Chapter IV

Copyright Law in India: An Overview of the Indian

Copyright Act 1957 and the Amendment Act of

2012
4.1 EVOLUTION OF COPYRIGHT LAW IN INDIA

Copyright legislation is said to be part of the wider body of law known as intellectual
property. In ancient period authors wrote for fame and recognition and it was not their bread
and so the question of copyright never arose. The need for copyright protection arose after the
introduction of printing as it enabled reproduction of books in large quantities. It came to be
regarded as a property right and hence required protection. The development of copyright law
in India is closely related to the evolution of the same in the United Kingdom. In England, in
the year 1534 the Crown provided certain kind of protection to stationers (the forefathers of
the modern publishers)”1 against importation of foreign goods. A Charter was obtained by
them in the year 1556 which provided for the destruction of books which were published
flouting the existing proclamation. This can be said to be the first ever kind of licensing
system which required lawfully printed books to be entered in the register.

In India the first copyright law that was applied by the High Court of Bombay in MacMillan
vs Khan Bahadur Shamsul Ulama Zaka2 was the English Copyright Act 1842. After that the
Copyright Act, 1911 of England was made applicable to the Indian territory too. In 1914, the
Indian Copyright Act was passed into a law. This Act consisted of around 15 sections. It took
a bold step by introducing criminal sanctions for copyright infringement. Section 4 of the Act
introduced the ‘sole right’ concept. This granted the author the right to produce, reproduce,
perform or publish a translation of the work until a period of ten years from the date of
publication of the work. This Act was a modified version of the Copyright Act, 1911. The
Act provided that registration of the work as not necessary and the right of the author came

1
Dr.Vikas Vashishth , “Law and practice of Intellectual property in India”, Published by Bharath Law House ,II
Ed, Pg 751 http://shodhganga.inflibnet.ac.in/bitstream/10603/20952/13/13_chapter_7.pdf
2
ILR.(1895) 19 Bom. 557
141
into existence as soon as the work was created. Protection as per the Act was granted to the
material form in which it was expressed. To be eligible for protection, the work, had to be
original. The Act granted protection for a period of the lifetime of the author and 25 years
after his death. It also granted a specific term for posthumous and government works, etc.
The Act also laid down provisions regarding the infringement and remedies of copyright.
This Act continued till 1957 until it was revamped yet again. The revised Act i.e., Copyright
Act 1957 came into force in the year 1958. The Act ushered in, the Copyright Office and
Copyright Board in order to smoothen the progress of the registration process. It also
provided for copyright term, assignment and licensing of copyright including compulsory
licensing in certain circumstances. After India became a signatory to international treaties
many amendments were made to fall in tune with them. The swift rise in the field of music,
technology, communication, etc., called in for an amendment to the Act. The Copyright
(Amendment) Act, 1999 was passed by both the houses of the Indian Parliament, and signed
by the President of India on December 30, 1999. The 1994 Amendment Act has introduced
certain new concepts into the Act, the most important being the formation of Copyright
Societies by various authors. Although the existing Act provides for performing rights
societies, the amendment included more detailed provisions for the formation, working and
registration of Copyright Societies which will be more effective in collectively protecting the
rights of the authors instead of leaving protection to the individual author, who may not have
the necessary expertise to protect his right effectively. These provisions are at par with that of
the collective administration of the authors’ rights obtained in other countries. India is a
signatory to two international copyright conventions viz., the Berne Convention and the
Universal Copyright Convention. By virtue of the provisions contained in these two
multilateral Conventions, the works of Indian nationals are entitled to copyright protection in
all the countries which are signatories to these two Conventions. Foreign authors from the
member countries are entitled to similar Copyright Protection in India which is accorded to
the works of Indian authors under the domestic law. India is also signatory to some other
conventions such as the “Convention for Protection of Producers of Phonogram against
Unauthorized Duplication” of their PHONOGRAMS and convention relating to the
distribution of program carrying signals transmitted by satellites, and also the Rome
Convention for Protection of Performers, Producers, Phonogram and Broadcasting
Organization. These conventions are administered by WIPO and UNESCO, who are

142
specialized agencies of the United Nations.3 India’s copyright law, laid down in the Indian
Copyright Act, 1957, fully reflects the Berne Convention on Copyrights, to which India is a
party. Additionally, India is a party to the Geneva Convention for the Protection of Rights of
Producers of Phonograms and to the Universal Copyright Convention. India is also an active
member of the World Intellectual Property Organisation (WIPO), Geneva and UNESCO4 and
it is also a signatory to the WIPO Copyright Treaty(WCT) 1996 and WIPO Performances and
Phonograms Treaty(WPPT) 1996.

The 1957 Act underwent some major amendments. The Amendment of 1983 incorporated the
various provisions relating to compulsory license “It also provided adequate protection for
author’s rights. Provisions relating to the reproduction of any edition of foreign literary,
scientific or artistic work for the purpose of systematic instructional activities.”5 This
Amendment incorporated section 32A for issuing compulsory licenses for relating to the
reproduction of any edition of foreign literary, scientific or artistic work whether or not the
work is Indian for the purpose 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 publication6. Section
31A 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 specified period so as to enable the owner of
copyright or his heirs, executors or the legal representatives to claim such royalty at any time.

Again in the year 1984, the Act was amended and it mainly aimed at curbing piracy that is
becoming a threat. Technological advancement was acting as a stimulant for piracy. It was
emerging as a global threat and almost all the countries were taking stringent measures to
curb it. “There existed three kinds of piracy: a) Piracy of the printed word; b) Piracy of sound

3 http://www.singhania.com/lawguide
4
http://www.saarcnet.org/newsaarcnet/countryprofile/India/india20.htm
5 Dr.G.B Reddy ‘s Intellectual Property Rights and the Law , Reprint Edition 2013, published by Bharat Gogia
for M/s Gogia Law Publications Pg 82
6
Copyright Act, 1957, 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.
143
recording; c) Piracy of cinematographic films7”These piracy activities incurred great loss to
the government compelling it to bring about restrictive and deterrent measures through the
Copyright Act. The object of these pirates is to make money and avoid payments of
legitimate taxes and royalty. It is estimated that 400 to 500 titles are pirated every year in
India and on each of the pirated titles, the loss to the government is Rs.11,000/-8 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 several crores of
rupees. In addition, because of 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.9 In these circumstances the
copyright Act 1957 was amended in 1984 by making punishment for such offences more
stringent.10 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
11
the definition of “cinematograph” film and “computer programs” to the definition of
“literary work”12 and a new definition of “duplicating machine”13 was also inserted into the
Act. This was a ground-breaking amendment which triggered many a number of writ
petitions seeking a stay on the amending laws. The following table will give a clear picture of
the rate at which piracy was increasing in India”14 in 1995 and later on it decreases from 1995
to 1999.

7 . Dr.G.B Reddy ‘s Intellectual Property Rights and the Law , Reprint Edition 2013, published by Bharat Gogia
for M/s Gogia Law Publications Pg 84
8
The Bill of 1984 its proposed Objects and Reasons for Amendments
9
Statement of Objects and Reasons annexed to the Copyright Amendment Bill,1984.
10
The Copyright Act 1957, Chapter XIII, dealing with offences.
11
Copyright Act ,1957,section 2(f)
12
Ibid , Section 2(o)
13
Ibid, Section 2(hh)
14 http://www.iipa.com/rbc/2000/INDIA_2000.PDF
144
 \Table 3.1

INDUSTRY 1999 1998 1997 1996 1995

Loss Level Loss Level Loss Level Loss Level Loss Level
Motion Pictures 66.0 80% 66.0 80% 66.0 80% 66.0 85% 58.0 99%
Sound Recordings / 6.0 40% 6.0 30% 6.0 40% 7.0 30% 10.0 30%
Musical Compositions
Computer Programs: 160.3 61% 158.0 65% 148.7 69% 182.4 78% 114.6 78%
Business Applications
Computer Programs: 42.8 86% 36.8 84% 35.9 82% 31.4 78% 25.8 76%
Entertainment Software
Books 35.0 NA 30.0 NA 22.0 NA 25.0 NA 25.0 NA
TOTALS 310.1 296.8 278.6 311.8 233.4
After the introduction of certain specific provisions in the Copyright Act 1957 as per
NASSCOM’s estimates, “the rate of software piracy in India has reduced from 76% in 1993
to 60% in March 1997.”15 The 2008 ‘Special 301 Reports’16 are published annually by the
office of the United States Trade Representatives (USTR) to examine ‘in detail the adequacy
and effectiveness of intellectual property rights protection’ in countries around the globe.
India has faced considerable pressure to amend and enforce its copyright laws, more to the
needs of the United States rather than reflecting the needs of its population, businesses and
innovation. Its concern is with a large number of subjects including the backlog and
inadequacy of India’s legal system, lack of enforcement of IP protections for media oriented
products like ‘motion pictures, music, software, books and video games’, need for stronger
protection of copyrights, trademarks and patents, optical media and procedural inadequacies.
In 2004 the USTR reported, ‘copyright piracy is rampant, and the U.S. copyright industry
estimates that lost sales resulting from piracy in India of U.S. motion pictures, sound
recordings, musical compositions, computer programmes, and books totaled approximately
$500 million in 2004.’17 The United States expresses the reasons for concern in India – the
challenge posed by Indian pirated and counterfeit goods entering American markets. It
expresses its concern for lack of piracy enforcement as ‘‘growing concern for U.S. copyright
industries, especially given the pirated imports are entering the market from Southeast Asia.
A study published in March 2009 by United States-India Business Council (USIBC) and
prepared by Ernst and Young India, claims that as much as Rs.16, 000 crores are lost due to

15 http://www.stpghy.soft.net/sellproducts.htm
16
https://ustr.gov/sites/default/files/asset_upload_file553_14869.pdf
17
http://cis-india.org/a2k/blogs/piracy-studies-india .The Centre for Internet and Society (CIS) is a non-profit
organisation that undertakes interdisciplinary research on internet and digital technologies from policy and
academic perspectives.
145
piracy. Alongside, as many as 80,000 jobs are lost directly as a result of theft and piracy,
afflicting India’s entertainment industry. This report was commissioned as a part of the
USIBC–FICCI Bollywood–Hollywood initiative and covered film, music, television and
video games.18 Business Software Alliance, in partnership with a market analysis firm IDC,
published their annual study on global trends in software piracy in May 2009. Sixth in its
annual series, the report critically blames the Asia Pacific region, especially India and China,
for the growing levels in piracy, despite countries bringing down their piracy rates. The report
says, In 2008, the rate of PC software piracy dropped in slightly more than half (57) of the
110 countries studied, remained the same in nearly one third (36), and rose in just 16.
However, the worldwide PC software piracy rate rose for the second year in a row, from 38
per cent to 41 per cent, mainly because PC shipments grew faster in high-piracy countries
such as China and India, overwhelming progress in these and other countries.19 In addition, it
also makes an India specific point by highlighting India’s piracy trends,
‘India’s rate has dropped six points in five years, despite its sprawling PC market, of which
consumers and small businesses account for 65 per cent. The MPA Office in India named
Motion Pictures Distributors Association, along with a DtecNet a global anti-piracy
company, released a study on the Internet piracy trends in India. This 2008 report places
India as the fourth largest global hub of online film piracy, behind United States, Britain and
Canada, with Delhi, Bangalore and Mumbai accounting for the major share of illegal
downloads.20 In a recent case Autodesk Inc v Arup Das21 the court appointed a local
commissioner because a judge normally, cannot personally step out of the precincts of his
court to see for himself the situation prevailing at the relevant site. The court held that in the
matters involving allegations of infringement of intellectual property rights, the execution of
the local commissioner and the report furnished by the commissioner assume greater
significance particularly in the case of software piracy and infringement.

The Amendment of 1994 was a result of non-effectiveness of the provisions relating to

piracy that was incorporated in the 1984 amendment. A working group was set up to study
the provisions of the existing Act and suggest amendments which can fill in those lacunae.
The amendment of 1994 provided for a) Performer’s rights protection which included any

18
http://cis-india.org/a2k/blogs/piracy-studies-india
19
http.//global.bsa.org/global piracy 2008/pr/pr_ asia
20
http ://cis-india.org/a2k/blogs/piracy-studies-india
21
2014(2) RAJ 235 (Del)
146
live visual or artistic presentation made by one or more than one performers;
b) Introduction of copyright societies with enhanced powers; c) Assignment of copyright by
an author or artist to protect the interest of both; and d) Protection of computer programs,
cinematographic films and sound recordings. Although the existing Act provides for
performing rights societies, the amendment included more detailed provisions for the
formation, working and registration of copyright societies which will be more effective in
collectively protecting the rights of the authors instead of leaving protection to the individual
author, who may not have the necessary expertise to protect his right effectively. 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. These provisions are at par with that of the collective administration of the
authors’ rights obtaining in other countries.

The Act was again amendment in 1999, it aimed at increase in the term of copyright from 25
to 50 years as required by TRIPS. It also amended the definition of literary work in the back
drop of computer programs. “It defines “computer program” as a set of instructions expressed
in word 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.”22 In the case
of a computer program, copyright means to do or authorize the doing of any of the following
acts –i) reproducing the work in any material form including the storing of it in any medium
by electronic means; ii) issuing copies of the work to the public not being copies already in
circulation; and iii) selling or giving on commercial rental a copy of the work and because
“literary work” as defined includes computer program, tables and compilations and computer
databases, copyright in a computer program subsists for the lifetime of the author and sixty
years. The amendment also incorporated in the Act as not to constitute infringement with
respect to computer programs. Copyright protection is automatic from the moment the work
is embodied in some medium like ROM, Magnetic Tape, diskette or paper. New provisions
relating to broadcasting organizations and performers and performers in other countries were
introduced. Certain powers to restrict the rights of foreign broadcasting organizations were
also introduced. Rental Right23 was introduced in case of computer programes to strengthen

22 http://www.naukri.com/lls/copyright/software.htm
23
Section 14 (1) (b) of the Copyright Act 1957
147
the right of reproduction of authors of computer programs in accordance with WCT, 1996.24
A new provision25 was inserted which gave power to the Central Government to apply
Chapter VI of the Act dealing with the rights of broadcasting organizations and of performers
to broadcasting organizations 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 organization and
performers, if it appears to the government that such a foreign country does not give or has
not undertaken to give adequate protection to rights of broadcasting organization or
performer of our country.

The 2012 Amendment was made to make the Indian Copyright Law compliant with the
Internet treaties namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT). The 2012 amendment made many author friendly amendments
to streamline business practices, special provisions for the disabled, and digital rights
management. This amendment introduced changes in certain areas viz., the definition of
‘cinematograph films’26 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.27 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. Section 14 (1)(d) dealing with rights of copyright owner in a
cinematograph film has been redrafted with a few additions and deletions. The word “hire is
28
replaced by “commercial rental” 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

24
WCT, 1996, Article 7
25
Section 40A of 1957 the Copyright Act 1957
26
Ibid section 2(f)
27
Ibid section 2(xxa)
28
Ibid section 2(fa)
148
with respect to the film but even with respect to the literary, dramatic, musical or artistic
works incorporated in the film.29 The amendment of 2012 has added a proviso to section 17
whereby, the authors of literary, dramatic, artistic and musical works continue to have
copyrights 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
30
distribution of royalty. 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.31 A new section 38A is incorporated 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.32Further the amendment made changes to compulsory and
statutory licenses. Now the provision for compulsory license in case of works withheld from
public is extended to foreign works and is no more limited to Indian works.33 Prior to 2012
Compulsory license in case of orphan works could be issued only in case of unpublished
works. Then the provision has been extended to published orphan works as well, whether
Indian or foreign.34 A new section is inserted for providing 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

29
Ibid, section 17(b)
30
Ibid, section 18(9)
31
Ibid, section 38(4)
32
Ibid, second provision to section 33(1)
33
Ibid, section 31A
34
Ibid, section 31A
149
will be different for radio and television broadcasting. A new section 31C is inserted which
makes statutory licenses for cover versions more difficult. A cover version can now be made
after five years unlike two years previously. The person making 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 it is allowed only “if it
is technically necessary for the purpose of making the sound recording”. In order to comply
with the WCT and WPPT the right of reproduction has been clarified to extend to storing of
work in any medium by electronic or other means.35 However some safe harbor provisions
have been provided for service providers by covering transient or incidental storage under
fair dealing provisions.36 The word ‘hire’ is substituted by “commercial rental” in all relevant
provisions except section 51. A new definition of “commercial rental”37 is introduced. A new
definition for “Right Management Information”38 is inserted and exclusive rights for
performers have been added to make the provisions compliant with WPPT39. Further 2012
amendment is made relating to moral rights of authors and performers. Now the legal heirs of
the authors have been granted the right to paternity and right to integrity even after the expiry
of the term of copyright.40 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.41
The changes were made in administrative machinery, now 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.42 The changes are made with respect to term of
copyrights for photographs. Now the term is specified to be sixty years from the death of the
author and not from the date of the publication.43 A new section 33A is inserted which
mandates all Copyright Societies to publish its tariff scheme. Any person aggrieved by the

35
Ibid, section 14
36
Ibid, section 52(1)(b) and section 52(1)(c)
37
Ibid ,section 2(fa)
38
Ibid, section 2(xa)
39
Ibid ,section 38A
40
Ibid,section 57
41
Ibid,Explanation to section 38B.
42
Ibid , section 11
43
Ibid , section 22
150
scheme may appeal to the Copyright Board. Further Section 19A is amended by insertion of
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 terms and conditions of assignment including any
consideration to be paid for the enjoyment of the rights assigned. Section 21 regarding
relinquishment of copyright is amended and now copyright can be relinquished by way of
public notice also and not only by notice to the Registrar of Copyright. Section 52(1)(a)
relating to fair dealing is amended and now ambit of fair dealing is widened. The law earlier
dealt only with fair dealing rights with respect to literary, dramatic, musical or artistic works.
Now it covers all works except (computer programs) like sound recordings and
cinematograph films. This will allow persons to make personal copies of songs and films,
make copies for research or to use film clips in class.

4.2 SALIENT FEATURES OF THE 1957 COPYRIGHT ACT

The governing law on copyright in India is the Copyright Act 1957 amended in 2012 and is
supplemented by Copyright Rules 1958 earlier and now it is Copyright Rules, 2013 for
procedural aspects. Copyright is a fundamental aspect of intellectual property law that is
vitally important, not only with respect to works authored by individuals, but for the myriad
types of works produced by companies of all sizes.44 According to a study conducted by the
Ministry of Human Resource Development and Department for Secondary Education and
Higher Education, the Copyright “ensures certain minimum safeguards of the rights of
authors over their creations, thereby protecting and rewarding creativity”. Creativity being
the keystone of progress, no civilized society can afford to ignore the basic requirement of
encouraging the same. Economic and social development of a society is dependent on
creativity. The protection provided by copyright to the efforts of writers, artists, designers,
dramatists, musicians, architects and producers of sound recordings, cinematograph films and
computer software, creates an atmosphere conducive to creativity, which induces them to
create more and motivates others to create. The Copyright Act of 1957 was a full-fledged Act
dealing with various aspects of copyright. It was aimed at granting protection to the creative
talents of the people. As held in Mannu Bhandari v Kala Vikas Pictures Pvt Ltd and

44 http://www.ladas.com/Patents/Computer/CopyrightFundamentals.html

151
Another45 ‘enrichment of culture is of vital interest to each society. Law protects this social
interest. The Act was enacted to check piracy. In C. Cunniah and Co & Ors v Balraj and Co
& Anr46 the court held that it was well established in order to obtain copyright protection for
literary, domestic, musical and artistic works, that the subject dealt need not be original nor
the ideas expressed be something novel. The expenditure of original skill or labor in
execution is of prime importance rather than originality of thought. In Kartar Singh Giani v
Lada Singh & Ors47 the court held that ‘Copyright’ means the sole right to produce or
reproduce the work of any substantial part thereof in any material form whatsoever. The
nature of these rights depends upon the category of work. But one right which is common to
all works is the right to reproduce or make copies of the work. Copyright is the legal
protection given to the creator of an original work. It is the legal term used to describe the
rights given to creators for their literary and artistic works. The Delhi High Court in Hawkins
Cookers Ltd. v Magicook Appliances Co48., explained the main object of the Copyright Act is
it gives protection to the owner of copyright from dishonest manufacturers who try to create
confusion in the minds of purchasing public that infringed products are actually of the owner
of copyright. The statutory provisions are meant to discourage dishonest manufacturers from
trading or cashing upon the goodwill and by protecting the reputation of the owner of
copyright who has earned it over a period of time by way of incurring expenses on
advertisement and by extensive sales.

