, or to any other officer
authorised in this behalf by the Central Board of Excise and Customs,-
(a) that he is the owner of the said right, with proof thereof; and
(b) that he requests the Commissioner for a period specified in the notice,
which shall not exceed one year, to treat infringing copies of the work as prohibited goods, and that infringing
copies of the work are expected to arrive in India at a time and a place specified in the notice.
(2) The Commissioner, after scrutiny of the evidence furnished by the owner of the right and on being satisfied may,
subject to the provisions of sub-section (3), treat infringing copies of the work as prohibited goods that have been
imported into India, excluding goods in transit:
Provided that the owner of the work deposits such amount as the Commissioner may require as security having
regard to the likely expenses on demurrage, cost of storage and compensation to the importer in case it is found
that the works are not infringing copies.
(3) When any goods treated as prohibited under sub-section (2) have been detained, the Customs Officer detaining
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them shall inform the importer as well as the person who gave notice under sub-section (1) of the detention of such
goods within forty-eight hours of their detention.
(4) The Customs Officer shall release the goods, and they shall no longer be treated as prohibited goods, if the
person who gave notice under sub-section (1) does not produce any order from a court having jurisdiction as to the
temporary or permanent disposal of such goods within fourteen days from the date of their detention].
48[53-A. Resale share right in original copies.-

(1) In the case of resale for a price exceeding ten thousand rupees, to the original copy of a painting, sculpture or
drawing, or of the original manuscript of a literary or dramatic work 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 copy or manuscript in accordance with the
provisions of this section:
Provided that such right shall cease to exist on the expiration of the term of copyright in the work.
(2) The share referred to in sub-section (1) shall be such as the Copyright Board may fix and the decision of the
Copyright Board in this behalf shall be final:
Provided that the Copyright Board may fix different shares for different classes of work:
Provided further that in no case shall the share exceed ten per cent. of the resale price.
(3) If any dispute arises regarding the right conferred by this section, it shall be referred to the Copyright Board
whose decision shall be final.]
CHAPTER XII
Civil Remedies
54. Definition.-
For the purposes of this Chapter, unless the context otherwise requires, the expression "owner of copyright" shall
include-
(a) an exclusive licensee;
(b) in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher of
the work, until the identity of the author or, in the case of an anonymous work of joint authorship, or a work
of joint authorship published under names all of which are pseudonyms, the identity of any of the authors,
is disclosed publicly by the author and the publisher or is otherwise established to the satisfaction of the
Copyright Board by that author or his legal representatives.
55. Civil remedies for infringement of copyright.-

(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided
by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may
be conferred by law for the infringement of a right:
Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable
ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than
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an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant
by the sale of the infringing copies as the Court may in the circumstances deem reasonable.
(2) Where, in the case of a literary, dramatic, musical or artistic work, 49[or, subject to the provisions of sub-section
(3) of section 13, a cinematograph film or sound recording, a name purporting to be that of the author, or the
publisher, as the case may be, of that work, appears] on copies of the work published, or, in the case of an artistic
work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any
proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be
the author or the publisher of the work, as the case may be.
(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of
the Court.
56. Protection of separate rights.-

Subject to the provisions of this Act, where the several rights comprising the copyright in any work are owned by
different persons, the owner of any such right shall, to the extent of that right, be entitled to the remedies provided
by this Act and may individually enforce such right by means of any suit, action or other proceeding without making
the owner of any other right a party to such suit, action or proceeding.
57. Author’s special rights.-

50[(1)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,-
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to
the said work 51[***] if such distortion, mutilation, modification or other act would be prejudicial to his honour
or reputation:
Provided that 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.
Explanation .-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.]
(2) The right conferred upon an author of a work by sub-section (1), 52[***] may be exercised by the legal
representatives of the author.
58. Rights of owner against persons possessing or dealing with infringing

copies.-
All infringing copies of any work in which copyright subsists, and all plates used or intended to be used for the
production of such infringing copies, shall be deemed to be the property of the owner of the copyright, who
accordingly may take proceedings for the recovery of possession thereof or in respect of the conversion thereof:
Provided that the owner of the copyright shall not be entitled to any remedy in respect of the conversion of any
infringing copies, if the opponent proves-
(a) that he was not aware and had no reasonable ground to believe that copyright subsisted in the work of
which such copies are alleged to be infringing copies; or
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(b) that he had reasonable grounds for believing that such copies or plates do not involve infringement of the
copyright in any work.
59. Restriction on remedies in the case of works of architecture.-

(1) Notwithstanding anything contained in 53[the Specific Relief Act, 1963 (47 of 1963)], where the construction of a
building or other structure which infringes or which, if completed, would infringe the copyright in some other work
has been commenced, the owner of the copyright shall not be entitled to obtain an injunction to restrain the
construction of such building or structure or to order its demolition.
(2) Nothing in section 58 shall apply in respect of the construction of a building or other structure which infringes or
which, if completed, would infringe the copyright in some other work.
60. Remedy in the case of groundless threat of legal proceedings.-

