Copyright Subsists

INTRODUCTION
The idea of Copyright protection only began to emerge with the invention of printing, which
made it for literary works to be duplicated by mechanical processes instead of being copied by hand.
This led to the grant of privileges, by authorities and kings, entitling beneficiaries exclusive rights of
reproduction and distribution, for limited period, with remedies in the form of fines, seizure,
confiscation of infringing copies and possibly damages.
However, the criticism of the system of privileges led to the adoption of the Statute of Anne
in 1709, the first copyright Statute. In the 18th century there was dispute over the relationship
between copyright subsisting in common law and copyright under the Statute of Anne. This was
finally settled by House of Lords in 1774 which ruled that at common law the author had the sole
right of printing and publishing his book, but that once a book was published the rights in it were
exclusively regulated by the Statute. This common law right in unpublished works lasted until the
Copyright Act, 1911, which abolished the Statute of Anne.
Copyright is a well recognised form of property right which had its roots in the common law
system and subsequently came to be governed by the national laws in each country. Copyright as the
name suggests arose as an exclusive right of the author to copy the literature produced by him and
stop others from doing so. There are well-known instances of legal intervention to punish a person for
copying literary or aesthetic out put of another even before the concept of copyright took shape. The
concept of idea was originally concerned with the field of literature and arts. In view of technological
advancements in recent times, copyright protection has been expanded considerably. Today, copyright
law has extended protection not only to literary, dramatic, musical and artistic works but also sound
recordings, films, broadcasts, cable programmes and typographical arrangements of publications.
Computer programs have also been brought within the purview of copyright law.
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.
In India, the law relating to copyright is governed by the Copyright Act, 1957 which has been
amended in 1983, 1984, 1985, 1991, 1992, 1994, 1999 and 2012 to meet with the national and
international requirements. The amendment introduced in 1984 included computer program within the
definition of literary work and a new definition of computer program was inserted by the 1994
amendment. The philosophical justification for including computer programs under literary work has
been that computer programs are also products of intellectual skill like any other literary work.
In 1999, the Copyright Act, 1957 was further amended to give effect to the provisions of the
TRIPs agreement providing for term of protection to performers rights at least until the end of a
period of fifty years computed from the end of the calendar year in which the performance took place.
The Amendment Act also inserted new Section 40A empowering the Central Government to extend
the provisions of the Copyright Act to broadcasts and performances made in other countries subject to
the condition however that such countries extend similar protection to broadcasts and performances
made in India. Another new Section 42A empowers the Central Government to restrict rights of
foreign broadcasting organisations and performers.
The Act is now amended in 2012 with the object of making certain changes for clarity, to
remove operational difficulties and also to address certain newer issues that have emerged in
the context of digital technologies and the Internet. Moreover, the main object to amendments

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the Act is that in the knowledge society in which we live today, it is imperative to encourage
creativity for promotion of culture of enterprise and innovation so that creative people realise
their potential and it is necessary to keep pace with the challenges for a fast growing
knowledge and modern society.

Definition
Copyright subsists in 'every original literary, dramatic, musical and artistic work
includes every original production in the literary, scientific or artistic domain, whatever may
be the mode or form of its expression'” as noted in the Copyright Act provided certain.

Copyright Registration
Copyright exists automatically upon creating a work. There is no need to register
copyright. However, there are advantages in doing so. By registering your work with the
Copyright Office at the Canadian Intellectual Property Office (CIPO), you create a
presumption of ownership and a presumption that copyright subsists in the work (s. 53). The
onus of disproving these presumptions lies with the defendant. Also, the Copyright Act
provides that if a defendant can prove that he/she was not aware that copyright subsisted in
the work, the plaintiff is entitled only to an injunction and not damages. With a registration, a
defendant cannot claim that they had no reasonable grounds to believe that copyright
subsisted in the work.