The Copyright Act 1957 is the primary legislation dealing with protection of copyright in
India. It extends to whole of India. It contains total 79 sections and one has to look for
procedural aspects into Copyright Rules 1958 and 2013. (1)The first chapter of the Act,
Section 2 deals with definitions of various terms like literary, dramatic, musical, artistic
works, a cinematograph film; Communication to the Public, a sound recording, author,
Adaptation, Broadcast, Computer Program, Copyright Society, Exclusive licence, Indian
work, Government work , engravings, Infringing copy, lecture, Performance, Performer,
Plate, Photograph, reprography, Sculpture, Joint authorship, Composer and architecture etc.
(2) Creation of a Copyright Office and a Copyright Board to facilitate registration of
Copyright and to settle certain kinds of disputes arising under the Act and for compulsory

45 AIR 1987 Del 13

46 AIR 1961 Mad 111
47 AIR 1934 Lah 777(DB)
48
AIR 2003 Del.13
152
licensing of Copyright. (3) Provisions to determine the first ownership of copyright in various
categories of works. (4) Term of Copyright for different categories of works (5) Provisions
relating to assignment of ownership and licensing of copyright including compulsory
licensing in certain circumstances.(6) Provision on the relating to performing right
societies.(7) Broadcasting rights.(8) International Copyright.(9) Definition of Infringement of
Copyright.(10) Exceptions to the exclusive right conferred on the author or acts which do not
constitute infringement. (11) Author,s special rights (12) Civil and Criminal remedies against
infringement. (13) Remedies against groundless threat of legal proceedings.

4.2.1 Definitions under the Act

Section 2(a) deals with “adaptation” which means a) 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;49 (iv) in relation to a musical work, any arrangement or transcription of
50
the work; and (v) in relation to any work, any use of such work involving its re-
arrangement or alteration; for example if A writes a novel in English in which he has a
copyright . He (A) assigns his right of making an adaptation to B who, converts the work of
A into a drama to be performed in a theatre. B 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 A. Section 2(a)(iii) deals with abridgement which is said to be
an adaptation of literary work. 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. It was held by Lord Atkinson in Macmillan & Co.v Cooper 51. A valid abridgement

49
Omitted by Act 38 of 1994.w.e.f 10-5-1995
50
Ins. by Act 38 of 1994, w.e.f. 10-5-1995
51
AIR 1924 PC 75,LR 51 1A 109. Lord Atkinson quoted a passage from Copinger’s Law of Copyright
published in 1904 and 1915 as “To constitute a true and equitable abridgement, the entire work must be
preserved in its precise import and exact meaning. The act of abridgement is an exertion of the individually
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
153
involves reproducing the meaning and substance of the original work in a reduced volume.52
According to section 2(a)(iv) Adaptation in relation to musical work is “any arrangement or
transcription of the work”. Transcription means ‘arrangement of a musical composition for
some instrument or voice other than the original.’ Adaptation of musical work is protected
under section 14(a)(vi). When can an adaptation becomes infringement? the introduction of
additions and variations to the appropriate music may adapt it to a different purpose from that
of the original; but if the adaptation can be recognized by the ear of the average person as
substantially the same as the original, it is the infringement of the copyright. Even a person
untrained in music when he hears it again, through the original air has been modified, either
by adapting the music for dancing, or by transferring it from the instrument to another, since
the original subject has not been altered. The publication of any music which absorbs the
merit of the original air, although adapted to a different use or art, is a piracy, even though
only a part of the original is taken.53 Section 2(b) defines the work of architecture, any
building or structure having an artistic character or design, or any model for such building or
structure54; The architectural work is confined to artistic character and design and does not
extend to processes or methods of construction.” Section 2(c) Artistic work is defined as 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; an architectural work of
art; and any other work of artistic craftsmanship. Any colour scheme or get up or lay out or
arrangement of any alphabets or features is undoubtedly an artistic work. The artistic work or
the colour scheme get up, lay out of arrangement of distinctive features including the style of
the letters or alphabets confer the copyright upon the owner and thereby entitles him to
protect the same by way of statutory remedy provided under the Copyright Act55 . In a recent
56
case Make My Trip(India) Pvt.Ltd v Make My Tours Pvt.Ltd &Ors the defendants in their
course of business used the marks of the plaintiff and are virtually identical to the plaintiff’s

from that of the original. To make such an abridgement requires the exercise of mind, labour, skill and
judgement 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 abridgement as the court would recognize as sufficiently to protect
the author. The cases referred to in support of the statement were Lamb v. Evans(1893) 1 Ch.219 and Walter v.
Lane(1900) AC 539.
52
Radhabinod Pal , in World Copyright l
53
LAL’S Commentary on the Copyright Act ,1957 , 5th Edition 2013,Published by Delhi Law House , p.40-41
54
Subs. by Act 38 of 1994, w.e.f. 10-5-1995
55
Glaxo India Ltd.v.Akay Pharma Pvt.Ltd., 2002 (2) Raj.275.
56
2015(62) PTC 441(Del)

154
well known MMT marks, also made colourable imitation of the MMT logos. Both the parties
are providing identical services and defendants are deemed to have been aware of the
goodwill and reputation of the plaintiff in the MMT marks and MMT logos. These marks and
logos of the plaintiff are identified and associated in the public mind with the plaintiff. The
defendant’s use and promotion of virtually identical impugned marks for identical services
creates a false sense of affiliation or collaboration and such use by the defendant is likely to
cause confusion and deception and is bound to mislead the public to believe that the source of
the defendant’s services is that of plaintiff. In another case Microfibres, Inc v Giridhar and
Company,57 the copyright in artistic work applied to upholstery fabrics was registered in USA
by the plaintiff company incorporated in USA under that country‘s laws. The grievance of the
plaintiff was that the defendant Indian company copied the designs and artistic work of
plaintiff and passed off the same as their own work. The Delhi High Court on appreciation of
facts and law, held that the plaintiff company was not entitled to the relief sought by it, as the
designs were not registered under the Designs Act, 2000 even though the same was done
under the U.S.Law.58 In another case in Fortune Films International v Dev Anand59 and
others a question arose as whether a cine artist had a separate and co-existing copyright in his
work in the film. In this case, Fortune films, producers of Hindi films entitled “Darling
Darling” engaged the services of a veteran film actor, Devanand, for the leading role in the
said film. In 1974, a written agreement was entered into between producers and the cine
artist, which recorded that copyright in his “work” in the film would vest in Dev Anand until
certain conditions had been met, including payment of Rs.70,00,00 to the artist and thereafter
the copyright was to be transferred to the producers. After the film was completed and
released in the territories specified in the agreement as well as in the East Punjab territory, the
cine artist objected on the ground of breach of his right under the agreement. The issues
before the Bombay High court were whether the words “copyright” therein in the agreement
refer to the work of cine artist in the picture or to the picture and second was whether the
performance of a cine artist in the film would be a ‘work’ protected by the Copyright Act
1957. It was held that on the reading of the language the word “therein can only refer to’ to
the work of the cine artist in the picture and not to the picture as a complete entity. With

57
2006 (32) PTC 157(Del).
58
AGA Medical Corporation v. Faisal Kapadi, 2003 (26) PTC 349 (Del.) Polymer Papers Ltd. v. Gurmit Singh,
2002(25)PTC 327(Del).
59
AIR 1979 Bom 17.
155
regard to the second issue as whether a performance of a film actor would qualify as
“dramatic” or “artistic” work protected by the copyright law, the High Court referred to the
landmark judgment of Supreme Court’s decision of “Indian Performing Rights Society v.
Eastern India Motion Picture Association 60and held that in view of the definition of ‘artistic
work’ “dramatic work” and “cinematograph film”, it would appear that the Copyright Act,
1957 does not recognise the performance of an actor as work which is protected by the Act.
Justice Krishna Iyer raised the question of the protection of the rights of performing artists in
the above case i.e I.P.R.S v E.I.M.P.A. But the definition of ‘performer’ by amendment 1994,
now the work of a film artiste is protected under the head, “Performer’s right”.

The “author” is defined under Section 2(d) as one in relation to a literary or dramatic work
the owner of it is called the author; in relation to a musical work it is the composer and in
relation to an artistic work, other than a photograph, it is the artist; in relation to a
photograph, the person taking the photograph; in relation to cinematograph film or sound
recording, it is the producer ;and in relation to any literary, dramatic, musical or artistic work
which is computer generated, the person who causes the work to be created is the author.
“Broadcast” is defined under Section 2(dd) as communication to the public by means of
wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images;
or by wire and includes a re-broadcast. Secondly, any communication to the public by wires
has been included to mean broadcast. Therefore a video show would be within this scope of
the definition broadcast and thus video piracy may be included to be punished under the
provisions of the Copyright Act. The video film may be watched by a large section of public
in their homes but this does not make it a private communication so as to take it out of the
definition of ‘broadcast”. A broadcast is heard by millions in private homes. It is nevertheless
a broadcast to public. For example, if the President of India gives a Republic day address
over Doordarshan, it may be received by millions of viewers over their T.V. sets in their
homes. But this does not make it a private communication. It is very much a communication
to the public. The President is not making a private broadcast to each viewer or listener. In
Garware Plastics and Polyster Ltd, v M/S Telelink61 the viewers of a cable T.V Network or
those who receive such broadcast through a dish antenna to which their television sets are
connected, are either residents of apartments in a building which has such a network or they

60
Indian Performing Rights Society v. Eastern India Motion Picture Association . AIR 1977 SC 1443 at P.1450.
61
1989 (2) Bom, CR.433 at pp.441,442,444,445
156
may be residents of a locality which is covered by this facility. They can all be viewed as
public, as viewers are not members of one family or their guests. The viewers are residents in
are in no way connected with each other except by cable. Therefore a strong case has been
made out by the plaintiffs for granting them interim relief otherwise the plaintiff will be
severely affected if their copyright in films is not protected, while the defendants can show
the films after obtaining a licence under the Copyright Act. Therefore an interim order was
passed restraining the defendants, their servants and agents from communicating or
exhibiting or broadcasting by means of what is commonly known as Cable T.V or Dish
antenna such cinematograph films in respect of which the plaintiffs are the owners and or
assignees of copyright without obtaining an assignment of the same from such owners or
assignees or a licence under the Copyright Act.

Section 2(f) defines ‘Cinematograph film’62 as any work of visual recording63 (on any
medium) produced through a process from which a moving image may be produced by any
means and includes a sound recording accompanying such visual recording. That is a
cinematograph film denotes a visual recording whether accompanied by a sound recording or
not. It must be produced through a process from which a moving image may be produced by
any means. Now a cinematograph is construed as including any work produced by a process
analogous to cinematograph including video films.64 A cinematograph film includes sound
track of a film and the sounds embodied in a sound track which is associated with the film.65
Video tapes come within the expression cinematograph film in view of the extended
definition contained in the Act. Therefore, the copyright should also be deemed to have been
created in respect of a video film under the Indian Copyright Act.66 It is now well established
principle of law that both the Video and T.V are cinematograph and both of them jointly and
severally become the instruments of representation of movie pictures or series of pictures and
that the video is an appliance capable of use for the reception of signs, signals, images and
sounds. When a video cassette recorder is used as an apparatus for the above purpose, it
comes within the definition of cinematograph as defined under the cinematograph etc.67

62
Section 2(f) of the Copyright Act as amended in 1994
63
.Omitted by Act 27 of 2012, sec 2(i) (w.e.f. 21-6-2012), vide S.O 1393(E), dated 20th June, 2012)
64
Raj Video Vision vs K Mohana Krishnan, AIR 1998 Mad.294 at p.278.
65
Indian Performing Rights Society(IPRS) vs Eastern India Motion Picture Association(EMPA), AIR 1977 SC
1443 at p.1450.
66
Entertaining Enterprises ,Mad .v State of Tamilnadu . AIR 1984 Mad.278
67
Dr.G.B.Reddy ‘s Copyright Law in India, Published by GOGIA Law Publications, 2nd Edition 2015, p.82
157
Section 13(1) of the Act says copyright is recognized in respect of cinematograph films.
Section 14 provides that in case of copyright protection in cinematograph film it extends to
making a copy of the film, taking a photograph of any image forming part of the film; selling,
giving in hire or offering for sale or hire any copy of the film, irrespective of its earlier sale or
hire; and communicating the film to the public. Once a cinema is produced a number of rights
come into existence like exhibition rights, musical rights, overseas rights, satellite
communication rights and cable T.V. rights. An explanation added by way of amendment
1984, provides that ‘video films’ shall also be deemed to be work produced by a process
analogous to cinematograph means video films are included in the definition of
‘cinematograph film’. Section 14(1)(c) ‘copyright in a cinematograph film’ means the
exclusive right to do or authorize the doing of any of the following acts namely, i) to make a
copy of the film, ii) to cause the film in so far as it consists of visual images, to be seen in
public and in so far as it consists of sounds, to be heard in public; iii) to make any record
embodying the recording in any part of the sound track associated in any part of the sound
track associated with the film by utilizing such sound track; iv) to communicate the film by
broadcast.

The definition of “cinematograph films” 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. i.e., as per section 2(xxa)
visual recording 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. Due to this change Section 14(1)(d) has been
re-drafted with a few additions and deletions. The word hire is replaced by “commercial
rental”68, 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. Prior to the amendment of 2012, the
cinematograph films were considered as commissioned works and therefore, the producer
was considered as the first owner of copyright not only with respect to the film but even with

68
Section 2(fa)
158
respect to literary, dramatic, musical or artistic works incorporated in the film.69 The
amendment of 2012 has added a provision to Section 17 whereby, the authors of literary,
dramatic, artistic or 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, then their right to claim an equal share of royalty and
consideration payable if their work is communicated to the 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
royalty70. Prior to this amendment, a performer lost his right as a performer once his
performance was incorporated in the film.71 The amendment 2012 has introduced a new
section 38A whereby the performer in a film is given special rights and therefore he becomes
entitled to royalty in case of commercial use of his performance. But it applies only to those
performances which are not casual or incidental. With regard to issue or granting of licences
in respect of literary, dramatic, artistic or musical works incorporated in a cinematograph
films or sound recording shall be issued by a copyright society duly registered under this
Act.72 Section 2(ff)73 of the Act gives meaning of “communication to the public” as 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. The explanation provided is communication through satellite or cable or any
other means of simultaneous communication to more than one household or place of
residence including residential rooms or any hotel or hostel shall be deemed to be
communication to the public. Section 2(ffa) defines ‘composer’ in relation to a musical work
as one who composes the music regardless of whether he records it in any form of graphical
notation. A ‘Computer’ is defined under section 2(ffb) as one which includes any electronic
or similar device having information processing capabilities and a ‘Computer program ‘is

69
Section 17(b)
70
Section 18(9)
71
Section 38(4)
72
Subs. by Act 27 of 2012, Sec 19(i), for “Provided further” (w.e.f. 21-6-2012,vide S.O.1393(E),dated 20th
June,2012).
73
Subs. by Act 27 of 2012, Sec,2(iii), for clause (ff) (w.e.f. 21-6-2012, vide S.O. dated 20th June, 2012
159
defined under section 2(ffc) as 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.

Section 2(h) of the Act defines ‘Dramatic work’ as something which includes i) any piece for
recitation, ii) choreographic works or iii) entertainment in a dumb show, then further only the
scenic arrangement or acting, form of which is fixed in writing or otherwise but does not
include a cinematograph film. Again a motion picture cannot be regarded as a piece of
recitation or a choreographic work or entertainment in dumb show. The words otherwise in
the definition is only to provide for the modern means of recording such as tape recorder or a
Dictaphone and similar instruments.74 Again the concluding portion of the definition of
‘dramatic work’ in the sub section which excludes cinematograph film, would seem to clearly
shut out any contention that the dramatic performance of a cine artist which is fixed or
recorded in the film negative will be ’dramatic work’ within the meaning of this definition
and therefore protected by the Copyright Act. The words “fixed in writing or otherwise’
would seem to suggest a point of time prior to the acting or scenic arrangement, which
required to be satisfied before the work can qualify to be ‘dramatic work’ and secure
protection. It is debatable whether the record of the acting or scene arrangement made on a
film after the scene is arranged or acting done or contemporaneous therewith would be
covered by the definition.75 It is held in M/s Fortune Films International vs Dev Anand76 that
the performance of the cine artist cannot be regarded as a piece of recitation or a
choreographic work or entertainment in dumb show. In the latest case Institute for Inner
Studies vs. Charlotte Anderson77 the Delhi High Court held that Pranic Healing Techniques
and also performance of the Asanas relating to pranic healing techniques cannot be protected
as dramatic works under the Copyright Act, 1957. The expression “dramatic work”, “literary
work”, “musical work” all has different and distinct meaning under section 2(h), 2(o) &
2(p).of the Act. It clearly appears that dramatic work is in the nature of physical
manifestation of such recitation of choreographic work or entertainment but does not include
a cinematograph film. In Saregama India Ltd. vs Suresh Jindal78, it was observed that when

74
Fortune Films International vs Dev Anand
75
LAL’s Commentary on The Copyright Act 1957, 5th Edition 2013, Published by Delhi Law House, p-62.
76
AIR 1979 Bom.17
77
2014 (3) RAJ 29 (Del)
78
AIR 2006 Cal.340 at p.347
160
someone does those acts as mentioned in Sec. 2(h) physically and live, and is not a
photographic imprint thereof, it would mean dramatic work. On scenic arrangement, it is
stated that scenic effects, characters “get-up” are not the subjects of protection, apart from
either words or defined movements but it was admitted by Lords Justices in Tate vs
Fullbrook79 that once you have a dialogue, scenic effects become accessory to the dramatic
work, and the whole becomes the subject of copyright in the sense that they are the
background of the dramatic action and therefore part of it. If the scenic effects are fitted to a
totally different dialogue complaint apparently cannot be made; but if the dialogue is not
dissimilar, the fact that the scenic effects also correspond with those found in the earlier work
may be evidence of plagiarism. It is probable that the use of mere scenic effects coupled with
the use of a name might give rise to a passing-off action. Furthermore, some scenic effects
are capable of protection as artistic work.80

Section 2(i) of the Act defines “engravings” is to include etchings, lithographs, woodcuts,
prints and other similar works, not being photographs. In Camlin Private Ltd. v National
Pencil Industries81, it is held that any print obtained from either by an offset printing process
or a letter press or in combination of various printing processes including silk printing
process does not amount to an “engraving”. In any case, the printed product like the one in
question in the instant suit is not the result of any engraved material within the meaning of
the word ‘engraving’ as contained in section 2(i) of the Copyright Act like the prints which
are “lithographic”, “woodcut”, etc.