Where any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise,
threatens, any other person with any legal proceedings or liability in respect of an alleged infringement of the
copyright, any person aggrieved thereby may, notwithstanding anything contained 54[in section 34 of the Specific
Relief Act, 1963 (47 of 1963)] institute a declaratory suit that the alleged infringement to which the threats related
was not in fact an infringement of any legal rights of the person making such threats and may in any such suit-
(a) obtain an injunction against the continuance of such threats; and
(b) recover such damages, if any, as he has sustained by reason of such threats:
Provided that this section shall not apply if the person making such threats, with due diligence, commences and
prosecutes an action for infringement of the copyright claimed by him.
61. Owners of copyright to be party to the proceeding.-

(1) In every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the
owner of the copyright shall, unless the Court otherwise directs, be made a defendant and where such owner is
made a defendant, he shall have the right to dispute the claim of the exclusive licensee.
(2) Where any civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee is
successful, no fresh suit or other proceeding in respect of the same cause of action shall lie at the instance of the
owner of the copyright.
62. Jurisdiction of Court over matters arising under this Chapter.-

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any
work or the infringement of any other right conferred by this Act shall be instituted in the district Court having
jurisdiction.
(2) For the purpose of sub-section (1), a "district Court having jurisdiction" shall, notwithstanding anything contained
in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district Court
within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person
instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and
voluntarily resides or carries on business or personally works for gain.
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CHAPTER XIII
Offences
63. Offence of infringement of copyright or other rights conferred by this

Act.-
Any person who knowingly infringes or abets the infringement of-
(a) the copyright in a work, or
(b) any other right conferred by this Act 55[except the right conferred by section 53 -A],
56[shallbe punishable with imprisonment for a term which shall not be less than six months but which may extend to
three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh
rupees:
Provided that 96 [where the infringement has not been made for gain in the course of trade or business] the Court
may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a
term of less than six months or a fine of less than fifty thousand rupees.]
Explanation .-Construction of a building or other structure which, infringes or which, if completed, would infringe the
copyright in some other work shall not be an offence under this section.
57[63-A. Enhanced penalty on second and subsequent convictions.-

Whoever having already been convicted of an offence under section 63 is again convicted of any such offence shall
be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be
less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees
but which may extend to two lakh rupees:
Provided that 58[where the infringement has not been made for gain in the course of trade or business] the Court
may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a
term of less than one year or a fine of less than one lakh rupees:
Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before
the commencement of the Copyright (Amendment) Act, 1984 (68 of 1984).]
59[63-B.Knowing use of infringing copy of computer programme to be an

offence.-
Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be
punishable with imprisonment for a term which shall not be less than seven days but which may extend to three
years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that where the computer programme has not been used for gain or in the course of trade or business, the
Court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of
imprisonment and may impose a fine which may extend to fifty thousand rupees.]
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APPENDIX 1
64. Power of police to seize infringing copies.-

60[(1)Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section
63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize
without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work,
wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a
Magistrate.]
(2) Any person having an interest in any copies of a work 61[or plates] seized under sub-section (1) may, within
fifteen days of such seizure, make an application to the Magistrate for such copies 4 [or plates] being restored to him
and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be
necessary, shall make such order on the application as he may deem fit.
65. Possession of plates for purpose of making infringing copies.-

Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of
any work in which copyright subsists shall be punishable with imprisonment which may extend to 62[two years and
shall also be liable to fine.]
63[65A. Protection of technological measures.-

(1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the
rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which
may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall prevent any person from-

Provided that any person facilitating circumvention by another person of a technological measure for
such a purpose shall maintain a complete record of such other person including his name, address and
all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or
(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a computer
network with the authorisation of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or surveillance
of a user; or
(g) taking measures necessary in the interest of national security.
65B. Protection of Rights Management Information.-

Any person, who knowingly,-
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(ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of
any work, or performance knowing that electronic rights management information has been removed or
altered without authority,
Provided that if the rights management information has been tampered with in any work, the owner of copyright in
such work may also avail of civil remedies provided under Chapter XII against the persons indulging in such acts.]
66. Disposal of infringing copies or plates for purpose of making infringing

copies.-
The Court trying any offence under this Act may, whether the alleged offender is convicted or not, order that all
copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies,
or plates for the purpose of making infringing copies, be delivered up to the owner of the copyright 64[or may make
such order as it may deem fit regarding the disposal of such copies or plates].
67. Penalty for making false entries in register, etc., for producing or
tendering false entries.-
Any person who,-
(a) makes or causes to be made a false entry in the Register of Copyrights kept under this Act, or
(b) makes or causes to be made a writing falsely purporting to be a copy of any entry in such register, or
(c) produces or tenders or causes to be produced or tendered as evidence any such entry or writing, knowing
the same to be false,
shall be punishable with imprisonment which may extend to one year, or with fine, or with both.
68. Penalty for making false statements for the purpose of deceiving or
influencing any authority or officer.-
Any person who,-
(a) with a view to deceiving any authority or officer in the execution of the provisions of this Act, or
(b) with a view to procuring or influencing the doing or omission of anything in relation to this Act or any matter
thereunder,
makes a false statement or representation knowing the same to be false, shall be punishable with imprisonment
which may extend to one year, or with fine, or with both.
65[68-A. Penalty for contravention of section 52 -A.-