Section 2(j) of the Act defines “Exclusive Licence” means a licence which confers on the
licencee or on the licencees and persons authorized by him, to the exclusion of all other
persons (including the owner of copyright), any right comprised in the copyright in a work,
and “exclusive licensee” shall be constructed accordingly. Again a distinction can be drawn
as to assignment and licence. In most formal agreements the important point to determine is
whether any copyright be vested in the publisher or whether a licence only is intended. In the
former case, the publisher will enjoy the full legal title to the copyright and will alone be
entitled to enforce the right against third parties. If the licence had been an assignment means

79
(1908) 1 K.B.821
80
Walter Arthur Copinger & Francis Edmund Skone James, Law of Copyright,in the works of Literature and
Art, 9th Ed (1958) ,Published by London Sweet & Maxwell p.62,63
81
AIR 1986 Delhi 444 at p.449
161
instead of a licence, there has been granted (subject to terms and conditions corresponding as
nearly as may be with those subject to which the licence was granted) an assignment of the
copyright in respect of its application to the doing, at the places and times authorized by the
licence, of the acts so authorized.” In K.P.M Sundhram v M/s Rattan Prakashan Mandir82, it
was observed by Justice S.S.Chadha as “If the agreement contains express words or terms as
to copyright then interference can be drawn. Where the agreement contains no such terms,
but the consideration is the payment of royalties or a share of profits instead of downright
payment then the copyright share is not assigned. It would be a case of the conferment of an
exclusive licence to publish and sell.”

The “Government work” is defined under section 2(k) as a work which is made or published
by or under the direction and 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. The reproduction or publication of any judgment shall not constitute an infringement of
copyright. In B.N.Firos vs State of Kerala83 held that where software was developed for
Government and for rendering services by Government to public through single window is
within the definition of ‘Government work’ under section 2(k) of the Act. Further Section
2(o) defines a ‘literary work’ which includes computer programmes, tables and compilations
including computer databases.84 In Urmi Juvekar Chiang vs Global Broadcast News Ltd.85, it
was held, that concept note and production plan regarding reality show on television channel
registered with film writers association can be described as literary work. In Shyam Lal
86
Paharia vs Gaya Prasad Gupta ‘Rasal’ held that the names of many drugs are common
but if a person tabulates them in a particular order and mentions them along with the names
of their manufacturer and has diligently worked in collecting such information then in such a
case he can have a copyright in the publication brought out by him. In University of London
Press Ltd, v University Tutorial Press Ltd.,87 it was held that the question papers set for
examinations were ‘literary works’ because they were work which is expressed in print or
writing, irrespective of the question whether the quality or style is high, and it is further

82
AIR 1983 Delhi 461 at pp.467,468
83
AIR 2006 Ker ,279; 2006(2) Ker.L.J.396;2006(3) Ker L.T .201
84
Saregama India Ltd, v Suresh Jindal, AIR 2006 Cal , 340 at p.347
85
2008 (2) Bom CR 400; AIR 2008 (NOC) 123 (Bom); 2008 AIHC 74.
86
AIR 1971 All.192 at p.195
87
(1916) 2Ch.601
162
pointed out that the word ‘literary’ seems to be used in A sense somewhat similar to the use
of word “literature, in political or electioneering literature and refers to written or printed
matter”. It was further laid down that such question papers were to be counted as ‘original’
works as they were not copied from any book but originated from the author and the
preparation of such papers involved selection, judgment and experience. There can be no
doubt therefore that examination papers come within the category of “original literary works”
mentioned under section 13 of the Copyright Act and that copyright can be claimed.88 A
distinction is made between ‘literary work and dramatic work in Academy of General
Education, Manipal vs B. Malini Mallya89 case, as per the statutory provisions the copyright
in respect of performance of dance would not come within the purview of the literary work
but would fall within the purview of dramatic work. Where copyright was bequeathed to
plaintiff by author in respect of his literary works and books, it was held that bequest will also
cover ‘dramatic works’ of the author. Because dramatic works are also treated as dramatic
literature90. Musical works are defined under section 2(p) of the Act as any combination of
melody and harmony or either of them, printed, reduced to writing or otherwise graphically
produced or reproduced. This section makes it clear that musical work is the music itself and
the graphical notation of such music but does not include any words or any action intended to
be sung, spoken and performed with the music. Therefore, the statute had made a distinction
between musical work and a song may or may not be without music. It is held that even if a
song is sung which has music, it will not become a musical work under the said section.91
The provisions under the Act indicates that a composer, who has done the musical work to
the particular song by providing proper tune will be the owner of the copyright and also has
got the authority to assign the said copyright on musical work to any person.92 The word
“Performance” is defined under section 2(q) of the Act which is to include any mode of
visual or acoustic presentation including any such presentation by the exhibition of a
cinematograph film, or by means of radio diffusion, or by the use of a record, or by any other
means and, in relation to a licence, includes the delivery of such lecture. Further section 2(r)

88
Agarwala Publishing House, Khurja vs. Board of High School and Intermediate Education, U.P.Allahabad,
AIR 1967 All.91 at p.92
89
AIR, 2009 S.C,1982 at p.1987: (2009) 4 S.C.C 256.
90
Academy of General Education,Manipal vs.B.Malini Mallya, 2008 AIHC 2063: AIR 2008
(NOC)1286(Khat): 2008(4) ALJ (NOC) 836.
91
Saregama India Ltd. vs Suresh Jindal, AIR 2006 Cal,340 at p.347
92
S.R. Jayalakshmi vs. Meta Musicals, 2001 (1) K.I.T.44 at pp.44/45(S.N)
163
gives definition of ‘performing right society’ which means a society, association or other
body, whether incorporated or not, which carried on business in India of issuing or granting
licences for the performance in India of any works in which copyright subsists. The term
“Photograph” is defined as to include photolithograph and any works produced by a process
analogous to photography. but does not include any part of a cinematograph film. In Graves v
Beal93, held that every photograph is the copy of an object in a sense and some question may
arise as to whether a particular photograph is original or not wherever the object so copied,
either directly or indirectly was another artistic work. This question will be the most acute
where such artistic work was itself a photograph. It has been decided in Graves case as,
however that a photograph of an engraving or painting can be original, the originality in such
a case consisting partly in the change of medium. Then a question arises as what if the
photograph of an identical or almost identical photograph? In such case, it is clear that later
photograph may be characteristics of a new work as opposed to a mere slavish copy of the
earlier photograph, yet even if the second one turns out to be a close or exact reproduction of
the first its making may yet have involved sufficient skill and labour to confer copyright upon
the copy.

Section 3 of the Act defines ‘publication’ as making a work available to the public by issue of
copies or by communicating the work to the public. Again the issue of photographs or
engravings of a work of sculpture or an architectural work of art of the issue of any record
regarding a literary, dramatic or musical work shall not be publication within the meaning of
the except as otherwise expressly provided in the Copyright Act,1957. In Prince Albert vs
Strange94case, her late Majesty Queen Victoria and the late Prince Consort had given to their
intimate friends lithographic copies of drawings and etchings which they had made for their
own amusement. This was held to be a private circulation of copies, and hence not a
publication. Section 4 of the Act says 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 copyright. Section 5 states for the purpose 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
93
Graves vs. Beal ,exparte, Beal L.R,III Q.B.387
94
(1849) 1 H & Tw 1, 2 De G & SM 293, refer (1849) 1 Mac & G 25, [1849] EWHC Ch J20, [1849] EngR 255,
(1849) 41 ER 1171, [1849] EngR 261, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652.
164
published simultaneously in India and in another country if the time between the publication
in India and the publication in such other country does not exceed thirty days or such other
period as the central government may, in relation to any specified country, determine in
compliance of the provision of Universal Copyright Convention to which India is a signatory.

4.2.2 Copyright Authorities: The Copyright Act provides for three important authorities
a) Copyright Office b) Copyright Board c) Copyright Societies.

a) Copyright Office-Chapter II of the Act and section 9 deals with provision for
establishment of copyright office, which shall be under immediate control of the Registrar of
copyrights who shall act under the superintendence and direction of the central government.
Section 10 provides for appointment of Registrar and appointment of one or more Deputy
Registrar of copyrights by the central government. It also discusses the duties of deputy
registrar that he shall discharge such functions under the superintendence and direction of the
registrar of copyrights as the registrar may, from time to time, assign to him and any
reference to registrar shall include a reference to deputy registrar of copyright as well with
regard to discharge of such functions.

b) Copyright Board: The Copyright Board came into existence in the year 1958. The Board
was reconstituted in the year 1996.Section 11 deals with the constitution of the Copyright
Board to be constituted by central government and it shall consist of a Chairman and not less
than two members95and more than eight other members. The Chairman so appointed, shall be
96
a person who is or has been a Judge of a High Court or is qualified for appointment as a
Judge of a High Court. 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
Copyright Board.97

Section 12 of the Act describes the powers and procedure of Copyright Board. The Copyright
Board has the following powers: i) to hear appeals against the orders of the Registrar of
Copyright; ii) to receives applications for rectification of entries in the Register of
Copyrights; iii) to adjudicate upon disputes on assignment of copyright; iv) to grants
compulsory licences to publish or republish works (in certain circumstances); v) to grants

95
Subs by the Copyright (Amendment) Act,2012 (Act No.27 of 2012) Sec .3(a),dated 7th June, 2012
96
The words the Supreme Court or are omitted by the Copyright (Amendment) Act,1994 (38 of 1994) Sec.5
97
Subs by the Copyright (Amendment) Act, 2012 (Act No.27 of 2012) Sec.3(c ),dated 7th June,2012.
165
compulsory licence to produce and publish a translation of a literary or dramatic work in any
language after a period of seven years from the first publication of the work; vi) to hear and
decides disputes as to whether a work has been published or about the date of publication or
about the term of copyright of a work in another country; vii) to fix rates of royalties in
respect of sound recordings under the cover-version provision; and viii) to fix the share right
in original copies of a painting, a sculpture or a drawing and of original manuscripts of a
literary or dramatic or musical work.

The Board enjoys the status of a civil court. It has the following powers of a civil court like i)
Summoning and enforcing the attendance of any person and examining him on oath;
ii)Requiring the discovery and production of any document; iii) Receiving evidence on
affidavits; iv) Issuing commissions for the examination of witnesses or documents;
v) Requisitioning any public record or copy thereof from any Court or office; and any other
matter which may be prescribed from time to time.

The Board has the power to decide disputes on the following issues: (1) Whether a work has
been published or was published for the purpose of determining the term of copyright and (2)
Whether the term of copyright for any work is shorter in any other country. The Board is also
empowered to hear the disputes between authors and publishers with regard to assignment of
copyright and its revocation due to non-payment of royalty. The Board is entrusted with the
task of adjudication of disputes pertaining to copyright registration, assignment of copyright,
grant of licences in respect of works withheld from public, unpublished Indian works,
production and publication of translations and works for certain specified purposes. The
appeals to the decisions of the Copyright Board lie with the High Court. An appeal has to be
filed within three months to the High Court within whose jurisdiction the appellant is actually
and voluntarily residing or carries on his business transactions or personally works for gain.
Even though the Board is granted certain powers of the civil court, it does not have the right
to grant injunctory relief nor damages. The Copyright Board can regulate its own procedure
like deciding upon the place and time of its different sittings. For the purpose of deciding the
various issues throughout the country, entire country is divided into different zones.
Northern, Eastern, Western, Southern and Central Zone. In Eastern India Motion pictures &
Ors vs. Performing Right Society Ltd & Ors98, the court held that the Copyright Board has the
jurisdiction to decide the question of authority of the copyright society. In Harrington

98 AIR 1978 Cal 477

166
Construction & Finance Ltd vs. Eicher Goodearth Ltd99, a petition was filed by the petitioner
for rectification of the Copyright Register by deleting the entry relating to the registration of
copyright registered in the name of the respondent. The argument put forward by them is that
the work registered by the respondent as the ‘Horse Device’ and is a replica of the Horse
Head of the rookie coin of the cheese board. As per the respondent the drawing registered in
their name is a original work registrable under the Act and it is not a copy of the chess coin.
The Copyright Board dismissed the petition on the ground that the petitioner failed to prove .

c) Copyright Societies: Chapter VII of the Act deals with copyright societies. This concept
was introduced by the 1994 Amendment Act. A copyright society is defined under section
2(ffd) as a society registered under sub section (3) of section 33. The Copyright Act 1957,
sections 33 to 36A regulate copyright societies. Prior to the amendment 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. Technological development
led to the expansion of the field of copyright and related rights and technological progress in
the last several decades 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 internet. This technological innovations and developments though
they have created new opportunities for economic exploitation of intellectual works, it also
posed serious challenges to effective protection of these new opportunities. It has become
difficult for the individual to control his rights on copyright because the number of users of
their work has expanded enormously and the infringers are too many for the copyright owner
so as to deal with them individually. It is beyond the ability of any individual copyright
owner to monitor every use of his work or to enforce his rights effectively with every
potential user worldwide. To overcome these difficulties, the copyright owners resorted to
collective administration of rights through the copyright societies. Collective control and
reward through collecting societies or collective management organizations has become not

99 1997 PTC (17)72

167
just desirable but inevitable.100 Copyright Society was formed with an intent to provide
collective management of copyrights. Collective administration of copyright is a concept
where management and protection of copyright in works are undertaken by a society of
owners of such works. An owner of copyright in any work cannot keep track of all the uses
others make of his work. When he becomes a member of a national copyright society, that
society, because of its organizational facilities and strength, is able to keep a better vigil over
the uses made of that work throughout the country and collect due royalties from the users of
those works. Because of the country’s membership in international conventions, the
copyright societies are able to have reciprocal agreements with similar societies in other
countries for collecting royalties for the uses of Indian works in those countries. From this, it
can be inferred that it will be in the interest of copyright owners to join a collective
administration organization and to ensure better protection to the copyright in their works and
for reaping optimum economic benefits from their creations. Users of different types of
works also find it easy to obtain licenses for legal exploitation of the works in question,
through the collective administrative society.101For these functions, the societies deduct a
specified percentage from the fees paid by the users to meet their administrative costs. The
disadvantage is said to be the administrative costs involved which are said to be too high and
the consequence is too small a portion of the amount paid by the users finds its way into the
pockets of the right owners.102 Section 33 of the Act discusses about registration of copyright
society. It says that no person 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). A copyright
society has to be registered with the Central Government under this section. 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 under sub
sec (2) of 33. The Central Government before granting the registration, shall consider factors
like the interest of the authors and other owners of rights under the Act; the interest and
convenience of the public; the interest of group of persons who are most likely to seek
100
International Federation of Reproduction Rights Organizations, IFRRO General Papers I, Collective
Administration, htpp://www.iffro.org/upload/documents/Collective Administration-1997,pdf accessed on 6th
February, 2013
101
www.education.nic.in/htmlweb/copyright.htm
102
S.M.Stewart, International Copyright and Neighbouring Rights (Butterworths 1989 2nd Ed.
168
licences in respect of the relevant rights, and the ability and professional competence of the
applicants. The Central Government registers only one copyright society to do business in
respect of same class of works. The central government has the right to either accept or reject
the application within 60 days of receipt of the application. The application can be rejected on
the following grounds: If the applicant has no professional competence; Another society of the
same nature has already been registered under the Act; and if the central government believes
that the applicants are not the bonafide owners of the copyright. Section 34 deals with
administration of rights of owner by the copyright society. 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 under section 34(1). The Act gives the choice to the authors and right owners to
authorize 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 licencee,
and a collective administrative organization may be authorized only to collect and distribute
remuneration.103 Once authorization is obtained by the copyright society, subject to certain
conditions may issue licences under section 30 in respect of any rights under the Act such as
i) collect fees in pursuance of such licences; ii) distribute such fees among owners of rights
after making deductions for its own expenses. The question before the society is how much is
to be paid to authors? Rates of remuneration to authors 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. Perform any other functions consistent with the
provisions of section 35 i.e control over the society by the author and other owners of rights
under section 34(3). In Federation of Hotels & Restaurants Association of India v. UOI104,
the constitutional validity of sections 2(ffd), 13, 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,

103
Collective Administration of Copyright and Neighbouring Rights, WIPO Publication No.688(E)
Geneva,1990 at p.87.
104
2011 (46) PTC 169 (Del.) D.B
169
unregulated and unbridled powers on copyright societies with regard to issue of licences to
various bodies and organizations, collecting fees in pursuance of such licences and
distributing such fees among owners of these rights. It is 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 that all the
provisions to be constitutional. The copyright and performing societies IPRS/PPL are an
amalgamation of conglomerate of individuals/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 parliament. The Delhi High Court in Event and Entertainment
Management Association v. Union of India105 held that the working of the copyright societies
continues to be monitored and guided by the Copyright Act. There are adequate safeguards
provided in the Copyright Act to check the consequences of any perceived excessive
delegation and said that the Act does not provide a free run as regards the fixation of tariffs
and royalties in copyright works to copyright societies. In the light of these judgments section
33A was inserted by the Amendment Act 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. Aggrieved person can
make an appeal to Copyright Board and Board may after holding an inquiry make such orders
to remove any anomaly or inconsistency. It can also fix interim tariff and direct parties to
make the payment pending disposal of appeal. Section 34 (2) 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. A copyright society shall
not permit any discrimination in regard to the terms of licence or the distribution of fees
collected between rights in India and other works. Sections 35 and 36 deals with control over
the copyright society. The copyright societies are subject to control by authors and owners of
copyright. It should obtain the approval of them for its procedures of collection and
distribution of fees; 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; to provide to
such owners regular, full and detailed information concerning all its activities, in relation to
the administration of their rights under sub section 35(1). Under section 36(1) submit to the

105
2011(46) PTC 405 (Del.)
170
registrar of copyright such returns as may be prescribed. As per section 35(2), the copyright
society should distribute all fees among the right owners in proportion to the actual use of
their works. Section 36(2) states any officer duly authorised by the central government, may
call for any report or records of any copyright society to check if 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. The central government has control over the societies and it
ensures that only those organizations operate which can provide legal, professional and
material conditions appropriate for efficient administration of rights. It ensures that the
collective administration is available to all right owners who need it; and also the terms of
membership of the organizations be reasonable and the principle of equal treatment of
various categories of right owners be duly respected.106 The amendment Act 2012 aimed at
stronger control of the government over these societies. Section 36 makes it clear 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 registeration after considering the report of
Registrar of copyright on the working of the copyright society. It further states that every
copyright society already registered before 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 rights
concerned, the central government after holding an enquiry may cancel its registration.107 It
may also suspend the registration of society pending enquiry for a period not exceeding one
year during which period it may appoint an administrator to discharge the functions of the
society.108The owner of rights is free to withdraw his authorization by giving 60 days notice
in case the copyright society fails to fulfill its commitments under the agreement.109 The
owner of copyright shall in his individual capacity, continue to have the right to grant
licences in respect of his own works even though he is a member of the registered copyright
society.110 But in case of cinematograph films or sound recordings, the business of issuing or

106
Collective Administration of copyrights and Neighboring Rights, WIPO Publication No.688(E) Geneva 1990
at p.89
107
Section 33(4)
108
Section 33(5)
109
Rule 14 G(2), the Copyright Rules,1958
110
Section 33(1)
171
granting license in respect of literary, dramatic, musical and artistic works shall be carried out
only through a copyright society duly registered under this Act.111 In India, so far there are
four copyright societies registered with the central government under different classes of
works they are under the music category two i) Phonographic Performance Ltd (PPL), it is a
copyright society in respect of sound recordings and ii) Indian Performing Rights Society
Limited (IPRS) the only national copyright society in the country, which is permitted to
commence and carry on the copyright business in musical works.112 The third society is
Copyright Regulation of Indian Producers of Films and Television (SCRIPT) deals with the
copyright in cinematograph films and televisions. The fourth one is Indian Reprographic
Rights Organization (IRRO) registered in the year 2000 for granting reprographic and digital
licences on behalf of its members namely, authors and publishers. Section 39A is amended by
the amendment of 2012 and provides that all provisions relating to copyright societies namely
33 to 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. A provision is 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 society similar can be registered for the benefit of broadcasting organizations.

4.3 Works in Which Copyright Subsists

Chapter III and Section 13 (1) of the Copyright Act deals with classes of works in which the
copyright subsists that is original a) literary, dramatic, musical and artistic works, b)
cinematograph films and c) sound recordings113. As per Sub section (2) Copyright shall not
subsist in any work specified above other than a work to which provisions of section 40
(which discusses power to extend copyright to foreign works) or section 41 (which deals with
provisions as to works of certain international organisations), apply, unless i) in the case of an
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 a
unpublished work other than an 114(work of architecture), the author is at the date of making

111
Section 33(1) second provision
112
htpp://www.iprs.org/cms/IPRS/About IPRS.aspx accessed on February 2014
113
Subs. by Act 38 of 1994, S.2, for “record” (w.e.f.10-5-1995).
114
Subs. by Act 38 0f 1994, S.2, for (architectural work of art (w.e.f.10-5-1995).
172
of the work, a citizen of India or domiciled in India and iii) in the case of work of
architecture, the work is located in India. 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. Sub section (3) of Section 13 states that 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 (sound recording) made in respect of a literary, dramatic or musical
work, if in making the (sound recording) copyright in such work has been infringed. Section
13 sub section (4) states that the copyright in a cinematograph film or a (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 (sound recording) is made. Sub section (5) of
Section 13 states that in case of an (work of architecture), copyright shall subsist only in the
artistic character and design and shall not extend to processes or methods of construction.
The word “Original” is prefixed to literary, dramatic, musical and artistic works and not to
cinematography films and sound recordings as they are works made by making use of
literary, dramatic, musical and artistic works. But the word original is not defined by the
legislature in USA, UK and India. The judiciary found difficult to determine what is original
and therefore it has formulated tests to determine original as when a case came up before
them. In deciding whether a work is original or not the judiciary made some general
propositions like, the Copyright Act is not concerned with the originality of ideas but with the
expression of thought and that expression must originate with the author and not to be copied
from another work. 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 more than merely
trivial variations, something that can be recognized as his own. The term original refers to the
production of a new literary, dramatic, musical and artistic work by exercise of mental labor,
skill and judgment of author. To settle on whether the work is original, it is necessary to
check whether original skill or labor is put in to produce that particular work. In C. Cunniah v
Balraj & Co115, it was held that in order to obtain copyright protection, the ideas expressed
need not be novel. The protection to be granted in case of published and unpublished works

115
AIR 1924 PC 75

173
differs. Copyright protection will not be extended to any cinematograph film if a ‘substantial’
part of the film is an infringement of the copyright in any other work. In Jagdish Prasad
Gupta vs. Parmeshwar Prasad Singh & Ors116, it was held by the court that a person who
merely copies a written document does not obtain copyright in his copy. It is very well
understood that in such cases the original thought nor original research is essential and the
standard of originality is low. Copyright protection is granted to literary, dramatic, musical
and artistic works to its expression and not to ideas. In the given situation, a syllabus was
prescribed for examination in each subject and the person who sets the questions had to keep
in view the syllabus and the question must be within the prescribed parameters of that
syllabus. The court held that the question papers of the Bihar School Examination Board
were original literary works within the meaning of Section 13(1)(a) of the Copyright Act
1957. In Eastern Book Company vs. Navin J. Desai117 it was held that head notes of law
reports can be original literary work, if they are prepared by the author using his skill, labour
and judgment which may not be creativity in the sense that is novel or non-obvious, but at the
same time it is not a product of merely skill and labour. The work should have creativity to be
called original. Further held that if a work is created by making use of works in public
domain then “sweat of brow” test is replaced by “minimum creativity test”.

In Copyright law, the fundamental rule is that there is no copyright in an idea but the
expression of an idea is protected.118 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 WIPO Copyright Treaty (WCT), 1996 uses the
same language and is therefore consistent with TRIPS. The Indian copyright is not having a
similar provision but the Indian Courts 119 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,120 the plaintiff sought protection of copyright
in a system called “Assured-Contact-Phone Verification Service”. The court in this case held

116
AIR 1996 Pat 33
117
(2001) PTC 57 (Del) 94,95
118
Jeffrey’s v. Boosey(1854) 4 HCC 815; Deeks v. Wells AIR 1933 PC;Black’s Law Dictionary, 8th ed.p.761
119
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; Fazal Ali J. in R.G.Anand v. M/s Delux Films AIR 1978 SC 1613;
Harman Pictures N.V.Osborne (1967) 1 WLR 723; Indian Express N/P(Bom) Pvt.Ltd. v. Dr.Jagmohan,
AIR1985 Bom.229.
120
2009 (41) PTC 709 (Mad)

174
that it was an Interactive Voice Response System (IVR), 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 monopolized for one. The Calcutta High Court in Barbara Taylor Bradford v.
Sahara Media Entertainment121 explained the idea expression dichotomy by taking an
illustration122. It was to decide whether the defendant’s play infringes the copyright in the
plaintiff’s play and the Court had to place emphasis on the basic theme of both the plays.
That is, if marriage does not take place within a specific time, the good person loses
everything and bad person takes everything, which is the common theme in both plays. It has
common characters, common villain, beggar girl taking over the villain in last moment and
the subject matter too is inherited fortune. So one would conclude that the substance of the
play of the plaintiff has been reproduced by the defendant and he is therefore copying it and a
substantial part of plaintiff’s work has been adopted, not merely adapted, by the defendant.
One would assume that the conclusions made in this case is in line with the dicta in
R.G.Anand’s case. The defendant’s action is no more than an act of piracy where the basic
artistry of the plaintiff has been copied. The court then went on to explain the rationale
behind the copyright law, that is you can borrow the idea of another author, but not the
expression. The court also observed that how can 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 most difficult to answer and there are no final answers yet. There is no
final and exact way to determine what is a copy or what is a copy of the idea only? Therefore
it is said that the word copy has never been attempted to define in any of the Copyright Acts.
Again the court in Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd123, discussed

121
(2004) 28 PTC 474(Cal) (DB)
122
Illustration is plaintiff’s play, hero has inherited a fortune from his uncle on condition that if he dies
unmarried the money will go to his cousin, villain. The villain shoots him but makes it look like an accident .
The hero then wants to defeat the villain by bribing a beggar girl out of the streets to marry him before death can
ensue. In defendant’case the hero inherits a fortune from his father if he marrys at the age of 25, or else money
will go to villain. The villain then induces him to pass his time drinkingand gambling so as to forget the
condition. On 25th birthday of the hero his family lawyer persuades him to go home. On the way home, the
hero meets the 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.
123
2003 (27) PTC 457 (Bom) (DB); also Jeffreys v. Boosery, 1885, 4H.L.C,815.
175
copyright protection in concept note. In this case the plaintiff developed a concept note for a
serial “Krishna 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 channel started broadcasting the serial
“Kanhaiya” based on the concept of plaintiff. The court said 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. Therefore it can be said that courts have
divided idea into two categories an idea in public domain which is not copyrightable and
novel ideas converted into a concept and communicated to television channels under an
agreement of confidentiality which are copyrightable but again it is said if concept note is
protected by copyright, duration of copyright is sixty years from the death of author. But
again this rule is not followed in these cases as the confidential, novel idea translated to
concept note is copyrightable but once the show is on television, it will get into public
domain and again be called as an idea that is not copyrightable and therefore not protected.
Therefore protection for concept notes is reduced drastically.

4.4 Ownership of Copyright and the Rights of Owner: Chapter 4 section 17 of the
Copyright Act discusses about the ownership of copyright and as who is a first owner? The
owner of a work is in general the author of the work. The authorship differs from each class
of work. The term author denotes (as per Section 2 (d) of the Act): in case of a literary or
dramatic work, the author of the work; in case of musical work, the composer; in case of an
artistic work, the artist; in case of a photograph, the person taking the photograph; in case of a
cinematographic film or sound recording the producer; in case of any literary or dramatic,
musical or artistic work generated by computer the person who causes the work to be created.
A work can be created by two or more persons jointly. Section 2(z) defines a joint authorship
as a work produced by the collaboration of two or more authors in which the contribution of
one author is not distinct from the contribution of the other author or authors. The Delhi High
Court in Najma Heptullah vs. M/s Orient Longman Ltd124, while discussing the issue of
authorship of a book ‘India Wins Freedom’ held that the book was the product of the active

124
AIR 1989 Del.63
176
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 that
Kabir will write the same in English. Generally, the author of a work is the first owner of
copyright. But this may not apply to all situations. The author is recognised as the first owner
of copyright except in the case of commissioned work done for valuable consideration during
the course of employment either under a contract of service or of apprenticeship. In case of
films, the copyright vests with the film producer. If a person is hired to do a particular work
by another person and in course of such employment, if he creates a work, its ownership lies
with the person who has employed him i.e., the employee. This again depends on whether
prior to the creation of this work they had any agreement or not. If there exists an agreement
the ownership depends on the stipulations of that agreement. 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. Section 17 (a) states, if an author of a 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.125
All the other rights, for example, the right to make a cinematograph film, right to perform the
work etc. vests with the author who created the work for the employer newspaper. This will
not apply, if he enters into an agreement with the employer, if stated in the agreement that
employee author will remain the first owner of copyright in respect of works created by him
in the course of employment. Section 17(b) states, the first owner of copyright will be a
person at whose instance the work is commissioned and not the author. If a person gets a
work done by paying a valuable consideration to another then the work is a commissioned
work. “Commission” to artiste to paint a picture. Cases like where a photograph is taken,
painting made, portrait drawn, engraving or cinematograph film made for valuable
consideration .In Eastern India Motion Pictures v. Performing Right Society Ltd.126 A.N.Sen
J observed as “When a cinematograph film producer commissions a composer of music or a
lyricist for reward or valuable consideration for the purpose of making his cinematograph
film or composing music in lyric therefore i.e., sounds for incorporation or absorption in the
sound track associated with the film, which are included in a cinematograph film, he becomes

125
Periyar Self Respect Propoganda Institution v. Periyar Dravidar Kazhiagam 2010 (440) PTC 422 (Mad) (DB)
126
AIR 1978 Cal.477 at p.482
177
the first owner of the copyright therein and no copyright subsists in the composer to the lyric
or music so composed unless there is a contract to the contrary between the composer of the
lyric or music on the one hand and the producer of the cinematograph film on the other”. In
S.Mahalingam v. Vasan publications Pvt.Ltd 127case, where an artist created images of Gods,
Godess and temples drawn or painted; and such images were published in ‘Ananda Vikatan’,
a well known Tamil magazine after the artist was paid licence fee/consideration for drawing
pictures under a contract of employment, the journal would be the owner of copyright that
includes the right to bring out a compilation of the earlier publications. In Shree Venkatesh
Films Pvt Ltd. v Vipul Amrutlal Shah 128case, it is observed that where film as a whole when
exhibited individual owners of copyright in works, who have permitted the film to be made
cannot claim copyright. It is further held that the individual owner can assert his copyright
only when the film is segregated and individual work is called out and exhibited. In Agarwala
Publishing House, Khurja v. Board of High School and Intermediate Education, UP
Allahabad129, it was argued that copyright in examination paper belongs to the paper setters
and not to the Board. The arguments were based on section 17, the court held that “It is
obvious that the Board exercises no control, in the true sense of the term, over the annual
preparation of the question papers set for its examinations. It engages persons who have
specialized knowledge of the subjects prescribed for the examinations and asks them to set
papers on those subjects. Within the prescribed curriculum but having entrusted the work to
those persons, the Board leaves them to carry it out by using their skill and discretion,
without any further interference or guidance from the Board. Paper setters are thus not in the
position of servants, acting under a contract of service and subject to the commands of the
master as to the manner in which they shall work, but are to be considered rather as
independent contractors acting under a contract of service and not subject to direct control in
the performance of those services. Further it says examination papers are not Government
work as defined under section 2(k), even if it is assumed that the Board is department of
Government and consequently proviso (d) to section 17 cannot operate to confer ownership
of the copyright in those papers on the Board or on the Government.

Further Section 17 (c) states, where a work is made in the course of the author’s employment
under a contract of service or apprenticeship, to which clause (a) or (b) does not apply, the

127
2013(55) PTC 178 (Mad.) (DB)
128
G.A. No. 2153 of 2009; A.P.O.T. No.309 No.2009;G.A. No.2064 of 2009; C.S. No. 219 of 2009
129
AIR 1967 All.91 at p.93.
178
employer shall in absence of any agreement to the contrary, be the first owner of copyright.
According to section 17(cc) says a person who delivers the speech in public is the first owner
of copyright. This provision was inserted by the Copyright (Amendment) Act, 1983 and the
person who arranges for such address or speech is not the copyright holder and further it does
not apply to lectures delivered to a private audience. But this section conflicts with section 13
where it says copyright subsists only in ‘works reduced to a material form’. So a lecture, if
not reduced to writing or printing therefore, is not a work as it has not been converted in
material form. But if both sections i.e 17(cc) and 13 are combined and read one can assume
that if a lecture is delivered in public then copyright subsists in the lecture, even if it 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 if not converted to a material
form then copyright does not subsists but the person delivering the lecture may be protected
by performer’s rights in accordance with the section 38. If the lecture is written down then
only he has the copyright by virtue of section 13.130 Sub clause (d) of this section discusses
about Government work i.e., in the case of Government work, Government shall, in the
absence of any agreement to the contrary, be the first owner of the copyright for it works.
Further sub clause (dd) has been inserted by the amendment Act 1983131which says in the
case of 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 for it works. A “Public undertaking’ is an undertaking
owned and controlled by Government or a Government Company as defined in Companies
Act or a body corporate established by or under any Central Provincial or State Act. Sub
clause (e) of this section refers to works of section 41, the international organization
concerned shall be the first owner of copyright.

4.4.1 Transfer of ownership of copyright

Copyright is said to be proprietary right of the owner and therefore he has every right to
transfer it to anyone like any other property. The modes of transfer can be by assignment, by
licence, by testamentary disposition of copyright and by relinquishment of copyright.
a) Assignment of Copyright: Section 18 of the Act discusses as who can assign the
copyright. The owner of the copyright in an existing work or the prospective owner of the

130
Walter vs. Lane (1900) AC 539
131
Ins.by Act 23 of 1983,w.e.f. 9-8-1984
179
copyright in a future work may assign to any person the copyright either wholly or partially
and either generally or subject to limitations132 and either for the whole term of the copyright
or any part thereof and if it a case of future work the assignment shall take effect only when
the work comes into existence. It may or may not be limited to a particular country or
territory. Further Amendment 2012 provides 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. It also provides 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
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 and any agreement to contrary
shall be void. It further provides 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 and any assignment to the contrary shall be void. Again Sub clause
(2) of the same provides that where the assignee becomes entitled to any right comprised in
the copyright, the assignee with respect to the rights so assigned becomes the owner and the
assignor with respect to rights not assigned becomes the owner. Further clause (3) says the
assignee includes the legal representatives of the assignee with respect to future work if the
assignee dies before the work comes into existence. The Madras High Court in Sri Gokulam
Chit and Finance Company (P) Ltd. v. Johny Sagriga Cinema Square133case it held that an
assignment serves two purposes. For the assignee, it confers the right of exploitation for a
specific period in a specified territory and for the assignor, it confers the right to receive
royalty. Further it held that the rights conferred by an agreement of assignment on the
assignee is for that period and after the expiry period, it flows back to the assignor, the
royalty paid to the assignor never gets repaid to the assignee. In this case there was an
agreement in respect of Malayalam film “Body Guard” and its remake Tamil version

132
Rupali R.Shah vs. Adani Wilmer Ltd., 2012(52) PTC 305 (Bom.)
133
2011 (46) PTC (Mad), refer C.S.N0.956 of 2010,O.A.No.1225 of 2010 to 1227 of 2010

180
“Kavalan” the Madras HC after going through the provisions of the agreement, held that the
sole purpose of an agreement 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.

Mode of Assignment: Section 19 deals with 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.134 Therefore an oral assignment of a copyright is invalid. The subject matter
of it can be identified by oral evidence135In London Printing and Publishing Alliance v.
Cox136 it is held that there is no particular form prescribed for assignment, it can even be
affected by a letter. The Amendment of 1994 substituted sub section (2)137 and it requires 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 years from the date of assignment. If the territorial extent is not
specified then it shall be presumed to extend within India. Again sub section (3) says the
assignment shall specify the amount of138(royalty and any other consideration payable), if
any, to the author or his legal heirs during the currency of the assignment, the assignment
shall be subject to revision, extension or termination on terms mutually agreed upon by the
parties. Further sub sec (4) says 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. Further the amendment of 2012 has added three more limitations
to the ones already in existence with respect to assignment. They are, 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.139
Further sub-section (9) to section 19 deals with assignment of copyright in a work to make a
cinematograph film. If an author of a literary, dramatic, musical, and artistic work assigns his

134
Srimagal vs.Books (India) Pvt. Ltd., AIR 1973 Mad. 49; at p.49
135
E.W.Savoy vs. World of Golf (1914) 2 Ch.566 (CA)
136
(1891) 3 Ch.291(CA)
137
Subs.by the Copyright (Amendment) Act, 1994 (38 of 1994), Sec.8 Sub section (2) before its substitution
stood as under: - (2) The assignment of the copyright in any work shall, among other things, indicate clearly the
rights proposed to be assigned and the size of the work.
138
Ins by the Copyright (Amendment ) Act, 2012 (Act N0.27 of 2012 ) Sec.9, dated 7th June, 2012.
139
Indian Copyright Act 1957,Section 19(8)
181
copyright to a cinematograph film then it is a limited assignment in the sense that if his work
is utilized 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. Prior to the amendment 2012 such a continuous right of the
author of works utilized in cinematograph films was not recognized by the legislature. Again
sub section (10) says 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 get an equal share
of royalties and consideration payable for any utilization of such work in any form. In Zee
Television Ltd vs. Aalia Productions140 the court while dealing with an assignment deed in
relation to a program called ‘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 are vague and uncertain,
therefore no interim relief could be given to the plaintiff. In A.A.Associates vs. Prem Goel
and others141, case the plaintiff acquired the sole and exclusive rights of distribution,
exhibition and exploitation of film “Mazboor’ within the territory of UP 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.

Disputes under Assignment: There are also disputes that arise with respect to assignment of
copyright and these are dealt under section 19. Sub sec (2) says if any dispute arises
regarding assignment of copyright the aggrieved person can make complaint to copyright
Board and the Board after holding an inquiry, as it considers necessary may pass orders
including an order for payment of royalty. Section 19A142 provides that 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

140
2000 (20) PTC 382 (Bom).
141
2002 (24) PTC 369.
142
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.
182
assignment. The Copyright Board shall not pass order for revocation of assignment unless it
is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also
the author. 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.143 It also says no order of
revocation of assignment under this sub section, be made within a period of five years from
the date of such assignment. Again sub section (3)144 provides that 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 date of
receipt of complaint and any delay in compliance of the same the Copyright Board shall
record the reasons thereof. In PHI learning Private Ltd vs Dr.(Mrs.) P. Meenakshi145the
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/defendant 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 the
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.

4.5 Licences

Section 30 of the Act provides for licences by owners of copyright. It says 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 146(writing by him) or by his duly authorized
agent. But 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. In case where a person to whom the
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

143
Subs. by Act 27 of 2012, S.10 for the words “provided further that” (w.e.f.21.6.2012)
144
59 Ins. by Act 27 of 2012, S.10 (w.e.f. 21.6.2012)
145
2011 (47) PTC 548 (Del.)
146
Subs. by Act 27 of 2012, S.14, for the words “writing signed by him”(w.e.f.21-6-2012)
183
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. However, there are certain statutory
situations where the exclusive right to authorize a particular act is substituted by a right to
equitable remuneration. Section 31 of the Act provides for 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.147

(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. These type of 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.

Section 20 of the Act deals with testamentary disposition of copyright. When an owner in a
published or unpublished work dies, the copyright will pass to his legal representatives as a
part of his estate. This section 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 this section means the original document
embodying the work, whether written by hand or not. Further Section 21 states, the author of
a work may relinquish all or any of the rights comprised in the copyright in the work by
giving a 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. It further says 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. Then the Registrar 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 official website within fourteen days from
such publication so as to remain in public domain for not less than three years. Once, the

147
Report of the Subcommittee of the Intergovernmental Committee (Copyright 1978) p.208 paras 48 and 49.
184
author relinquishes his copyright, the work falls in public domain from the date of notice and
it becomes the common property of all. At the same time where the rights are subsisting in
favour of any other person on the date of notice, such rights will not be affected.