Any person who publishes a 66[sound recording] or a video film in contravention of the provisions of section 52 -A
shall be punishable with imprisonment which may extend to three years and shall also be liable to fine.]
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APPENDIX 1
69. Offences by companies.-

(1) Where any offence under this Act has been committed by a company, every person who at the time the offence
was committed was in charge of, and was responsible to the company for, the conduct of the business of the
company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to any punishment, if he proves
that the offence was committed without his knowledge or that he exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by
a company, and it is proved that the offence was committed with the consent or connivance of, or is attributable to
any negligence on the part of, any director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly.
Explanation .-For the purposes of this section-

(a) "company" means any body corporate and includes a firm or other association of persons; and
(b) "director" in relation to a firm means a partner in the firm.
70. Cognizance of offences.-

No Court inferior to that of 67[a Metropolitan Magistrate or a Judicial Magistrate of the first class] shall try any
offence under this Act.
CHAPTER XIV
Appeals
71. Appeals against certain orders of Magistrate.-

Any person aggrieved by an order made under sub-section (2) of section 64 or section 66 may, within thirty days of
the date of such order, appeal to the Court to which appeals from the Court making the order ordinarily lie, and such
appellate Court may direct that execution of the order be stayed pending disposal of the appeal.
72. Appeals against orders of Registrar of Copyrights and Copyright Board.-

(1) Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months
from the date of the order or decision, appeal to the Copyright Board.
(2) Any person aggrieved by any final decision or order of the Copyright Board, not being a decision or order made
in an appeal under sub-section (1), may, within three months from the date of such decision or order, appeal to the
High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or
personally works for gain:
Provided that no such appeal shall lie against a decision of the Copyright Board under section 6.
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APPENDIX 1
(3) In calculating the period of three months provided for an appeal under this section, the time taken in granting a
certified copy of the order or record of the decision appealed against shall be excluded.
73. Procedure for appeals.-

The High Court may make rules consistent with this Act as to the procedure to be followed in respect of appeals
made to it under section 72.
CHAPTER XV
Miscellaneous
74. Registrar of Copyrights and Copyright Board to possess certain powers

of Civil Courts.-
The Registrar of Copyrights and the Copyright Board shall have the powers of a Civil Court when trying a suit under
the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) requisitioning any public record or copy thereof from any Court or office;
(f) any other matter which may be prescribed.
Explanation .-For the purpose of enforcing the attendance of witnesses, the local limits of the jurisdiction of the
Registrar of Copyrights or the Copyright Board, as the case may be, shall be the limits of the territory of India.
75. Orders for payment of money passed by Registrar of Copyrights and

Copyright Board to be executable as a decree.-
Every order made by the Registrar of Copyrights or the Copyright Board under this Act for the payment of any
money or by the High Court in any appeal against any such order of the Copyright Board shall, on a certificate
issued by the Registrar of Copyrights, the Copyright Board or the Registrar of the High Court, as the case may be,
deemed to be a decree of a Civil Court and shall be executable in the same manner as a decree of such Court.
76. Protection of action taken in good faith.-

No suit or other legal proceeding shall lie against any person in respect of anything which is in good faith done or
intended to be done in pursuance of this Act.
77. Certain persons to be public servants.-

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APPENDIX 1
Every officer appointed under this Act and every member of the Copyright Board shall be deemed to be a public
servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
78. Power to make rules.-