4. 6 Rights of Copyright Owners

The work created by the author is the property of the author. He is the owner and therefore
has exclusive rights to reproduce in any form or manner, or to communicate, to distribute, to
assign or to alienate his work for economic or personal gain and he also has the exclusive
right to commercially exploit his work. These rights are called economic rights. The work no
doubt has a monetary value but it is also an extension of personality of author. The author
expects and assumes that others will respect his work and not encroach his right by
modifying, amending, distorting or mutiliating his work in any manner that will affect his
honour and reputation. This interest of author in his personality forms the basis of the moral
right of integrity of the author. The work being the brain child of the author and author can be
deemed to be called the parent and he would not like anyone to claim authorship in his work.
This interest lays foundation for moral right of paternity of the author. The author may need
the assistance of others to communicate the work to the public. and therefore those who assist
the author to communicate the work to the public spend time, energy, labour, skill and
creativity and their efforts need to be recognized and protected. These communicators of the
work of the author are referred to as “neighbours” to the author and any rights that emerge
are called as “neighbouring rights.” The international conventions recognise them as
producers of sound recording, performers and broadcasting organizations. Copyright consists
of bundle of rights. a) Exclusive Economic Rights b) Moral Rights and Neighbouring
Rights. Section 14 gives certain rights to the copyright owner which are commonly referred
to as exclusive economic rights. The rights depend upon the kind of work protected.
Copyright means the exclusive right to do or authorize the doing of any of the acts listed in
this section with respect of a work or any substantial part thereof, like the following:

A) In the case of literary, dramatic or musical work not being a computer program- i) the
right 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 the 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

185
of the work; vi) 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 program- i) to do any of the acts specified in clause (a); and it
has additional rights like ii)148 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 programs where the program itself is not the
essential object of the rental.

C) In the case of artistic work149 (i) to reproduce the work in any material form including the
storing of it in any medium by electronic means or other means or depiction in three
dimensions of a two-dimensional work or in depiction in two dimensions of a three
dimensional work; ii) to communicate the work to public; iii) to issue copies of the work to
the public, not being the 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 cinematograph film-150 (i) to make a copy of the film, including a
photograph of any image forming part thereof or storing of it in any medium by electron ic 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 it151
(including storing of it in any medium by electronic 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. Under this section a copy sold once is said
to be a copy already in circulation.

Section 14 (a) (i) of the Act provides that the copyright owner in a literary, dramatic or
musical work not being a computer programme has an exclusive right subject to provisions of
the Act to reproduce the work or authorize the reproduction of the work in any material form
148
Subs. by Act 49 of 1999, section 3 , for sub-clause (ii) (w.e.f.15-1-2000)
149
Subs. by Act 27 of 2012, section 5 (w.e.f. 21-6-2012)
150
Subs. by Act 27 of 2012, section 5, for sub-clause (i) and (ii) (w.e.f. 21-6-2012)
151
Ins. by Act 27 of 2012, section 5 (w.e.f.-21-6-2012).
186
. Therefore it 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 form152.It also includes making a sound recording,
cinematograph film and copies made by digital technology. In Public Trust of India Ltd. v.
Navbharat Press (Bhopal Pvt. Ltd.) & Ors153case, the 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. The defendants published
verbatim copies and or colorable imitation of works or news copyright in which vested with
the plaintiff. Held the act of defendant as infringement of copyright under section 14(a)(i)
read with section 51. The reproduction right includes the storing of it in any medium by
electronic means. In case of artistic work, section 14(c)(i), gives 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 medium was not given. But the amendment of 2012 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.
After analysis of above, one can find that 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. Also the Act does not give any definition of “reproduction” and
“copy” and it does not provide any criteria to differentiate these terms. The fact is that other
rights like translation which means reproducing the work in some other language, adaptation
means reproducing the work in some other form, performance of work which means
reproducing the work by performance also involves reproduction in generic sense of the term.
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 to store the printed work in electronic medium. A very
important question that arose is whether the libraries and publishers can do such act without
infringing the right of author? But Section 14 makes it clear that libraries and publishers have
to seek the permission of the author. The Amendment 2012 introduced clause (n) under
Section 52 which provides that it will not be infringement of copyright if a work is stored for

152
Gerald Dworkin and Richard D,Taylor,Blackstone’s Guide to the Copyright, Patents and Designs Act,1988
(Blackstone Press Ltd,1989) p.56
153
2012(50) PTC 316 (Del).
187
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. In 2005, it is reported154 that
unauthorized publication of books in digitized forms is widely available in the pirate markets
and there are cases where 200-250 best-selling medical and technical text books 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 and an civil and criminal action can be taken against
infringers. For this, 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 direct evidence of reproduction of work by the defendant. The test is
comparing the two marks to decide the question of infringement. Again there is no copyright
in an idea and it can be reproduced. Anyone can make use of an existing idea in creating his
‘original’ work. In Mother Diary Fruit & Vegetable Pvt. Ltd v. Mallikarjuna Dairy Products
Pvt. Ltd155 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. But when an 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.

Piracy - In recent times we are hearing more about ‘piracy’ which is reproduction of work in
material form in literary, dramatic, musical work specially in software, film and music
industry. The pirates generally produce an identical copy of literary or dramatic work by
photocopy or by making illegitimate copies of sound recordings, cinematograph films and
computer programmes. Piracy involves duplication from the legitimate recordings,
compilation and distribution of illegitimate duplicates in the market for commercial gain.
Piracy recording has become 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. The Supreme Court in A.P. vs. Nagoti Venkataramana156 case held that a
video film with the statutory information on their covers like a copy of the film censor
certificate, name and address of the person who has made the video film and a declaration by

154
International Intellectual Property Alliance, 2005 Special 301 Report: India, p.124
155
2012 (49) PTC 346 (Del).
156
(1996) 6 SCC 409.
188
him that he has obtained the necessary license or consent from the copyright owner for
making the copy and name and address of the owner of the copyright has to be furnished for
the benefit of consumers otherwise it shall be deemed to be an infringing copy. Again in
Microsoft Corporation v. Nimesh157case, the defendants were loading software programmes
of Microsoft on to the branded computers without taking any authorization from them and
selling the computers with the unauthorized computer programs to the customers. It was held
that the defendants infringed rights of owners of copyright under sections 14(a)(i) and 51.
Further held that the right of plaintiff were protected under section 40 of Copyright Act,
1957 as both India and USA are members of Berne Convention and Universal Copyright
Convention. In another case158, the 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 authorization or licence from them on to the hard disc of the computers
that were being assembled and sold by them. Held that it amounted to infringement. In
Autodesh, Inc v Prashant Deshmukh159 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
programs of the plaintiff. Held the defendants were liable under section 51 read with sections
14 and 40 of the Copyright Act and International Copyright Order, 1999.Punitive damages
were also awarded to the defendant. The Court further observed, “It is difficult to dispute 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 another case160, 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

157
2012 (51) PTC 205 (Del), also Microsoft Corporation v. Dhiren Gopal, 2010 (42) PTC 1(Del)
158
Microsoft Corporation v. Rajendra Pawar 2008 (36) PTC 697 (Del).
159
2011 (46) PTC 38 (Del).
160
SAP Akteingesellschaft and Anr .v. Sadiq Pasha Proprietors 2011(46) PTC 335(Del)
189
defendants also did not have any education license agreement with the plaintiffs. The Court
held that since Germany and India are party to Berne Convention and UCC, 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 using any pirated
unlicensed software of the plaintiff company and from imparting training in the aforesaid
software programs and the court further imposed punitive damages amounting to Rs.1 lakh
on the defendant. In a recent pirated games case161, where the plaintiff was carrying on
business and handling the R&D, production and sales of various hardware and software used
in the play stations and other home entertainment systems and the defendants were selling the
home entertainment systems of the plaintiff by making modifications and uploading pirated
software. The defendants also used 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 and issue interim injunction. The High Court found prima facie case and
appointed local commissioners.

The most crucial point under right of reproduction is to what extent substantial reproduction
of copyright can be judged. There is no difficulty in grant of an injunction, if the defendant
infringes copyright of the plaintiff by copying whole of the work but the difficulty arises only
when 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. But the word
‘substantial’ is not defined under this Act but it has been held in several cases 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. The courts have laid down different tests to determine
what exactly might be covered by reproduction in particular when the defendant has not
copied the whole work of the plaintiff, line by line but has done something less specific.
Under the totality impression test found by courts, it is observed that 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 a copy. In

161
Sony Computer Entertainment Europe Ltd, v. Harmeet Singh 2012 (51) PTC 419 (Del).
190
Civic Chandaran vs. Ammini Amma162 case it held that 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.
Again in a music case163 the court applied a “lay hearer” test and the “untrained ear test” and
came to a conclusion that there was infringement in music. The facts of this case are the
plaintiff was a music composer who created a music composition/theme tune called “The
Thump” the defendant produced a cinematograph film titled as “Krazzy 4”. The plaintiff
alleged that four songs of the film were substantial reproduction or plagarized version of the
musical composition “The Thump”. The court had taken the following factors into
consideration in deciding infringement by “lay hearer test” that they are to identify the
similarities and differences between the two works, to find out whether the latter can
meaningfully exist without the copied part and to find out the soul of the music 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. It observed that though the musical work may
have length of several minutes the listeners often remember a “catch part” or “hook part”, if
‘the catch or hook part’ however small is copied, the whole of the latter work would amount
to actionable infringement. It is necessary to remind that the desire of infringer is to copy the
attractive, the catchy part of it as he can attract the audience by the attractive part and not the
ordinary. The court said though these are the factors looked into but there may be many other
factors to be considered as it depends on facts and circumstances of each case. It was held in
this case that though the copied part was small portion but it was repeated five to six times in
the defendants work in order to hook the listener and therefore it was a case of substantial
copying. Apart from the above two tests there is another test called the “sweat of the brow”
test which is based on the amount of skill and labour involved in the work created. It is not
infringement if the defendants produces original work by using his skill. The test plays
significant role in deciding adaptation, abridgement and compilation works. In this test, the
Courts will look in to the “minimum of creativity”. The Supreme Court of India in Eastern
Book Company v. D.B. Modak case164 followed the Supreme Court of Canada in the matter of
CCH Canadian Ltd. v. Law Society of Upper Canada165 and held in that case that creative

162
1996 PTC 670 (Ker)
163
Ram Sampath vs. Rajesh Roshan 2009 (40) PTC 78 (Bom)
164
(2008) 1 SCC 1, AIR 2008 SC 809, (2007)13 SCR 182, 2008 (36) PTC1.
165
2004 (1) SCR 339 (Canada)
191
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 owner’s right and fails to allow copyright to protect the public interest in
maximizing the production and dissemination of intellectual works. On the other hand, the
creative standard of originality is too high because it implies that something must be novel or
non-obvious to be original. 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 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 the product of merely labour and capital. Further we make it clear that
the decision would be confined to the judgments of the courts which are in public domain as
by virtue of section 52 of the Act there is no copyright in the original text of judgments. The
derivative work produced by the author must therefore have some distinguishable features
and flavor to raw text of the judgments delivered by the courts and trivial variations and
inputs in the judgment would not satisfy the test of copyright of an author. Again in early
166
1990’s in case of Whelan Associates Inc v. Jaslow Dental Laboratory,Inc case, the third
Circuit Court of Appeals of US had to decide on 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 “look and feel”of the alleged infringing work was substantially similar to that of the

166
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.

192
copyright work, the same test should apply to infringement of copyright in computer
programs. In early 1990’s the software writers felt that the look and feel test was very broad
and was stopping new developments and should be replaced by “Abstraction, Filtration and
Comparison” test and this was developed afterwards in Computer Associates International
Inc v. Altai Inc.167.

Section 14 (a) (ii) of the Act deals with the exclusive right of copyright owner to issue copies
to the public not being copies already in circulation. It simply means the right to bring the
work to public for the first time vests with the author of the work. 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. For example, if X has already sold copies of his work in the market and
Y subsequently markets pirate copies of A’s work then Y has infringed the right of
reproduction of X 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.168 In this case, the court after discussing
sections 13,14,30,51 and 54 of the Act, laid the propositions as 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”. Another
proposition is 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”.

167
23U.S.P.Q. 2d 1241(1992)
168
John Wiley & Sons Inc. & Ors. v. Prabhat Chander Kumar Jain & Ors., 2010 (44) PTC 675(Del). Also
Ashwani Kr Bansal, Intellectual Property Rights : Judicial Law Making with Foreign Bias, 2, Journal of Law
Teachers of India –II (2011)p.1. Facts of the case of John Wiley. Plaintiff were publishers in USA and they
decided to expand their operations in India by introducing Low Price Edition (LPE) of their books. For this they
authorized publishers in India for publishing and distributing their works subject to certain territorial
restrictions. The plaintiffs found the defendants who were publishers and book sellers in Delhi started a website
offering online sales and delivery worldwide of the LPE of plaintiffs publications. Plaintiffs allege that these
acts of defendants of diverting the LPE of books meant for sale in India to the neighbouring states to USA,UK
and other countries amounts to infringement of the plaintiffs copyright in the said books. The defendants
contention is they legally brought the books and exported those and that it 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.
193
Section 14(a)(iii) of the Act deals with the right to perform the work in public or
communications to the public which means a work can be reproduced before the public by
way of performance or recitation of the work. Right of public performance and right to
communicate to public are given as exclusive economic rights to the owners of copyright.
The international conventions i.e., the Berne Convention, TRIPS 1994; WCT, WPPT 1996
provide for these rights as separate exclusive economic rights and are called as neighbouring
rights. They are subject to international169/regional treaty arrangements and not Berne
Convention and UCC or TRIPS. These conventions do not define the term ‘public’ and it is
for the member countries to draw a dividing line between public performances for which
copyright owners consent is required and private performances170 for which consent is not
required. In India Section 2(ff) of the Act defines “Communications to public” as “making
any work available for being seen or heard or otherwise enjoyed by the public directly or by
any means of display or diffusion other than by issuing copies of such work regardless or
whether any member of the public actually sees, hears or otherwise enjoys the work so made
available.” This has been redefined by amendment 2012 to mean ‘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 or performance so made
available. Communication through satellite or cable or any other means of simultaneous
communication to more than one household /place of residence including residential rooms of
any hotel or hostel shall be deemed to be communication to the public. In Indian Performing
171
Rights Society Ltd. v. R. Krishnamurthy , 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
Companies Act and also registered under section 33 of the Copyright Act .The 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

169
Rome Convention 1961; WPPT 1996.
170
Section 52 (k) and (za)
171
2012 (49) PTC 362(Del)
194
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.

Section 14(iv) of the Act provides for right to make cinematograph film or sound recording in
respect of literary, dramatic or musical work by reproducing the work only with a license
granted for the purpose by the owner of copyright in the work. If cinema or sound recording
is made with such license, an independent copyright subsists in that cinema or sound
recording as a protected work under the Act. For example, if A makes a film based upon B’s
copyrighted play without any permission from B and if A’s film is substantially similar to the
play he infringes the right to make cinematograph of B. Again if A makes a film with the
license from B then A has not infringed the right to make cinematograph film of B. In fact A
has a separate copyright as producer in the film made by him. In a recent case the Bombay
High Court in Music Broadcast Private Ltd. v. Indian Performing Rights Society Ltd172 case,
held that 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 this right is
confined to that particular sound recording and that sound recording alone. The owner of the
sound recording can communicate the same to the public, interalia, by broadcasting it or
playing it in public places. The owners of the underlying musical and literary works
embodied in such sound recording cannot interfere with these rights of the owner of the
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 the
Phonographic Performance Ltd. (PPL) and not to IPRS. In 2012, a new section 31D was
inserted so that any broadcasting organization 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.

Section 14(a) (v) of the Act discusses the right to make translation of the work by means of
reproducing the work in a language other than that of the original version. 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

172
2011 (47) PTC 587 (Bom) also Indian Performing Rights Society v. Aditya Pandey 2011(47) PTC 392 (Del.)
195
owner is required173 but the translations also enjoy copyright without prejudice to the rights
of the original authors. Translation gives literary works international dimension and helps in
educational activities in developing countries. According to Prof. Ricketson174 this right “was
probably the most important factor which drew states into international copyright agreement
in the late nineteenth century”. The translation right was the first right to be expressly
included as a minimum Berne requirement because of variety of national languages of the
original members of Berne Union and the fact that each language represented a distinct
market for a work’s exploitation.

The right to make adaptation of the work is dealt in section 14(a)(vi) of the Copyright Act. It
means 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. Section 2(a) of the Act defines
adaptation175. For example, Abhishek has copyright in his novel, the literary work. Vivek
wants to make an abridged version of it, then Vivek will have to take the authorization for
abridgement from Abhishek, since Abhishek has a right to make any adaptations of his
literary work. The copyright in abridgement, of literary work will vest with Vivek. If Vivek
makes the abridgement without authorizations from Abhishek then Vivek infringes the
adaptation right of Abhishek but he does not have a copyright in his abridgement. The
economic right of adaptation sometimes overlaps with the moral right of integrity, which
similarly empowers the authors to control charges in their work. As per the above example,
Vivek will have to preserve the content of Abhishek’s novel. Vivek cannot convert the happy
ending of Abhishek’s novel into a tragic end in his abridgement. If he does then he violates
Abhishek’s special rights under section 57 of the Act176. In Indian law, adaptation right is

173
Berne Convention , 1971 Text, Article 8; Copyright Act, 1957, sections 14(a)(v),14(b)
174
Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886 -1986 (1987)
p.384
175
Section 2(a) deals with “adaptation” which means a) 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;175 (iv) in relation to a musical work, any arrangement or transcription of the work; 175 and (v)
in relation to any work, any use of such work involving its re-arrangement or alteration; for example if A writes
a novel in English in which he has a copyright
176
Section 57 of Copyright Act deals with Author’s special rights. This section provides the author of the work a
special right even after the assignment of copyright therein to some other person that the author of the work
shall have a right to claim authorship on the work as well as the right to restrain or claim damages in respect of
any distortion, mutilation or other modifications in the said work or any other action,in relation to the
copyrighted work which would be prejudicial to his honour or reputation. It further provides that the author shall
196
treated as a discreet economic right like in the Berne Convention. 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.”
The legislative intent for giving a separate economic right status for adaptation may be to
strengthen the basic right of reproduction of author.

The owner of the work has right to make a copy of the work. In case of cinematograph films,
reproduction right is limited to making a copy of the film177and in case of sound recording, to
make any other sound recording embodying it.178 The Act does not define the terms
‘reproduction’ and ‘copy.’ In Star India Private Ltd. v. Leo Burnett (India)179, the Bombay
High Court 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 resembles the film. The making of another film is
not to be covered by the word ‘copy’ under section 14(d) (i). 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. But the position is different in case of literary, dramatic or artistic
work. A narrow copyright protection is provided to a film/sound recording than for literary,
dramatic or artistic work for the reason could be that they are derivative works and, therefore,
the requirement of originality is absent for claiming copyright in cinematograph film/sound
recordings. The court 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 work and the producer has not taken permission of the author of the story then
it will be an infringement of the copyright of the story writer and, therefore no copyright will
subsist in defendant’s film according to section 13(3)(a). Moreover the version copy in sound
recording was earlier covered by section 51(1)(j) but the version copy of films is not covered
by section 52 dealing with acts not amounting to infringement. The amendment of 2012,
section 52(1)(j) is deleted and new proviso is inserted for grant of statutory license for cover
versions only of sound recordings.

not have any right to restrain or claim damages in respect of any adaptation of a computer program to which cl
(aa) of sub section 52 applies. Further this right shall also be available to the legal representatives of the author.
177
Section 14(d)(i)
178
Section 14(e)(i)
179
2003(27) PTC 81(Bom)
197
Another important right is the right of distribution. It is the right to authorize the distribution
to the public copies of a work. Distribution of a work can be by sale, lease, rental, lending,
any transfer of ownership or possession of copies of the work. In India, in the case of literary
(including computer programs), dramatic, musical or artistic the right “to issue copies of the
work to the public not being copies already in circulation”180 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”. A similar right has been given in
case of computer program. Thus the right of sale of author of film or sound recording and
computer program is not exhausted by first sale but they have resale and rental rights in the
respective copies when compared to literary, dramatic, musical and artistic works. Under the
Berne Convention, the public distribution right was given only in case of cinematograph
work181 and the rental right was not provided for. The WIPO Copyright Treaty 1996 and
TRIPS 1994, not only extended the public distribution right to computer programs and to
works embodied in phonograms but also gave commercial rental rights to authors of
computer programs, cinematograph works and works embodied in phonograms. Now the
rental right can fetch revenue to the copyright owners. There was opposition for rental rights
but the WCT treaty has provided certain exceptions like in case of computer programs, the
rental right need not apply “where the program itself is not the essential object of the
rental”182. Our Indian law also provides similar exception. For example, A gives his car on
hire to B and the car has a number of digitally programmed chips to control important
functions. A does not have rental right with respect to computer programs as they form part
of the car, which he gives on hire. Here computer programmes of the car are not the essential
object of rental. A has not infringed any right of the copyright owner of computer programme
by giving the car on hire.