(1) The Central Government may, by notification in the Official Gazette, make rules 68 for carrying out the purposes
of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, the Central Government may make
rules to provide for all or any of the following matters, namely:-
69[(a)the salaries and allowances payable to and the other terms and conditions of service of the chairman and
other members of the Copyright Board under sub-section (2) of section 11 ;]
(b) the form of complaints and applications to be made, and the licences to be granted, under this Act;
(c) the procedure to be followed in connection with any proceeding before the Registrar of Copyrights;
70[(cA)the form and manner in which an organisation may apply to the Copyright Board for compulsory licence for
disabled and the fee which may accompany such application under sub-section (1) of section 31B;
(cB) the manner in which a person making sound recording may give prior notice of his intention to make sound
recording under sub-section (2) of section 31C;
(cC) the register and books of account and the details of existing stock which a person making sound recording
may maintain under sub-section (5) of section 31C;
(cD) the manner in which prior notice may be given by a broadcasting organisation under sub-section (2) of section
31D;
(cE) the reports and accounts which may be maintained under clause (a), and the inspection of records and books
of account which may be made under clause (b) of sub-section (7) of section 31D;]
71[(ca) the conditions for submission of application under sub-section (2) of section 33 ;
(cb) the conditions subject to which a copyright society may be registered under sub-section (3) of section 33 ;
(cc) the inquiry for cancellation of registration under sub-section (4) of section 33 ;
72[(ccA) the manner in which a copyright society may publish its Tariff Scheme under sub-section (1) of section 33A;
(ccB) the fee which is to be paid before filing an appeal to the Copyright Board under sub-section (2) of section 33A;
(ccC) the form of application for renewal of registration of a copyright society and the fee which may accompany
such application under sub-section (3A) of section 33 ;]
(cd) the conditions subject to which the copyright society may accept authorisation under clause (a) of sub-section
(1) of section 34 and the conditions subject to which owners of rights have right to withdraw such authorisation
under clause (d) of that sub-section;
(ce) the conditions subject to which a copyright society may issue licences, collect fees and distribute such fees
amongst owners of rights under sub-section (3) of section 34 ;
(cf) the manner in which the approval of the owners of rights regarding collection and distribution of fees, approval
for utilisation of any amount collected as fees and to provide to such owners information concerning activities in
relation to the administration of their rights under sub-section (1) of section 35 ;
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APPENDIX 1
(cg) the returns to be filed by copyright societies to the Registrar of Copyrights under sub-section (1) of section 36 ;]
(d) the manner of determining any royalties payable under this Act, and the security to be taken for the payment of
such royalties;
73[(da) the manner of payment of royalty under clause (j) of sub-section (1) of section 52 ;
74[***]
(e) the form of Register of Copyrights to be kept under this Act and the particulars to be entered therein;
(f) the matters in respect of which the Registrar of Copyrights and the Copyright Board shall have powers of a Civil
Court;
(g) the fees which may be payable under this Act;
(h) the regulation of business of the Copyright Office and of all things by this Act placed under the direction or
control of the Registrar of Copyrights.
75[(3)Every rule made under this section shall be laid, as soon as may be, after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that
the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as
the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.]
79. Repeals, savings and transitional provisions.-

The Indian Copyright Act, 1914 (3 of 1914), and the Copyright Act of 1911 passed by the Parliament of the United
Kingdom as modified in its application to India by the Indian Copyright Act, 1914 (3 of 1914), are hereby repealed.
(2) Where any person has, before the commencement of this Act, taken any action whereby he has incurred any
expenditure or liabilities in connection with the reproduction or performance of any work in a manner which at the
time was lawful or for the purpose of or with a view to the reproduction or performance of a work at a time when
such reproduction or performance would, but for the coming into force of this Act, have been lawful, nothing in this
section shall diminish or prejudice any rights or interests arising from or in connection with such action which are
subsisting and valuable at the said date, unless the person who, by virtue of this Act, becomes entitled to restrain
such reproduction or performance agrees to pay such compensation as, failing agreement, may be determined by
the Copyright Board.
(3) Copyright shall not subsist by virtue of this Act in any work in which copyright did not subsist immediately before
the commencement of this Act under any Act repealed by sub-section (1).
(4) Where copyright subsisted in any work immediately before the commencement of this Act, the rights comprising
such copyright shall, as from the date of such commencement, be the rights specified in section 14 in relation to the
class of works to which such work belongs, and where any new rights are conferred by that section, the owner of
such rights shall be-
(a) in any case where copyright in the work was wholly assigned before the commencement of this Act, the
assignee or his successor-in-interest;
(b) in any other case, the person who was the first owner of the copyright in the work under any Act repealed
by sub-section (1) or his legal representatives.
(5) Except as otherwise provided in this Act, where any person is entitled immediately before the commencement of
this Act to copyright in any work or any right in such copyright or to an interest in any such right, he shall continue to
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APPENDIX 1
be entitled to such right or interest for the period for which he would have been entitled thereto if this Act had not
come into force.
(6) Nothing contained in this Act shall be deemed to render any Act done before its commencement an infringement
of copyright if that Act would not otherwise have constituted such an infringement.
(7) Save as otherwise provided in this section, nothing in this section shall be deemed to affect the application of
the General Clauses Act, 1897 (10 of 1897), with respect to the effect of repeals.
1 The Act has been extended to Goa, Daman and Diu by Reg. 12 of 1962, sec. 3 and Sch.; to Dadra and Nagar Haveli
by Reg. 6 of 1963, sec. 2 and Sch. 1; to Pondicherry by Reg. 7 of 1963, sec. 3 and Sch. I; and brought into force in the
State of Sikkim (w.e.f. 27-4-1979) vide Notification No. S.O. 226 (E), dated 27th April, 1979, Gazette of India, Extra. Pt.
II, Sec. 3 (ii), p. 430.
2 Brought into force on 21st January, 1958.
3 The word "and" omitted by Act 38 of 1994, S. 2 (w.e.f. 10-5-1995).
4 Ins. by Act 38 of 1994, S. 2 (w.e.f. 10-5-1995).
5 Subs. by Act 38 of 1994, S. 2, for "architectural work of art" (w.e.f. 10-5-1995).
6 Subs. by Act 38 of 1994, S. 2, for sub-Cls. (v) and (vi) (w.e.f. 10-5-1995).
7 Ins. by Act 23 of 1983, S. 3 (w.e.f. 9-8-1984).
8 Subs. by Act 38 of 1994, S. 2, for Cl. (f) (w.e.f. 10-5-1995).
9 The words "on any medium produced through a process from which a moving image may be produced by any means"
omitted by Act 27 of 2012, S. 2 (w.e.f. 21-6-2012).
10 Ins. by Act 27 of 2012, S. 2 (w.e.f. 21-6-2012).
11 Subs. by Act 27 of 2012, S. 2 (w.e.f. 21-6-2012).
12 Subs. by Act 23 of 1983, S. 2, for "radio-diffusion" (w.e.f. 9-8-1984).
13 Ins. by Act 65 of 1984, S. 2 (w.e.f. 8-10-1984).
14 Subs. by Act 23 of 1983, S. 3, for Cl. (l) (w.e.f. 9-8-1984).
15 Subs. by Act 38 of 1994, S. 2, for Cl. (m) (w.e.f. 10-5-1995).
16 Subs. by Act 38 of 1994, S. 2, for Cls. (o), (p) and (q) (w.e.f. 10-5-1995).
17 Subs. by Act 49 of 1999, S. 2, for "data basis" (w.e.f. 15-1-2000).
18 Ins. by Act 27 of 2012, S. 2 (w.e.f. 21-6-2012).
19 Cl. (r) omitted by Act 38 of 1994, S. 2 (w.e.f. 10-5-1995).
20 Ins. by Act 65 of 1984, S. 2 (w.e.f. 8-10-1984).
21 Subs. by Act 38 of 1994, S. 2, for "record" (w.e.f. 10-5-1995).
22 Subs. by Act 49 of 1999, S. 2, for "data basis" (w.e.f. 15-1-2000).
23 Cl. (v) omitted by Act 23 of 1983, S. 3 (w.e.f. 9-8-1984).
24 Cl. (w) omitted by Act 38 of 1994, S. 2 (w.e.f. 10-5-1995).
25 Subs. by Act 38 of 1994, S. 2, for Cl. (x) (w.e.f. 10-5-1995).
26 Ins. by Act 27 of 2012, S. 2 (w.e.f. 21-6-2012).
28 Subs. by Act 38 of 1994, S. 3, for S. 3 (w.e.f. 10-5-1995).
30 Subs. by Act 27 of 2012, S. 3 (w.e.f. 21-6-2012) for the words "not less than two nor more than fourteen other
members".
31 Subs. by Act 27 of 2012, S. 3, for sub-section (2) (w.e.f. 21-6-2012).
Page 50 of 53
APPENDIX 1
32 The words "the Supreme Court or" omitted by Act 38 of 1994, S. 5 (w.e.f. 10-5-1995).
34 Subs. by Act 27 of 2012, S. 4, for "members, each Bench consisting of not less than three members" (w.e.f. 21-6-
2012).
35 Ins. by Act 38 of 1994, S. 6 (w.e.f. 10-5-1995).
36 Subs. by Act 38 of 1994, S. 6, for the proviso (w.e.f. 10-5-1995).