Apart from the economic rights, the author also has moral rights. These rights refer
collectively to a number of rights, which are more of personal than commercial character.183

180
Section 14a(ii),b(i)and c(ii)
181
Article 14 of Berne Convention
182
WCT, Article 7(2)
183
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.
198
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. 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. Moral rights are referred to
as special rights under section 57, Chapter XII of the Indian Copyright Act concerning civil
remedies. These special rights exist even after the assignment of copyright therein to some
other person that the author of a work shall have a right to claim authorship on the work as
well as the right to restrain or claim damages in respect of any distortion, mutilation or other
modifications in the said work or any other action, in relation to the copyrighted work which
would be prejudicial to his honour or reputation. This right shall also be available to the legal
representatives of the author. Section 57 confers additional rights on the author of a literary
work as compared to the owner of a general copyright. 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.184 Section 57 thus clearly overrides the terms of the contract of assignment of the
copyright. That is 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 this section. The contract of assignment will have to be so constructed 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. The Delhi High Court in
Amar Nath Sehgal v. Union of India185 held that plaintiff had a cause to maintain action under
section 57 notwithstanding that the copyright in the bronze 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. The facts in

184
Manu Bhandari v. Kala Vikas Pictures Pvt. Ltd., A.I.R. 1987 Delhi 13 at p. 16 . Facts are 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. Plaintiff alleged that the characters and theme is mutilated through
vulgar dialogues in the film. It was held that since there is a change in the medium from literary to
cinematograph film, some changes are inevitable and ordered deletion of certain dialogues and change in certain
scenes keeping in mind the honour and reputation of the author of the novel.
185
2005 (30) PTC 253(Del.) refer Binny Karla, 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 accessed on May 5th 2013.
199
this case are 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 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 then
perused the various international conventions that stressed the need for respecting, protecting
and preserving the cultural heritage and rights of people. We also find another moral right i.e
moral right of divulgation or disclosure. This right gives the author the authority to control
the act of making an unopened work open to the public. He is the sole authority to decide
whether it should be opened or not and when and how to make it open to the public. It exists
in common law copyright earlier now the right has occupied the interstices of the statutory
economic rights186. In India therefore no such right is provided on the otherhand, section 31
provides for compulsory licence in case of work withheld from public. The WPPT has given
moral rights to performers also.187 The Amendment Act 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.

While copyright protects the rights of authors, another set of similar rights, known as “related
rights” or “neighboring rights”, protects the rights of other owners of rights, namely,

186
The Indian Copyright Act’s exclusive right to issue copies of work to the public effectively gives an author
right to control the first publication of his work and thus closely approximates the right of disclosure under
continental moral right doctrine.
187
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
excercisable by the persons or institutions authorized by the legislation of the Contracting Party where
protection is claimed…..”.
200
performers, producers of phonograms and broadcasting organizations. Two treaties adopted
by the international community in 1996, the WIPO Copyright Treaty (WCT) applicable to
authors and the WIPO Performances and Phonograms Treaty (WPPT) applicable to
performers and phonogram producers related to this neighboring rights. “Related rights have
been described as belonging to the intermediaries in the production, recording or diffusion of
the works of copyright owners. These intermediaries (performers, producers of phonograms
and broadcasting organizations) facilitate the intellectual creation process by assisting authors
to communicate their works to the public.”188 According to WIPO, the following are the
neighboring or related rights: a) performing artists (such as actors and musicians) in their
performances; b) producers of sound recordings (for example, cassette recordings and
compact discs) in their recordings; c) broadcasting organizations in their radio and television
programs. According to WIPO, “a field of rights related to copyright has rapidly developed
over the last 50 years. Related rights are not similar to the copyright that are attributed to the
owners of the work. They differ because they are regarded as intermediaries in the
production, recording or diffusion of works. “The link with copyright is due to the fact that
the three categories of related right owners are auxiliaries in the intellectual creation process
since they lend their assistance to authors in the communication of the latter’s works to the
public. A musician performs a musical work written by a composer; an actor performs a role
in a play written by a playwright; producers of phonograms – or more commonly “the record
industry” – record and produce songs and music written by authors and composers, played by
musicians or sung by performers; broadcasting organizations broadcast works and
phonograms on their stations.”189 At the international level, related rights are conferred by the
International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations, better known as the “Rome Convention”. 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 fully modernized and updated the standards in

188
Alhaji Tejan-Cole, Deputy Registrar, BELIPO’s Article on “Collective Management of Copyright and
Related” 176 Pg 4
189
http://www.wipo.org/copyright/en/index.html

201
respect of sound performances, particularly in relation to digital uses, leaving a void in the
international rights’ system for actors and other audiovisual performers. In 2012 the adoption
of Beijing Treaty on Audiovisual Performances strengthened the position of performers in
audiovisual productions, both in traditional media and in digital networks. Such an instrument
safeguards 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 but the copyright amendment
Act, 1994 incorporated sections 37 and 38 providing special rights to broadcasting
organizations and performers. The producers of phonograms were granted copyright in 1994
by including “sound recordings” under section 13 dealing with works in which copyright
subsists and provides for rights of the producers of sound recordings in section 14 of the 1957
Act. The Amendment Act 2012 inserted a new section 38A giving exclusive rights to
performers and section 38B granting moral rights to the performers for the first time.

Broadcasters in many countries have the right to authorize or prohibit the use of their
broadcasts. Copyright term for these varies not only from country to country, but also from
work to work within a particular country. The major drawback is neither the Copyright Act
nor the international organizations defined “broadcasting organization” but the word
broadcast is defined in the statute under section 2(dd) which means “communication to
public”. a) by any means of wireless diffusion, whether in any one or more forms of signs,
sounds or visual images; or b) by wire ,and includes a re-broadcast.” Therefore from this
definition it is understood that broadcast can be by television, radio or cable. For definition of
“broadcasting” the Prasar Bharti (Broadcasting Corporation of India) Act,1997 has to looked
into which 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 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

202
public by the broadcasting organization or with its consent. The regulatory Acts are the Cable
Television Network (Regulation) Act, 1995 to legalize and regulate the cable network, The
Prasar Bharti Act, 1997 to regulate the public service broadcasters and Telecom Regulatory
Authority of India Act,1997 for regulating broadcasting and cable services.

4.6.1 Rights of Performers:

Rome Convention, 1961 – International Convention for the Protection of Performers,

Producers of Phonograms and Broadcasting Organizations – defines performers as actors,
singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or
otherwise perform literary or artistic works. Performers’ copyright in general refers to rights
which are similar to those granted under the Copyright Act to writers, composers and visual
artists. The purpose is to give performers fair payment for using the recordings of their
performances. If any performer appears or engages in any performance, then he will have a
special right to be known as “performer’s right” in relation to such performance. The
performer’s right will exist upto twenty-five years from the beginning of the next calendar
year subsequent to the year in which the performance is first made. During the continuance of
performer’s right in relation to any performance, by any person who, without the
authorization or permission of the performer, does any of the following acts in respect of the
performance will be held liable for infringement. The following are the acts that would
amount to infringement if done without permission. If any person: a) makes a sound
recording or visual recording of the performance, or b) reproduces a sound recording or
visual recording of the performance, where such sound recording or visual recording was c)
made without the performer’s consent; or d) made for the purposes different from those for
which the performer gave his consent; or e) 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; f) 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 communicated the performance to the public otherwise
than by broadcast, except where such communication to the public is made from a sound
recording or visual recording or a broadcast. But, once a performer has consented to the
incorporation of his performance in a cinematograph film, these provisions do not apply. A
broadcast reproduction right or performer’s right will not be considered to be an infringement
203
if such works: a) are used solely for purposes of bona fide teaching or research; or b) if used
for reporting of current events or for bona fide review, teaching or research

4.7 Rights of a broadcasting organization: Rome Convention, 1961 – International

Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations – defines Broadcasting as the transmission by wireless means for public
reception of sounds or of images and sounds. The copyright owner under Section 14(iii) of
the Act has the “exclusive right to communicate his work to the public or authorise
communication to public of his work or any substantial part thereof.’ The broadcasting
organizations therefore, must obtain the consent or license from the copyright owner for the
purposes of broadcasting their work. Section 37 of the Copyright Act speaks about the right
of a broadcasting organization. It has a special right to be known as “broadcast reproduction
right” in respect of its broadcasts. This right exists for a period of twenty-five years from the
beginning of the next calendar year subsequent to the year in which the first broadcast is
made (section 37(2)). During the persistence of a broadcast reproduction right in relation to
any broadcast, nobody can do the following acts of the broadcast without the license of the
owner of the right. If anyone commits such an act, it will amount to an infringement. a) re-
broadcast the broadcast; b) causes the broadcast to be heard or seen by the public on payment
of any charges; c) make any sound recording or visual recording of the broadcast; d) make
any reproduction of such sound recording or visual recording where such initial recording
was done without license or, where it was licensed, for any purpose not envisaged by such
license and e) sell or gives on commercial rental or offer for such sale or for such rental , any
such sound recording or visual recording referred to in clause (c) or clause (d). Section 39
provides 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 bonafide teaching or research purpose; or
b) excerpts of a broadcast are used, consistent with fair dealing, in the reporting of current
events or bona fide review, teaching or research purpose; or (c) such other acts, with any
necessary adaptations and modifications which do not constitute infringement of copyright
under section 52 of the Act. In Star India Pvt. Ltd v. Piyush Agarwal190 it was held that

190
2013 (54) PTC 222(Del.)

204
‘Where the Board of Cricket Control in India(BCCI) licensed the live broadcasting rights to
Star India Private Ltd., any mobile operator cannot disseminate information through live
score cards, match updates and score alerts via SMS/MVAS, since copyright includes mobile
rights and mobile activation rights. Such dissemination of alerts and latest scores by the
mobile operators cannot qualify as fair dealing. However such operators can report
noteworthy information after a delay of 15 minutes from the live telecast. Again if copyright
subsists in respect of any work or performance that has been broadcast, no license of the
reproduction of such broadcast will be permitted without the consent of the owner of the
rights, unauthorized and prolonged telecast/reply of the cricket match or portion thereof
falling beyond the concept of fair dealing without the permission of the owner amounts to
infringement of broadcasting reproduction right.191

4. 8 Limitations on Copyright: Copyright is not an absolute right. It is subject to three types

of limitations – a) Temporal limitation, b) Non-Voluntary Licences and c) Fair Dealing.

Copyright 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. According to Berne Convention
the limit is life term of author plus 50 yrs. There is no universal copyright term among the
member countries of Berne Union as the national governments are free to provide a longer
term of protection. In India the period of protection of works is lifetime of author plus 60
years. In Europe and USA, the period of protection is life time of author plus 70 years.
Sections 22 to 29 of Copyright Act 1957 deals with the temporal limitations. The term of
copyright differs from classes of work. The duration of copyright in unpublished work is
perpetual. Section 22 provides for term of copyright in published literary, dramatic, musical
and artistic works will exist for a period of the lifetime of the author until sixty years from the
beginning of the calendar year next following the year in which the author dies. Ex: X writes
a novel in 1980 and the novel is published in 1981. If X dies on November 30, 1982 the sixty
years will be counted from 1st January, 1983 the calendar year next following the year in
which the author dies. Section 23 says, if it is a literary, dramatic, etc., work which is
published anonymously or pseudonymously, copyright will subsist until sixty years from the
beginning of the calendar year next following the year in which the work is first published.
Ex: if anonymous or pseudonymous work is published in 1980. Sixty years will be counted
191
ESPN Star Sports vs. Global Broadcast News Ltd., 2008 (38) PTC 477(Del.)

205
from 1st January, 1981 means copyright will subsist till 1st January 2041 the relevant date is
the date of publication of work. If for example the same work is published in 1980 and the
identity of author is disclosed in 1990. The author dies on Nov 30th 1992. Sixty years will be
counted from 1st January, 1993 and copyright subsists till 1st January, 2053. The protection is
given for a longer period than in the first situation. If identity of author is known, the relevant
date is the day of his death. Suppose the anonymous work is a work of joint authorship and
work is published in 1980. Identity of one of the authors is disclosed in 1990 and of the other
is disclosed in 1992 and one of them dies in 2000 and the other dies in 2002. Sixty years will
be counted from 1st January, 2003 and the copyright subsists till 1st January 2063.This is even
more longer duration than the second situation. If it is a pseudonymous work of joint
authorship the term of 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”. Further section 23 says the identity of author shall be deemed to be
disclosed either publicly by both the author or publisher or is otherwise established to the
satisfaction of the copyright board by that author. Section 24 provides that in case of
posthumous works the term of copyright depends on the class of the work. Copyright will
subsist until 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 in the following
situations: a)In the case of literary, dramatic or musical work or an engraving, in which
copyright subsists at the date of the death of the author or, b)in the case of 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. Section 25 was
deleted by the Amendment of 2012 whereby the term of copyright in photograph was sixty
years from the date of publication After 2012, the term of protection is same as a literary
work. In the case of a cinematograph films (section 26) and Sound recordings (section 27),
copyright will exist until sixty years from the beginning of the calendar year next following the
year in which they are respectively published. In the case of Government work192, where
Government is the first owner of the copyright, copyright will subsist until sixty years from
the beginning of the calendar year next following the year in which the work is first

192
“Government works denotes any work which is made or published under the direction or control of: a.) the
government or any of its department .b) any legislature in India c) any Court, Tribunal or other Judicial
authority in India”.
206
published. g) In the case of a work of an international organization (section 29), copyright
will subsist until sixty years from the beginning of the calendar year next following the year
in which the work is first published. h) In case of a public undertaking193 the term of the
copyright subsist for a period of 60 years from the beginning of the calendar year next
following the year in which the work is first published.

Voluntary Licence: Section 30 of the Act deals with voluntary licence. The author has
exclusive rights in his work and therefore he alone has the authority to grant a licence with
respect to his work. The sections provides 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 in194 (writing by him) or by his duly authorized agent, provided that in case of a
licence relating to copyright in any future work, the licence shall take effect only when the
work comes into existence. Suppose if 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 but now this requirement is
dispensed with. In non-voluntary licences the exclusive right to authorize a particular act is
substituted by a right to equitable remuneration which stems from operation of law and they
are compulsory licence, statutory licence and non-voluntary license after expiry of certain
period. Section 31 to 31 B of the Act provides for compulsory licences. Compulsory licence
means it is a licence requiring the copyright owner to grant the necessary authorization. This
doe s not deprive the copyright owner from negotiating the terms of the authorization. If no
amicable agreement is reached between the parties then administrative or judicial authorities
would fix the amount of remuneration. 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. Section 31 deals with works withheld from public. An author has
freedom to publish or not to publish his work this right is called as moral right of divulgation.
Because of this right the author can control the terms and conditions under which the works
are first placed before public. under section 14(1) (ii) it is treated as economic right. In India

193
A public undertaking denotes (a) government undertaking (b) government company (c) a body corporate
established by any government
194
Subs. by Act 27 of 2012 ,S.14, for the words “writing signed by him”(w.e.f.21-6-2012)
207
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. The condition is the term of copyright is subsisting that is it should
have not fallen in public domain and according to section 31(1) the owner of copyright 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 has refused to allow communication to the public by 195(broadcast) of such work or
196
in the case of a (sound recording) the work recorded in such (sound recording), on terms
which the complainant considers reasonable. If these conditions are fulfilled then any persons
can make a complaint to the Copyright Board. The Board then follows the principle of natural
justice the right to be heard and if it is satisfied that grounds of 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. Once the licence is granted the licensee has to pay the
prescribed fee i.e., compensate the owner of the copyright and fulfill any other terms
determined by the Copyright Board. Before the amendment of 2012 compulsory licence
could be obtained only by the complainant with respect to Indian works withheld from public
but now after 2012 amendment it may be granted in respect of any work, whether Indian or
foreign works withheld from public. In Entertainment Network (India) Limited v. Super
Cassette Industries Limited197 the respondent was one of the leading music companies
engaged in the production and /or acquisition of rights in sound recordings. It had copyright
over a series of cassettes and CD’s known as “T-series”. It had copyrights in cinematograph
films and sound recordings. The Appellant M/s. ENIL broadcasts under the brand name
“Radio Mirchi” 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 copyright belongs to the
first respondent in their FM radio network. Appellant is a company which holds license for
running FM radio stations in various cities across India. The important questions that arose
for consideration in these appeals were i) whether the Copyright Board has jurisdiction under
section 31(1)(b) of the copyright Act, to direct the owner of copyright in any Indian work or a

195
Substituted by Act 23 of 1983, for words, “radio diffusion” w.e.f.9.8.1984
196
Subs by Act 38 of 1994, for word “record”, w.e.f.10.5.1995
197
2008 (37)PTC 353(SC)
208
registered copyright society to issue compulsory licenses 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 whether to issue a compulsory license to a particular person or not and the terms
on which the compulsory licence may be issued ,including the compensation?. The Court
held that the Board acting as statutory authority can exercise its power from time to time. It is
therefore not correct to contend that having regard to the provision of sub-section(2) of
section 31, compulsory license can be granted to only one and not to more than one
broadcaster. Further it said the copyright owner has full freedom to enjoy the fruits of his
work by earning an agreed fee or royalty through the issue of licences. It held that a
compulsory licence can be granted even if the work is not t withheld from the public and is
made available to the public. This can happen when a 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. Again the Supreme Court in
Super Casette Industries Ltd. v. Music Broadcast Pvt. Ltd198 discussed the powers of
copyright board under section 31 it held that where the owner of a copyright in a work has
withheld the same from public the copyright board is empowered to hear the owner of the
work by giving reasonable opportunity to be heard and after holding such inquiry as
necessary and on being satisfied that the grounds for withholding the work are not reasonable
, direct the registrar to grant licence to the complainant 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 owner of copyright such compensation and subject to such terms and
conditions as the board may determine.

Section 31A deals with compulsory licence in unpublished or published works. Compulsory
licence may be issued to an applicant under this section if he satisfies i) that the work in
respect of which the compulsory licence is sought is either published or unpublished or
communicated to the public and the work is withheld from the public in India. The reasons
for withholding from the public are not mentioned in the section. ii) 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 posthumous or unclaimed. iii) the applicant prior to filing of an application
198
2012 (50) PTC225(SC)
209
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. iv) Copyright
board after holding an 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. Suppose 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 person.
Section 31B deals with compulsory licence for the benefit of the Disabled. This section was
introduced by the amendment Act 2012. Under this section any person who desires to earn
profit or to do business may apply to the copyright board for a compulsory licence to publish
any work if the conditions are fulfilled like if the publication of work is for the benefit of the
disabled and if copyright subsists in such a work and does not fall under section 19952(1)(z b)
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 licence it must hold an inquiry to determine that the
compulsory licence needs to be issued to make the work available to the disabled., that the
application is made in good faith, that the credentials of the applicant are to the satisfaction of
the Board, and the compulsory licence issued must specify , the means and format of
publication, the time period for which the compulsory licence may be exercised, the number
of copies to be issued and the royalty to be paid to the copyright owner.