37 Subs. by Act 38 of 1994, S. 6, for "The Copyright Board" (w.e.f. 10-5-1995).
38 Subs. by Act 23 of 1983, S. sections 6, for "sections 480 and 482 of the Code of Criminal Procedure, 1898 (5 of 1898)"
(w.e.f. 9-8-1984).
40 Subs. by Act 38 of 1994, S. 2, for "architectural work of art" (w.e.f. 10-5-1995).
40a Subs. by Act 38 of 1994, S. 2, for "record" (w.e.f. 10-5-1995).
40b Subs. by Act 38 of 1994, S. 2, for "architectural work of art" (w.e.f. 10-5-1995).
42 Subs. by Act 49 of 1999, S. 3, for sub-Cl. (ii) (w.e.f. 15-1-2000).
43 Subs. by Act 27 of 2012, S. 5 (w.e.f. 21-6-2012).
44 Subs. by Act 27 of 2012, S. 5, for sub-clause (i) and (ii) (w.e.f. 21-6-2012).
45 Ins. by Act 27 of 2012, S. 5 (w.e.f. 21-6-2012).
46 Subs. by Act 27 of 2012, S. 5, for sub-clause (ii) (w.e.f. 21-6-2012).
47 The words "Indian Patents and" omitted by Act 23 of 1983, S. 3 (w.e.f. 9-8-1984).
48 Subs. by Act 27 of 2012, S. 6, for "Designs Act, 1911" (w.e.f. 21-6-2012).
49 Ins. by Act 23 of 1983, S. 8 (w.e.f. 9-8-1984).
50 Ins. by Act 27 of 2012, S. 7 (w.e.f. 21-6-2012).
51 Ins. by Act 27 of 2012, S. 8 (w.e.f. 21-6-2012).
52 S. 19 renumbered as sub-S. (1) thereof by Act 23 of 1983, S. 9 (w.e.f. 9-8-1984).
53 Ins. by Act 23 of 1983, S. 9 (w.e.f. 9-8-1984).
54 Subs. by Act 38 of 1994, S. 8, for sub-S. (2) (w.e.f. 10-5-1995).
55 Subs. by Act 27 of 2012, S. 9, for "royalty payable, if any" (w.e.f. 21-6-2012).
56 Sub-sections (8), (9) and (10) ins. by Act 27 of 2012, S. 9 (w.e.f. 21-6-2012).
57 Subs. by Act 38 of 1994, S. 9, for S. 19-A (w.e.f. 10-5-1995). Earlier S. 19-A was Ins. by Act 23 of 1983, S. 10 (w.e.f. 9-
8-1984).
58 Subs. by Act 27 of 2012, S. 10, for the words " Provided further that" (w.e.f. 21-6-2012).
59 Ins. by Act 27 of 2012, S. 10 (w.e.f. 21-6-2012).
60 Subs. by Act 27 of 2012, S. 11, for the words "the Registrar of Copyrights" (w.e.f. 21-6-2012).
61 Ins. by Act 27 of 2012, S. 11 (w.e.f. 21-6-2012).
62 The words and brackets "(other than a photograph)" omitted by Act 27 of 2012, S. 12 (w.e.f. 21-6-2012).
63 Subs. by Act 13 of 1992, S. 2, for "fifty years" (w.r.e. f. 28-12-1991).
64 Subs. by Act 13 of 1992, S. 2, for "fifty years" (w.r.e.f. 28-12-1991).
66 S. 25 omitted by Act 27 of 2012, S. 13 (w.e.f. 21-6-2012).
67 Ins. by Act 23 of 1983, S. 11 (w.e.f. 9-8-1984).
68 Subs. by Act 27 of 2012, S. 14, for the words "writing signed by him" (w.e.f. 21-6-2012).
69 Ins. by Act 38 of 1994, S. 10 (w.e.f. 10-5-1995).
Page 51 of 53
APPENDIX 1
70 Subs. by Act 27 of 2012, S. 15, for the words "sections 19 and 19A" (w.e.f. 21-6-2012).
71 Subs. by Act 27 of 2012, S. 15, for the words "sections 19 and 19A" (w.e.f. 21-6-2012).
72 Subs. by Act 27 of 2012, S. 16, for "any Indian work" (w.e.f. 21-6-2012).
73 Subs. by Act 23 of 1983, S. 2, for "radio-diffusion" (w.e.f. 9-8-1984).
75 Subs. by Act 27 of 2012, S. 16, for "licence to the complainant" (w.e.f. 21-6-2012).
76 Explanation omitted by Act 27 of 2012, S. 16 (w.e.f. 21-6-2012).
77 Sub-section (2) omitted by Act 27 of 2012, S. 16 (w.e.f. 21-6-2012).
78 Ins. by Act 23 of 1983, S. 12 (w.e.f. 9-8-1984).
79 Subs. by Act 27 of 2012, S. 17, for "Indian works" (w.e.f. 21-6-2012).
81 Ss. 31B, 31C and 31D ins. by Act 27 of 2012, S. 18 (w.e.f. 21-6-2012).
82 Ins. by Act 23 of 1983, S. 13 (w.e.f. 9-8-1984).
83 Ins. by Act 23 of 1983, S. 13 (w.e.f. 9-8-1984).
84 Subs. by Act 23 of 1983, S. 13, for "such application" (w.e.f. 9-8-1984).
85 Subs. by Act 23 of 1983, S. 13, for certain words (w.e.f. 9-8-1984).
86 Subs. by Act 23 of 1983, S. 13, for " Provided that no such licence" (w.e.f. 9-8-1984).
87 Subs. by Act 23 of 1983, S. 13, for "within seven years of the first publication of the work" (w.e.f. 9-8-1984).
88 Subs. by Act 23 of 1983, S. 13, for "he was unable to find" (w.e.f. 9-8-1984).
89 Subs. by Act 23 of 1983, S. 13, for "such authorisation to the publisher whose name appears from the work" (w.e.f. 9-8-
1984).
90 Subs. by Act 23 of 1983, S. 13, for "the application for the licence" (w.e.f. 9-8-1984).
91 Ins. by the Act 23 of 1983, S. 13 (w.e.f. 9-8-1984).
92 Ins. by the Act 23 of 1983, S. 13 (w.e.f. 9-8-1984).
93 Ins. by Act 23 of 1983, S. 14 (we.f. 9-8-1984).
94 Subs. by Act 38 of 1994, S. 11, for Chap. VII (w.e.f. 10-5-1995).
95 Subs. by Act 27 of 2012, S. 19, for the words " Provided further " (w.e.f. 21-6-2012).
96 Ins. by Act 27 of 2012, S. 19 (w.e.f. 21-6-2012).
97 Subs. by Act 27 of 2012, S. 19, for the words "owner of rights" (w.e.f. 21-6-2012).
98 Ins. by Act 27 of 2012, S. 19 (w.e.f. 21-6-2012).
1 S. 33A Ins. by Act 27 of 2012, S. 20 (w.e.f. 21-6-2012).
2 Subs. by Act 27 of 2012, S. 21, for the words "owner of rights" (w.e.f. 21-6-2012).
3 S. 34A omitted by Act 27 of 2012, S. 22 (w.e.f. 21-6-2012).
4 Subs. by Act 27 of 2012, S. 23, for "owners of rights" (w.e.f. 21-6-2012).
5 Subs. by Act 27 of 2012, S. 23, for "owners of rights" (w.e.f. 21-6-2012).
6 Sub-sections (3) and (4) ins. by Act 27 of 2012, S. 23 (w.e.f. 21-6-2012).
7 Subs. by Act 27 of 2012, S. 24, for "performing rights society" (w.e.f. 21-6-2012).
8 Subs. by Act 27 of 2012, S. 24, for "the copyright (Amendment) Act, 1994" (w.e.f. 21-6-2012).
9 Subs. by Act 38 of 1994, S. 12, for "RIGHT OF BORADCASTING AUTHORITIES" (w.e.f. 10-5-1995).
11 Subs. by Act 27 of 2012, S. 25, for "cl. (e)" (w.e.f. 21-6-2012).
13 Subs. by Act 49 of 1999, S. 4, for "twenty-five years" (w.e.f. 15-1-2000).
Page 52 of 53
APPENDIX 1
14 Sub-sections (3) and (4) omitted by Act 27 of 2012, s. 26 (w.e.f. 21-6-2012).

15 Ss. 38A and 38B inserted by Act 27 of 2012, S. 27 (w.e.f. 21-6-2012).
17 Subs. by Act 27 of 2012, S. 28, for S. 39A (w.e.f. 21-6-2012).
18 See the International Copyright Order, 1999.
19 Ins. by Act 27 of 2012, S. 29 (w.e.f. 21-6-2012).
20 Ins. by Act 49 of 1999, S. 5 (w.e.f. 15-1-2000).
21 Ins. by Act 27 of 2012, S. 30 (w.e.f. 21-6-2012).
22 See Copyright (International Organisations) Order, 1958.
23 Ins. by Act 49 of 1999, S. 6 (w.e.f. 15-1-2000).
24 Added by Act 23 of 1983, S. 16 (w.e.f. 9-8-1984).
25 Subs. by Act 27 of 2012, S. 31, for "relation to any goods" (w.e.f. 21-6-2012).
26 Subs. by Act 27 of 2012, S. 31, for "section 4 of the Trade and Merchandise Marks Act, 1958" (w.e.f. 21-6-2012).
27 Ins. by Act 23 of 1983, S. 17 (w.e.f. 9-8-1984).
28 Subs. by Act 38 of 1994, S. 16, for sub-Cl. (ii) (w.e.f. 10-5-1995).
29 The words "(except for the private and domestic use of the importer)" omitted by Act 65 of 1984, S. 3 (w.e.f. 8-10-
1984).
30 Subs. by Act 38 of 1994, S. 16, for the proviso (w.e.f. 10-5-1995).
31 Subs. by Act 27 of 2012, S. 32, for cl. (a) (w.e.f. 21-6-2012).
32 Ins. by Act 38 of 1994, S. 17 (w.e.f. 10-5-1995).
33 Ins. by Act 49 of 1999, S. 7 (w.e.f. 15-1-2000).
34 Subs. by Act 27 of 2012, S. 32, for cls. (b) to (j) (w.e.f. 21-6-2012).
35 Subs. by Act 38 of 1994, S. 17, for cls. (j) and (k) (w.e.f. 10-5-1995).
36 Subs. by Act 27 of 2012, S. 32, for cl. (n) (w.e.f. 21-6-2012).
37 Subs. by Act 27 of 2012, S. 32, for the words "public library" (w.e.f. 21-6-2012).
38 Subs. by Act 49 of 1999, S. 7, for "fifty years" (w.e.f. 15-1-2000).
39 Subs. by Act 38 of 1994, S. 17, for Cl. (s) (w.e.f. 10-5-1995).
40 Ins. by Act 27 of 2012, S. 32 (w.e.f. 21-6-2012). Earlier cl. (w) omitted by Act 38 of 1994, s. 17 (w.e.f. 10-5-1995).
41 Subs. by Act 27 of 2012, S. 32, for the words "dramatic or" (w.e.f. 21-6-2012).
42 Ins. by Act 38 of 1994, S. 17 (w.e.f. 10-5-1995).
43 Cls. (zb) and (zc) inserted by Act 27 of 2012, S. 32 (w.e.f. 21-6-2012).
44 Ins. by Act 65 of 1984, S. 4 (w.e.f. 8-10-1984).
46 S. 52B omitted by Act 27 of 2012, S. 33 (w.e.f. 21-6-2012). Earlier S. 52B was inserted by Act 38 of 1994, S. 18 (w.e.f.
10-5-1995).
48 Ins. by Act 38 of 1994, S. 19 (w.e.f. 10-5-1995).
49 Subs. for certain words by Act 27 of 2012, S. 35 (w.e.f. 21-6-2012).
51 The words "which is done before the expiration of the term of copyright" omitted by Act 27 of 2012, S. 36 (w.e.f. 21-6-
2012).
52 The words "other than the right to claim authorship of the work" omitted by Act 27 of 2012, S. 36 (w.e.f. 21-6-2012).
53 Subs. by Act 23 of 1983, S. 20, for "the Specific Relief Act, 1877 (1 of 1877)" (w.e.f. 9-8-1984).
Page 53 of 53
APPENDIX 1
54 Subs. by Act 23 of 1983, S. 21, for "in section 42 of the Specific Relief Act, 1877 (1 of 1877)" (w.e.f. 9-8-1984).
55 Ins. by Act 38 of 1994, S. 21 (w.e.f. 10-5-1995).
56 Subs. by Act 65 of 1984, S. 5, for "shall be punishable with imprisonment which may extend to one year, or with fine, or
with both" (w.e.f. 8-10-1984).
57 Ins. by Act 65 of 1984, S. 6 (w.e.f. 8-10-1984).
58 Ins. by Act 38 of 1994, S. 22 (w.e.f. 10-5-1995).
59 Ins. by Act 38 of 1994, S. 23 (w.e.f. 10-5-1995).
61 Ins. by Act 65 of 1984, S. 7 (w.e.f. 8-10-1984).
62 Subs. by Act 65 of 1984, S. 8, for "one year, or with fine, or with both" (w.e.f. 8-10-1984).
63 Ss. 65A and 65B inserted by Act 27 of 2012, S. 37 (w.e.f. 21-6-2012).
64 Ins. by Act 27 of 2012, S. 38 (w.e.f. 21-6-2012).
65 Ins. by Act 65 of 1984, S. 9 (w.e.f. 8-10-1984).
67 Subs. by Act 25 of 1983, S. 22, for "a Presidency Magistrate or a Magistrate of the first class" (w.e.f. 9-8-1984).
68 See the Copyright Rules, 1958.
69 Subs. by Act 27 of 2012, S. 39, for cl. (a) (w.e.f. 21-6-2012).
70 Ins. by Act 27 of 2012, S. 39, (w.e.f. 21-6-2012).
71 Ins. by Act 38 of 1994, S. 24 (w.e.f. 10-5-1995).
72 Ins. by Act 27 of 1992, S. 39 (w.e.f. 21-6-2012).
73 Cls. (da) and (db) inserted by Act 38 of 1994, S. 24 (w.e.f. 10-5-1995).
74 Cl. (db) omitted by Act 27 of 1992, S. 39 (w.e.f. 21-6-2012).
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Date and Time: 07 July 2020 01:31:00 IST