Statutory licences are provided under section 31C of the Act. 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

199
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 organization 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 the 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.
210
recording.200 The High Court of Delhi in this case held 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). Prior to 2012, section 52(1)(j) of the Act dealt with production of cover
versions. It held that 52(1)(j) was an illustration of a statutory licence, therefore an
application was required to be made by producer of the version recording . Now after 2012
amendment section 52(1)(j) is replaced with 31C. The section 31C says any person can make
a cover version of sound recording if he fulfills certain conditions i.e the cover version can be
made only after the expiry of five calendar years after the end of the year in which the sound
recording was made; (before the amendment 2012 it was only two years.); the cover version
has to made in the same medium as the last recording unless the medium is no longer in
current use; the packaging or cover of the cover version shall state that it is a cover version
and it shall not in any manner mislead or confuse the public as to the identity. It shall not
contain the name or depiction of any performer of an earlier recording; the cover version
shall not make any alteration in the literary and 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 cover version will have to share
royalty with the producer of earlier recording and author of literary and musical works in
respect of which the cover version is made.201; the producer of cover versions has to produce
minimum fifty thousand copies in a year; this number can be lowered by copyright board in
case of less popular dialects; the producer of the cover version has to give prior notice of his
intention to produce to the owner of first recording and advance copies of all covers and
labels also royalty in advance at the rate fixed by the copyright board. If the producer has not
made full payment to the owner of the sound recording and if he complaints the copyright
board may pass an exparte order directing the producer of a cover version to cease from
making further copies. This section is having adverse impact on production of remixes.
Section 31 D provides for statutory licence for broadcasting of literary and musical works and
sound recording. This section was introduced by the amendment of 2012 to facilitate access
of works to the vast expanding broadcasting industry. Prior to 2012, the access to copyright
works by broadcasters was dependent only on voluntary licensing. The owners and copyright

200
The Gramophone Company for India Ltd. v. Super Cassette Industries Pvt,Ltd. 2010 (44) PTC541(Del.) also
refer ICA,1957,section 31(c )(5)
201
Section 18(1) Amendment Act 2012 and section 19(10) newly inserted in 2012
211
societies dictated terms and conditions unreasonable and the High courts were giving
divergent views in interpreting provisions of compulsory licensing under section 31. Much
litigation was pending before the Copyright board and the High Courts regarding licenses and
royalty relating to broadcast of songs particularly and in this context the legislature thought to
introduce a uniform provision relating to statutory license issued when works are used by
radio and television. According to this section any broadcasting organization desirous of
communicating to the public by way of broadcast or by way of performance of a literary or
musical works or a sound recording which has already been published may do so if they
fulfill conditions like to give prior notice of its intention to the right holder stating the
duration and territorial coverage of the broadcast and ; pay royalty as fixed by the copyright
board in advance and the rate of royalty for radio broadcast is different from the television
broadcast; the names of the authors and the principal performers of work shall be announced
with the broadcast. The broadcaster shall not alter any literary or musical work except which
is technically necessary. The work can be shortened for convenience of the broadcast. The
broadcasting organization shall maintain records 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.

Section 32 deals with license to produce and publish translations of literary or dramatic works
after prescribed period. Any person may apply to the Copyright board in the prescribed
form202 and on payment of a prescribed fee,203 for a license to produce and publish a
translation of a literary or dramatic work in any language. The application should state the
proposed retail price of a copy of a prescribed fee. The board after holding 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 which means the board can issue multiple licences for translation
of a work. Each translation is an original work as it is created by the independent skill and
labour of the respective translators. It applies to 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

202
Section 32(2), Copyright Act, 1957
203
Section 32(3), Copyright Act,1957
212
one year if the translation is in a language not in general use in any developed country. Once
the licence is granted 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.204 Where a licence is granted for translation
of a non-Indian work for the purpose of research, teaching or scholarship, the licence shall
not extend to the export of the copies of translation outside India. Each copy should contain a
notice in the language of the translation that the copy is available for distribution only in
India.205 Section 32(5) provides that any broadcasting authority may apply to the copyright
board for a licence to produce and publish the translation of a non-Indian published work in
printed or analogous forms of reproduction; or 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.
But the licence can be granted only if the translation is made from a work lawfully acquired
and the broadcast is made through the medium of sound and visual recordings; 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 the translation and the broadcasting of
such translation are not used for any commercial purposes.

Section 32A206 provides for compulsory licence to reproduce and publish literary, scientific
or artistic work for certain purposes. It grants 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 is seven years in case of fiction, poetry, drama, music or
art. Three years in case of any work of, or relating to, natural science, physical science,
mathematics or technology and 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 in
the prescribed form on payment of a prescribed fee. The copyright board issues a licence to
the applicant if certain conditions are existing like; if copies of such edition are not made
available in India or copies of such editions have not been put on sale in India. Further as per
section 32A (i) if the copies are available for systematic instructional activity but at a price

204
Section 32(4)(i), Copyright Act, 1957
205
Section 32(4)(ii), Copyright Act, 1957
206
Inserted by Act 23 of 1983, w.e.f . 9-8-1984
213
higher than normal charges in India for comparable works, it would amount to “non-
availability”. The copyright board after holding enquiry will issue a licence, not being an
exclusive licence (to keep the price at competitive prices) subject to conditions prescribed
under section 32A (4). They are if: 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; b) the applicant was, after due
diligence on his part, unable to find such owner; c) 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
airmail to the publisher whose name appears from the work not less than three months before
application for the license; d) the Copyright Board is satisfied that the applicant is competent
to reproduce and publish an accurate reproduction of the work and possess the means to pay to
the owner of the copyright the royalties payable to him under this Section; e) 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; f) a period of six months or a period of
three months must have elapsed in the case of an application for the reproduction and
publication of any work of natural science, physical science, mathematics or technology, or
the reproduction and publication of any other work respectively, from the date of making the
request, or where a copy of the request has been sent 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, g) 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; h) the author has not withdrawn
from circulation copies of the work; and i) an opportunity of being heard is given, wherever
practicable, to the owner of the copyright in the work. Further A license to reproduce and
publish the translation of a work shall be granted under Section 32-A unless such translation
has been published by the owner of the right of translation to any person authorized by him
and the translation is not in a language in general use in India. This is also applicable 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. Section 32B makes available provisions relating to
termination of license. The license will be terminated if at any time after the granting of a

214
license to produce and publish the translation of a work in any language: if the owner of the
copyright in the work or any person authorized by him publishes a translation of such work in
the same language and which is considerably 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. But such a termination will take effect only after the expiry of a
period of three months from the date of service of a notice on the person holding such license
by the owner of the right of translation intimating the publication of the translation. Even if
the license is terminated all such copies which are already produced can be distributed until
the copies are exhausted. After the granting of the license to produce and publish the
reproduction or translation of any work is reproduced and sold in the same language which is
considerably 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 license granted will
be terminated. Here again the termination will take effect only 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 license by the owner of the right of reproduction intimating the sale or
distribution of the copies of the editions of work.

4.9 Acts of Fair Dealing

Apart from temporal limitations and non-voluntary licences there are certain acts specified in
law which limits the exclusive rights of authors. Such provisions are enacted for the purposes
of balancing the rights of owners with the society as a whole. They are called as acts of fair
dealing. Section 52 of the Indian Copyright Act 1957 lays down around twenty or more
actions which even though have the components of a copyright infringement, do not fall
under it due to the intervention of the fair use concept. They are i) a fair dealing with a
literary, dramatic, musical or artistic work for the purposes of research or private study;
criticism or review, whether of that work or of any other work; ii)The making of copies or
adaptation of a computer program by the lawful possesser; in order to utilize the computer
program for the purpose for which it was supplied; to make back copies purely as a
temporary protection against loss, destruction or damage in order to utilize the computer
programme for the purpose for which it was supplied; the doing of any act necessary to
obtain information essential for operating inter operability of an independently created
computer program with other programs by a lawful possessor of a computer program
provided that information is not otherwise readily available; the observation, study or test of
215
functioning of the computer program in order to determine the ideas and principles which
underline any elements of the program while performing such acts necessary for the functions
for which the computer program was supplied; the making of copies or adaptation of the
computer program from a person who has legally obtained copy for non-commercial personal
work; iii) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of
reporting current events-in a newspaper, magazine or similar periodical, or by radio-diffusion
or in a cinematograph film or by means of photographs; iv) the reproduction of a literary,
dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose
of a report of a judicial proceeding; v) the reproduction or publication of a literary, dramatic,
musical or artistic work in 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; vi)the reproduction of any literary,
dramatic or musical work in a certified copy made or supplied in accordance with any law for
the time being in force; vii) the reading or recitation in public of any reasonable extract from
a published literary or dramatic work; the publication in a collection, mainly composed of
non-copyright matter, bona fide intended for the use of educational institutions, 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 the use of
educational institutions, in which copyright subsists; viii) the reproduction of a literary,
dramatic, musical or artistic work–by a teacher or a pupil in the course of instruction; or as
part of the questions to be answered in an examination; or in answers to such questions; 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
record, 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; ix) the making of
records in respect of any literary dramatic or musical work, if–sound recording that work
which has been previously made by, or with the licence or consent of, the owner of the
copyright in the work; and the person making the sound recording has given the prescribed
notice of his intention to make the records, and has paid in the prescribed manner to the
owner of the copyright in the work royalties in respect of all such records to be made by him,
at the rate fixed by the Copyright Board in this behalf; the causing of a recording embodied in
a record to be heard in public by utilizing the record, –at any premises where persons reside,

216
as part of the amenities provided exclusively or mainly for residents therein, or as part of the
activities of a club, society or other organization which is not established or conducted for
profit; 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; x) 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; the publication in a newspaper,
magazine or other periodical of a report of a lecture delivered in public; xi)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 public library for the use of the library if
such books are not available for sale in India; xii) 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;
xiii) the reproduction or publication of –any matter which has been published in any Official
Gazette except an Act of a Legislature; 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; xiv)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; xv) 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; xvi) the production or publication of a translation in any Indian
language of an Act of a Legislature and of any rules or orders made there under–if no
translation of such Act or rules or orders in that language has previously been produced or
published by the government; or 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; xvii) the making or publishing of a painting, drawing,
engraving or photograph of an architectural work of art; xviii) 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; xix) the inclusion in a cinematograph
film of any artistic work permanently situated in a public place or any premises to which the

217
public has access; xx) or any other artistic work, if such inclusion is only by way of
background or is otherwise incidental to the principal matters presented in the film. 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; 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;
xxi) in relation to literary, dramatic, or musical work recorded or reproduced in any
cinematograph film, the exhibition of such film after the expiration of the term of copyright
therein; xxii)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; xxiii) the performances 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. All these acts do not fall under
infringement of copyright.

4.10 International Copyright

International Copyright is dealt under Section 40 to 43 of the Indian Copyright Act which
provides that central government has the power to extend copyright to foreign works. The
central government can by order published in the Official Gazette direct that all or any
provisions of this Act shall apply: 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; 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; in respect of domicile in any territory outside India to
which the order relates in like manner as if such domicile were in India; 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 .The
Act also grants the central government the power to restrict rights in works of foreign authors
first published in India. If the central government is of the opinion that a foreign country is
not giving or has not undertaken to give adequate protection to the works of Indian authors, it
218
can, direct that the provisions of the Act bestowed on copyright on works first published in
India should not apply to works, published after the date specified in the order. This applies
to authors who are subjects of citizens of such foreign country and are not domiciled in India.
This order has to be published in the Official Gazette.

4.11 Infringement of Copyright

Except the acts mentioned under section 52 of the Copyright Act any other act committed by
a person falls under the category of infringement under section 51 of the Act. “A person
copying, distributing, publicly performing, or publicly displaying a copyrighted work or
creating a derivative work based on the original copyrighted work each without the
permission of or a license from the copyright owner will be a direct infringer.”207
“Infringement of copyright happens when works – such as paintings, books, computer
software, films and music – are reproduced without permission from the copyright owners.
Infringement can also occur when works such as plays and films are performed, screened or
made public in other ways without permission from the copyright owner. A person who sells
infringing versions of a work, even if somebody else has made them, is also in breach of
copyright, as is a person who authorizes someone else to make an infringement. If a work is
very distinctive and original, reproducing part of it may be a breach of copyright.”208 To
determine whether an act has the elements of an infringement certain factors are to be taken
into consideration. a) Substantial copying or similarity b) Direct evidence of copying from
the source in which copyright subsists. For Substantial Copying or Similarity there must be
substantial copying of the work to constitute an infringement. Substantial copying involves
many factors. The amount of the material copied is one factor. In Landbroke Ltd v William
Hill209 it was held by the court that the substantiality is a question of fact depending upon the
material copied. Whether the substantial copying was intended for the purpose of saving
himself of the labor is to be looked into. Another test is the determination as to whether there
is a substantial similarity as to the general ideas contained in the two works involved. If a
substantial similarity of ideas is found, then the next test must be applied. This test involves
the application of the ordinary observer test, which is whether the average reasonable person,
on examining the two works, could detect without any help, suggestion, or critical analysis

207
http://www.uoregon.edu/~copyrght/Docs_Html/VI.htm
208
http://www.dcita.gov.au/Article/0,,0_1-2_1-4_14314,00.html
209
(1964) 1 WLR 273
219
that there is substantial similarity in the expressions of the ideas in the two works so as to
constitute infringement. The criteria set forth for the “extrinsic test” by one court was “type
of artwork involved, the materials used, the subject matter, and the setting for the subject.”
The US courts in assessing the amount of proof required to show access and substantial
similarity, some courts have adopted the “inverse ratio rule”. Under the rule, when the
quantum of proof of similarity between plaintiff’s work and defendant’s work is very high,
the degree of access required to be shown may be relatively low. For example, if clear and
convincing evidence of access is presented, the quantum of proof required to show substantial
similarity may be lower than when access is shown merely by a preponderance of the
evidence.210 In Borroughs Wellcome (India) Ltd vs. Uni-Sole Pvt Ltd & Anr211 the dispute
was regarding the cartons of two antibiotic tablets with the name ‘Septran Tablets’ and
‘Simptran Tablets’. Other than the different color of the script there was similarity between
the two tablets which would mislead an ordinary person. The court held that there existed
substantial similarity between the two tablets. A substantial similarity existed between the
two cartons both in the nature of get up and, color combination and essential similarity. On a
bare perusal of two strips, other than the color, everything was similar. The test of direct
evidence of Copying was held in Shyam Shah vs. Gaya Prasad Gupta212 if a person tries to
save his time and labor by copying from another’s work, he is guilty of infringement. To
establish infringement it must be shown that the supposed infringing work closely resembles
the original work. If the person has only taken the essential ideas of a work and expressed it
in an original manner it does not constitute an infringement. In general the factors that are
considered while determining an infringement are: a) Ownership of the original work:
Copyright in a work gives rights that are distinct from ownership of the physical embodiment
of the original work213. The ownership of the copyright is to be established as a first step
towards determination of infringement. b) Causal connection: It must be proven beyond
doubt that the supposed infringement is taken from the work in which the person claims
ownership. It can be either a direct or an indirect connection. If prominent similarities are
shown between the alleged copied work and the original work it will be presumed that an

210
http://www.ibslaw.com/melon/archive/205_qANDa.html
211
1999 (PTC) (19)188 Bom
212
AIR 1971 Allahabad 192
213 W.R.Cornish , Intellectual Property, Patents, Copyright, Trade Marks and Allied Rights (Sweet and Maxwell IIIrd
Edition, Pg 359
220
infringement has taken place. c) Sub-conscious copying: In Rees v. Melville214 the court held
that “copying could occur subconsciously where a person reads, sees, or hears a work, forgets
about it, later on reproduces it genuinely believing it to be his own.” In such situations
proving an infringement depends on a number of elements. These elements include degree of
familiarity with the owners’ work, the character of the work, the objective similarity of the
infringers’ work etc. An indirect copying An infringement can take place if a copy of a work is
made from another copy of the same work. It is an infringement to produce a work similar to the
original copyrighted work even if the defendant had no opportunity to have a look at the original
work. In Schlesinger v. Tunrner215 it was held that plays based on novels which in turn were
based on original plays constituted infringement of the original play. In British Leyland v.
Hamstrong216 it was observed that in a situation wherein the plaintiff in a case owns a
copyright drawing and then turns it into a three dimensional article and that is in turn copied
in three dimension by the defendant the causal connection for the indirect copying will be
established. The basic principles to be followed while deciding infringement of copyright
where clearly laid down in Anand v. Deluxe Films217. The following are the principles laid
down in the case: i) There can be no copyright in an idea, subject-matter, themes, plots or
historical or legendary facts 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. ii) 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 copyright work. If the defendant’s work were nothing but
a literal imitation of the copyright work with some variations here and there it would amount
to violation of the copyright. In other words, in order to be actionable the copy must be
substantial and material, which at once leads to the conclusion that the defendant is guilty of
an act of piracy. iii) One of the surest and 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. iv) Where the theme is the same but is

214
(1911-1916) Mac.C.C 168
215
(1890) 63 LT 764
216
(1986) RPC 279, HL
217
AIR 1978 SC 1613 (1627)
221
presented and treated differently so that the subsequent work becomes a completely new
work, no question of violation of copyright arises. v) 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 co-incidences appearing in two works are
clearly incidental, no infringement of the copyright comes into existence. vi) As a violation of
copyright amounts to an act of piracy it must be proved by clear and cogent evidence after
applying the various tests laid down. vii) 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 a much
broader perspective, wider field and a bigger background where the defendants can by
introducing a variety of incidents give a color and complexion different from the manner in
which the copyrighted work had expressed in idea. Even so, if the viewer after seeing the film
gets a totality of impression that the film is by and large a copy of the original play, violation
of the copyright may be said to be proved.218 In order to prove copyright infringement, the
ownership must be established. A suit for copyright infringement can be initiated by: the
owner of the copyright or by an exclusive licensee. Section 51 of the Copyright Act 1957,
provides that Copyright in a work will be considered to be infringed: If any person, without a
licence granted which is either granted by the owner of the Copyright or the Registrar of
Copyright 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: does act which is supposed
to be done only by owner of the copyright, or 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, or when any person makes for sale or hire, or sells
or lets for hire, or by way of trade displays or offers for sale or hire, or any person distributes
either for the purpose of trade or to such an extent as to affect prejudicially the owner of the
copyright, or by way of trade exhibits in public, or imports into India, any infringing copies
of the work: It would not amount to an infringement if the imported copy of the work is for
the private use of the importer. The forms of copyright are diverse. Hence the acts that
amount to infringement depend on the type of the copyright work. In Sid & Marty Krofft
Television v. McDonald’s Corp219 the Ninth Circuit delineated a three part test for copyright

218
Dr G.B.Reddy ‘Infringement of copyright and doctrine of fair use- the challenges ahead’ DESIDOC
Bulletin of Information Technology, Vol.27,No.4, July 2007 P-29-36
219
562 F.2d 1157 [ 196 USPQ 97 ] (9th Cir.),
222
infringement. First, a plaintiff must establish ownership of a copyright. Second, the plaintiff
must prove “copying” on the part of the defendant. Finally, the plaintiff must establish “illicit
copying,” i.e., the copying of protectable material.220 With regard to the infringement of a
cinematographic work no copyright infringement lies on copying a film on live events. A
copyright will not be granted for a film on live events. If a cinematographic work is based on
any other work without the license from the owner it will amount to an infringement. A film
based on other films will amount to an infringement. The making of a cinematographic work
based on a stage play will amount to an infringement if the permission to do so is not granted.