Job Number: 120557079

1. CHAPTER I - Introduction to Copyright Law

Alka Chawla: Law of Copyright > Alka Chawla: Law of Copyright

Chapter I Introduction to Copyright Law

2. The Concept of Intellectual Property

(i) Copyright law is further divided into two categories:

3. General Principles Governing Copyright Law

(a) Statutory right

(b) Formalities for obtaining copyright

(c) Functions of modern copyright system

(d) Balancing act under copyright system

(e) Subject matter of copyright protection

India is given under section 13 of the Indian Copyright Act.

(f) Copyright vests in original work

(g) Copyright does not vest in an idea

(h) Copyright and independent creation

(i) Copyright is a bundle of rights

(c) The distribution right

(j) Split copyright

(k) Negative right

(l) A right with limitations

Copyright is not an absolute right of the owner. It is subjected to following limitations:

(m) Concurrent copyright

(n) Overlap between copyright and industrial designs

(o) Civil and criminal remedies and border measures

(p) Eligibility for copyright protection in India

7. Copyright vests automatically in a work. The requirement of registration is optional.

10. International conventions recognize three neighbouring rights:

Alka Chawla: Law of Copyright > Alka Chawla: Law of Copyright

Chapter II International Conventions

1. Emergence and Genesis of Copyright Law

2. Global Harmonisation of the Copyright Law

Berne Convention for the Protection of Literary and Artistic Works

The Convention rests on three basic principles:

Universal Copyright Convention, the Geneva Act, 1952

The TRIPS Agreement is divided into seven Parts .

WIPO Copyright Treaty, 1996

The WCT provides for certain new rights also :

3. Special Conventions in the Field of Neighbouring Rights

2. It permits exceptions for private use, 66 etc.

3. It lays down a minimum term of protection of 20 years. 67

WIPO Performances and Phonogram Treaty, 1996 (WPPT)

Beijing Treaty on Audiovisual Performances, 2012

33 See S.M. Stewart, supra , note 1 at p 113.

Alka Chawla: Law of Copyright > Alka Chawla: Law of Copyright

Chapter III Development of Copyright Regime in India

2. The Copyright Act, 1914

3. The Copyright Act, 1957

4. The Amendments of 1983

5. The Amendments of 1984

In an effort to amend the Act, it was stated:

6. The Amendments of 1994

7. THE Amendments of 1999

8. THE Amendments of 2012

(a) Cinematograph films

(b) Compulsory and statutory licenses

(c) Compliance with WCT and WPPT

(d) Moral rights of authors and performers