4.12 Remedies for Infringement

There are various remedies available for copyright infringement. The Act of 1957 provides
for: a) Civil remedies b) Criminal remedies c) Administrative remedies In Mishra Bandhu
Karyalaya v. Shivaratan Lal Kaushal221 it was held that a plaintiff has to establish the
following in order to seek any of the remedies: He is the owner of the copyright; A copyright
subsists in the work infringed at the time the defendant committed the infringement;
Particulars of the infringement complained; The nature of the damage if any suffered by him
or likely to suffer; and What the defendant has done or is proposing to do constitutes
infringement of the copyright222

a) Civil Remedies: The Act provides for certain civil remedies in situation wherein
copyright infringement has taken place. Section 55 of the Copyright Act 1957
provides that where copyright in any work has been infringed, the owner of the
copyright is entitled to remedies like: i) Injunction (interlocutory or permanent); ii)
Damages iii) Accounts and costs.

i) Injunction (interlocutory or permanent) :The Act specifically provides by way of

Section 56 that if the rights comprising the copyright in any work are owned by different
persons, the owner of any such right to the extent of that right, will be entitled to the
remedies. He can also individually enforce such right by means of any suit, action or
other proceeding without making the owner of any other right party to such suit, action or
proceeding. Section 60 of the Act provides certain specific remedies with regard to
groundless threats. It provides that any person who is the owner of copyright in any work
220
http://www.413.com/appeal/Raz.htm
221
AIR 1970 MP 261
222
Bharat’s ‘Law and practice of Intellectual Property in India” Pg 832
223
 (by circulars, advertisements or otherwise) threatens any other person with any legal
proceedings or liability in respect of an alleged infringement of the copyright, the
aggrieved person can institute a declaratory suit. This declaratory suit can be initiated
stating 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. He is also entitled to:
obtain an injunction against the continuance of such threats; and recover such damages, if
any, as he has sustained by reason of such threats. In Super Cassettes Industries Ltd v.
Bathla Cassettes (India) P Ltd223 it was held that the moment a suit is filed for
infringement of copyright by a person who has given the threat, the suit under Section 60
becomes infructuous. It would be helpful to understand the need for remedial measures if
we take a quick sneak at the Anton Piller Order. A new type of protection for copyright
had evolved in courts in England. This order was granted by the court to give better
protection to copyright as well as other forms of intellectual properties. With Anton Piller
order the court, in addition to granting an injunction against the defendant, also orders the
defendant to allow the plaintiff’s solicitors to enter its premises to look for, inspect and
take away any infringing items and documents relating to the defendant’s infringing acts.
In case the defendant refuses to obey the order it will be in contempt of court and calls for
imprisonment. The defendant is at liberty to approach the court to discharge the order
after it has complied with it. If the order is discharged all items and documents seized
should be returned to the defendant. This type of order is available where there is clear
evidence that the defendant has incriminating evidence and may destroy such evidence
before an application can be made to the court. Once an injunction is granted the plaintiff
must either proceed to trial or negotiate a settlement with the defendant. A defendant can
agree to settle the matter rather than go to trial. As part of any settlement a plaintiff can
require the defendant to pay legal costs and damages, surrender all infringing goods, give
full disclosure of its suppliers and customers and agree to a permanent injunction being
granted by the court. It could be termed as a preventive relief similar to an exparte
interlocutory order. Section 62 of the Copyright Act 1957 provides that the District Court
has the jurisdiction to try the cases relating to copyright infringement. The court
limits/jurisdiction is decided as per the local limits of court within whose jurisdiction, at
the time of the institution of the suit or other proceeding, the person instituting the suit or

223
PTC (Suppl) (1) 142 Del
224
 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. It was held in
Mohan Meakin Ltd v. Kashmir Dreamland Distilleries and Anr224, that Section 62 will
not oust jurisdiction of High Court to try a suit. The District Court referred to in this
section is that which is defined in the Civil Procedure Code. The District Court defined
under the Act is the principal court of the district as also High court which has original
jurisdiction over a district or more districts. An injunction can be either interlocutory or
permanent. In order to seek an interlocutory injunction the plaintiffs have to prove the
following: that there exists a prima facie case; that the balance of convenience is in the
favor of plaintiff; and that the refusal to grant the injunction will cause irreparable loss to
him. An interlocutory injunction may be refused by the court in the following situations:
If the plaintiff’s interest can be protected by ordering the defendant to keep an account of
profits; If the defendant is able to establish that his copying will fall under the concept of
fair use; If the plaintiff is under undue delay to approach the legal machinery; If the
plaintiff’s conduct amounts to acquiescence in the infringement; If there is substantial
doubt about the plaintiff’s right to succeed in the action.

ii) Damages: Damages are another type of remedy available in case of a copyright
infringement. Damages, is the sum of money the law imposes for a breach of some duty or
violation of some right. Damages can be of many types. Damages are divided into a number
of categories upon which the recovery may be based, such as: i) Compensatory Damages for
the purpose of making a person “whole again” (put back in the position which existed before
the loss or harm). ii) General Damages which necessarily result from the act or omission –
the amount needed to restore the fair market value of the property to its owner (the injured
party).
iii) Special Damages which do not arise as a result of the wrongful act or omission itself but
arise due to the circumstances after the loss or harm has occurred. Special damages include
out-of-pocket items that can be documented such as the need to rent a property (such as a car
rental) or the cost of services (such as the cost to have property valued or appraised).
iv) Consequential Damages which flow from the loss or harm – consequential damages are of
the same nature as special damages. v) Future Damages that are certain to occur in the future
as a result of the loss or harm, are recoverable so long as there is a satisfactory basis for

224
AIR 1990 J & K 42
225
which the future, anticipated losses or harms can be determined. Without a satisfactory basis,
future damages are speculative and are not subject to recovery.vi)Incidental Damages include
the reasonable charges, expenses, or other costs which flow from the loss or harm – such as
delivery expenses and the cost of photocopies. vii) Punitive Damages can be assessed against
the party at fault to punish the wrong-doer for his/her willful, malicious, or oppressive
behavior and to deter others from acting in a similar manner.225 viii) The amount of damages
depends on situation to situation. In a decided case the Federal Court of USA ruled that
MP3.com Inc. willfully violated the copyright of the Universal Music Group Inc and was
required to pay damages of at least $118 million, or $25,000 for each of Universal’s
estimated 4,700 CD collections. U.S. District Judge Jed S. Rakoff held that “There is no
doubt in the court’s mind that the potential for huge profits in the rapidly expanding world of
the Internet is the lure that tempted an otherwise generally responsible company like
MP3.com to break the law, and that will also tempt others to do so if too low a level is set for
the statutory damages in this case”. There are certain defenses that are available to the
defendants in a suit for copyright infringement. Common legal defenses to copyright
infringement are, if too much time has elapsed between the infringing act and the lawsuit (the
statute of limitations defense); the infringement is allowed under the fair use doctrine
(discussed further below); the infringement was innocent (the infringer had no reason to
know the work was protected by copyright);the infringing work was independently created
(that is, it was not copied from the original), or the copyright owner authorized the use in a
license.226 There are few of the defenses available which can be set up by the
infringer/defendant that there is no copyright existing in the work which was supposed to be
infringed. If the author is not the rightful copyright owner then the question of infringement
does not arise; that the owner of the copyright is not the actual owner. Hence the plaintiff
who has initiated the case does not have any right to sue; that the copied or infringed work
was used for ‘fair use’ purpose as provided by the Act; that the work on which the copyright
infringement is supposed to have taken place is in itself a copied work; that the work that was
granted copyright was a work which was against the public policy or is immoral or seditious;
that the defendant can also claim that his work is original and it was not copied from any
other work; that the suit by itself is barred by limitation; that the person who initiated the

225
http://injury-law.freeadvice.com/property_damage/damages_type.htm
226
www.nolo.com/ChunkPCT/PCT23.HTML
226
suit/plaintiff is guilty of estoppel, consent or acquiescence; that it was an innocent
infringement; that the infringer as on the date of infringement was not aware of the existence
of a copyright for that particular work. Sometimes copyright misuse is also in certain
situations taken up as a defense for infringement. In general the copyright owner has the right
to reproduction, adaptation, distribution, and public performance and display of their work.
There are situations wherein the copyright owners try to use their exclusive rights to gain
more protection than is granted under the copyright laws. There in comes to play the
perception of ‘copyright misuse’.

iii) Accounts and Costs: 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 defendants. In M.L.Gupta v. The Board of School
Education, Haryana,227 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.
Ramakrishna Pictures228 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.

b) Criminal Remedies: Apart from the civil remedies the copyright holder is entitled to seek
criminal remedies too. Both the remedies can be availed simultaneously. The 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 essential element to
constitute the offence of infringement for criminal prosecution. Clear and cogent proof of
knowledge is necessary to establish the commission of the offence.229 No prejudice is likely
to be caused to any of the parties in as much as both the actions are not mutually exclusive
but clearly co-extensive and quite different in content and consequence.230 Chapter XIII of
the Act deals with the offences relating to infringement of copyright. Section 63 of the
Copyright Act lays down provisions relating to offences of copyright. Any person who
knowingly infringes or abets the infringement of: the copyright in a work, or any other right

227
1978, I.P.C.R.83
228
AIR 1981 AP 224.
229
Cherian P.Joseph v K. Prabhakaran Nair, AIR 1967 Ker 234.
230
Sumeet Machines v. Sumeet Research and Holding, 1993 PTC 75 (Mad).
227
conferred by this Act, except the right conferred by section 53A commits an offence under
the Act. The section provides that the accused shall be punishable under the Act with
imprisonment for a term not less than six months and may extend it three years and with fine
not less than fifty thousand rupees but may extend it to two lakh rupees. But if these
infringements were not made for gain on the course of trade or business the court is at liberty
to impose a sentence of imprisonment for a term of less than six months or a fine of less than
fifty thousand rupees. In Jitendra Prasad Singh v. State of Assam231it is held by the court that
an offence under Section 63 of the Copyright Act, 1957 is cognizable and non-bailable.
Section 63A provides that if anyone has already been convicted of an offence under the
Copyright Act and is convicted again of such offence he is punishable with imprisonment for
a term which shall not be less than one year and which may extend to three years. A fine of
not less than one lakh rupees and two lakh rupees can also be imposed. Section 63B inserted
by the amendment 1994 provides that if any person who intentionally uses an infringing copy
of a computer program on a computer he is punishable with imprisonment for a term which is
not less than seven days but may extend up to three years and also with fine which is not less
than fifty thousand rupees but may extent up to two lakh rupees. If these computer programs
are not used for gain or in the course of trade or business, the court is at liberty to impose any
sentence of imprisonment and also impose a fine which may extend to fifty thousand rupees.
Apart from these the police is empowered with the right to seize the infringing copies.
Section 64 of the Act provides that any police officer, not below the rank of a sub-inspector
can 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. After the seizure of such
infringing works if any person is interested in the copies of a work, or plates that are seized
he has to within fifteen days of such seizure, make an application to the Magistrate for such
copies or plates being restored to him. The Magistrate, after hearing the applicant and the
complainant and making such further inquiry, is empowered to take necessary decision and
give an order to that effect. Other than this as per Section 65 of the Copyright Act it is an
offence if 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. Such an
offence is punishable with imprisonment which may extend to two years and a fine too can be

231 2003 (26) PTC 486 (Gau)

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imposed. Section 65A is a new provision inserted by the amendment of 2012 it says 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. It further says nothing in this section shall prevent any person from 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 doing anything necessary to conduct encryption research using a lawfully
obtained encrypted copy; or conducting any lawful investigation; or doing anything necessary
for the purpose of testing the security of a computer system or a computer network with the
authorization of its owner; or operator; or doing anything necessary to circumvent
technological measures intended for identification or surveillance of a user; or taking
measures necessary in the interest of national security. Further section 65B provides for
protection of rights management information this new provision is introduced by the
amendment 2012 which says, any person knowingly removes or alters any rights
management information without authority ,or 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 be avail of civil remedies
provided under chapter XII against the persons indulging in such acts. Section 66 of the Act
provides that while trying any offence, the court is entitled to 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 to the owner of the
copyright. A person can be penalized for making false entries in register. Section 67 of the
Act provides that any person who: makes or causes to be made a false entry in the Register of
Copyrights kept 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, will be

229
punishable with imprisonment which may extend to one year, or with fine or with both.
According to Section 68 of the Act any person will be punishable with imprisonment which
may extend to one year, or with fine, or with both if he makes a false statement: with a view
to deceive any authority or officer in the execution of the provisions of this Act, or with a
view to procure or influence the doing or omission of anything in relation to this Act. Section
68 A clearly lays down that any person who publishes a record or video film a in respect of
any work without displaying on the record or their containers or in video film such as : the
name and address of the person who has made the record; the name and address of the owner
of the copyright in such work; and the year of its first publication, will be punishable with
imprisonment which may extend to three years and shall also be liable with fine. Another
most important category of offence is related to a company. As per Section 69 (1) of the Act
if an offence is committed by a body corporate which includes a firm or other association of
persons, the following person will be held liable to be proceeded against and punished. The
persons are: every person who at the time of the offence was committed was in charge of, and
every person who was responsible to the company for, the conduct of the business of the
company, and the company. If a person can prove that such offence was committed without
his knowledge or that he exercised all due diligence to prevent the commission of such
offence he will not be held liable. Section 69 (2) provides another important aspect that if it is
proved that an offence under this Act has been committed by a company, and that the offence
was committed with the consent or participation of, any director, manager, secretary or other
officer of the company, or by their negligence such director, manager, secretary or other
officer will also be deemed to be guilty of that offence and will be liable to be proceeded
against and punished. The offences committed by a company can only be tried by a court
which is not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first
class. Further Section 71 and 72 say if a person is aggrieved by the order of either a
magistrate or the registrar he can prefer an appeal to the higher authority.

c) Administrative Remedies: Section 53 of the copyright Act provides for remedy to prevent
importation of infringing copy into India prior to amendment of 2012. This section had to be
read with section 11 of the Customs Act. The procedure laid down under new section 53 of
this amendment 2012 of the Act is that 232“ (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 authorized agent,

232
Subs. by Act 27 of 2012, Section 34 for section 53 (w.e.f.21-6-2012)
230
may give notice in writing to the Commissioner of Customs, or to any other officer
authorized in this behalf by the Central Board of Excise and Customs that he is the owner of
the said right with proof thereof; and 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)that 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 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 also brought certain significant changes like section 53 is not
applicable to goods in transit; that the custom authorities are not required to collaborate with
the registrar of copyright before taking any action; that 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;
that 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.

4.12.1 Appeals

The Copyright Act by way of Section 71 and 72 make available the provisions for appeals.
Any person who is aggrieved by an order made by a magistrate can 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. If any person is aggrieved by any final decision or order of
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the Registrar of Copyrights, he can within three months from the date of the order or
decision, appeal to the Copyright Board. If any person is aggrieved by any final decision or
order of the Copyright Board, an appeal can be made within three months from the date of
such decision or order, to the High Court within whose jurisdiction the appellant actually and
voluntarily resides or carries on business or personally works for gain. An appeal will not lie
against the order made by the Copyright Board on the following: the copying of any literary,
dramatic, musical or artistic work issued to the public in a manner sufficient to satisfy the
reasonable requirements of the public; if any records are issued to the public in sufficient
quantities if the term of copyright for any work is shorter in any other country than that
provided in respect of that work under Act.

Choice of the Remedies

Copyright is a negative right granted to the owner of a creative work. It is essentially a

private right to decide how to enforce the rights that is what to do when the copyright work is
used without permission. These rights are exclusively granted to the copyright owner. The
owner has the right to resort to both civil and criminal remedies. If someone violates the
rights of a copyright owner, the owner is entitled to file a lawsuit against the infringer in the
court to: issue orders (restraining orders and injunctions) to prevent further violations award
monetary damages if suitable. In India copyright enforcement improved with the amendment
of the Copyright Act in 1994, which came into force on May 10, 1995. Section 64 of the
Indian Copyright Act 1957 provides that “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, wherever found, and all copies and 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.” Even though this
provision is made available in the Act it is difficult to actually implement it. To have a better
understanding regarding the copyright enforcement it will be better to take a look into a
specific problem i.e., piracy in the film industry. The Indian film industry is largely
threatened by cable piracy, video piracy, CD and VCD piracy. Films appear on cable without
any authority as soon as they are released in the theatres, or at times even earlier. Overseas
rights of Indian films are sold simultaneously along with the release in India. Films are
copied and ‘punched’ on Beta recording machines abroad from where they are then copied on
232
to VCDs. Several copies are made and sent back to India. This is not a problem faced
exclusively in India. This problem to a certain extent has been aggravated by the
advancement in the technology. The Government of India has taken some severe and bold
steps towards an efficient enforcement of Copyright. The government has taken the following
measures for better enforcement of copyright laws: The Department of Education, Ministry
of Human Resource Development, Government of India has constituted a Copyright
Enforcement Advisory Council (CEAC). The CEAC is reconstituted from time to time to
review periodically the progress of enforcement of the Copyright Act and to advise the
government on measures for improving the enforcement. The Copyright Enforcement
Advisory Council (CEAC) was set up on 6 November, 1991. The term of the CEAC, which
expired on 5 November, 2000, was extended for another three years with effect from 6
November, 2000.

4.13 Creation of Separate Cells: Establishment of separate cells in state police headquarters.
Special cells for copyright enforcement have so far been set up in the following States and
Union Territories: Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra
& Nagar Haveli, Daman & Due, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu &
Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab,
Sikkim, Tamil Nadu, Tripura and West Bengal. States have also been advised to designate a
nodal officer for copyright enforcement to facilitate easy interaction by copyright industry
organizations and copyright owners. Encouraging setting up of collective administration
societies and organization of seminars and workshops to create greater awareness about
copyright law among the enforcement personnel and the general public. For collective
administration of copyright, copyright societies are set up for different classes of works. At
present there are three registered copyright societies. These are the Society for Copyright
Regulations of Indian Producers of Films & Television (SCRIPT) for cinematographic films,
Indian Performing Rights Society Limited (IPRS) for musical works and Phonographic
Performance Limited (PPL) for sound recordings.233 The Copyright (Amendment) Act, 1994
provides for setting up of separate copyright societies for different categories of works. Three
copyright societies have been registered so far: one each for cinematograph, musical works
and sound recordings.

233 www.filmpiracy.com
233
Conclusion Even though the copyright owner is granted several right, unless it can be
properly enforced it is equivalent to not having any right at all. The 2012 Act has brought
about changes in the Act in certain aspects like the rights of copyright owner redrafted with a
few additions and deletions, the definition of cinematograph films simplified by giving new
definition for “visual recording” the word “hire” is replaced by “commercial rental”; the right
to store the work in any electronic medium is added as right of producer. A new provision to
section 17 added whereby authors of literary, dramatic, artistic and musical works continue to
have copyrights in their work irrespective of the fact that their work is incorporated in the
film, a new section 38 A is added whereby the performer in a film is given special rights and
therefore he becomes entitled to royalty in case of commercial use of his performance.(whose
performance is not casual and incidental to the film only) ; issuing and granting of licences
with respect to literary, dramatic, musical and artistic in a cinematograph film or sound
recording shall be carried out only through registered copyright society. Provision for
compulsory licences extended to foreign works , compulsory licence extended to published
orphan works as well whether Indian or foreign earlier compulsory licence issued for only
orphan works that too in case of unpublished works, compulsory licence for benefit of
disabled. statutory licences for broadcasting of literary and musical works and sound
recordings also for cover versions introduced. Compliance with WCT and WPPT, moral
rights of performers introduced, changes in administrative machinery done, the term of
copyright specified for photographs is sixty years from death of the author and not from date
of publication, publication of tariff scheme by copyright societies made mandatory, disputes
with respect to assignment of copyright to be settled within six months, relinquishment of
copyright by way of public notice introduced, section 52(1)(a)amended ambit of fair dealing
widened. These are provisions which are introduced by the amendment but there are certain
other provisions which still requires clarity and also on certain definitions and there is need
for effective implementation of the same and need for providing the information to the
society regarding their rights as the fundamental object of copyright is to create balance
between society and the owner of copyright.

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