Citizenship Requirements of the Copyright Act

 The author must meet citizenship requirements of the Copyright Act. In order for copyright
to subsist in Canada, at the time the work was made, the author must be a
 citizen or person ordinarily resident in Canada or
 a citizen in a country to which the Act extends or
 a published work must first be published in Canada or a country to which the Act extends

Required for Copyright to Subsist

In order for copyright to subsist, it must meet the following:
 Work must be original – It has to be original (section 5) and it must be in a fixed or
material form. I.e. there is no copyright in ideas but there is copyright in the
expression of these ideas. Originality means that the work or a substantial part of the
work cannot be copied from another work.
 Exercise of skill and judgment – in order for a work to be original, there must be an
“exercise of skill and judgment” but it does not need to be “creative”, “novel or
unique”. It involves some “intellectual effort” but it “must not be so trivial that it
could not be characterized as a purely mechanical exercise.”
 Inventiveness or novelty not required – the work merely has to be new as a result of
the “skill, labour and judgment of the author”. It cannot be so minimal that it is
considered a “commonplace arrangement of non-copyright material” as noted in the
Tele-Direct (Publications) Inc. v. American Business Information Inc., [1996]
F.C.J. No. 908. It depends on the facts of each case. There is no minimum merit
attaching to the work.

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic
works and producers of cinematograph films and sound recordings. In fact, it is a bundle of
rights including, inter alia, rights of reproduction, communication to the public, adaptation
and translation of the work. It means the sole right to produce or reproduce the work or any

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substantial part thereof in any material form whatsoever (Kartar Singh Giani v. Ladha
Singh & Others AIR 1934 Lah 777).
Section 14 of the Act defines the term Copyright as to mean the exclusive right to do or
authorise the doing of the following acts in respect of a work or any substantial part thereof,
namely
In the case of literary, dramatic or musical work (except computer programme):
(i) reproducing the work in any material form which includes storing of it in any medium by
electronic means;
(ii) issuing copies of the work to the public which are not already in circulation;
(iii) performing the work in public or communicating it to the public;
(iv) making any cinematograph film or sound recording in respect of the work;

making any translation or adaptation of the work.

Further any of the above mentioned acts in relation to work can be done in the case of
translation or adaptation of the work.
In the case of a computer programme:
(i) to do any of the acts specified in respect of a literary, dramatic or musical work; and
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of
the computer programme. However, such commercial rental does not apply in respect of
computer programmes where the programme itself is not the essential object of the rental.

In the case of an artistic work:

(i) reproducing the work in any material form including depiction in three dimensions of a
two
dimensional work or in two dimensions of a three dimensional work;
(ii) communicating the work to the public;
(iii) issuing copies of work to the public which are not already in existence;
(iv) including work in any cinematograph film;
making adaptation of the work, and to do any of the above acts in relation to an adaptation of
the work.

In the case of cinematograph film and sound recording:

(i) making a copy of the film including a photograph of any image or making any other sound
recording embodying it;
(ii) selling or giving on hire or offer for sale or hire any copy of the film/sound recording
even if such
copy has been sold or given on hire on earlier occasions; and
(iii) communicating the film/sound recording to the public.

In the case of a sound recording:

• To make any other sound recording embodying it
• To sell or give on hire, or offer for sale or hire, any copy of the sound recording
• To communicate the sound recording to the public.

Works in Which Copyright Subsists

Section 13 of the Copyright Act provides that copyright shall subsist throughout India in
certain classes of works which are enumerated in the section. Copyright subsists throughout
India in the following classes of works:
• Original literary, dramatic, musical and artistic works;
• Cinematograph films; and

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• Sound recordings.
In Macmillan and Company Limited v. K. and J. Cooper, AIR 1924 PC 75, it was held
that the word ‘original’ does not mean that the work must be the expression of original or
inventive thought. Copyright Acts are not concerned with the origin of ideas, but with the
expression of thought; and in the case of ‘literary work, with the expression of thought in
print or writing. The originality which is required relates to the expression of the thought; but
the Act does not require that the expression must be in an original or novel form, but that the
work must not be copied from another work—that it should originate from the author. What
is the precise amount of the knowledge, labour, judgement or literary skill or taste which the
author of any book or other compilation must bestow upon its composition in order to acquire
copyright in it within the meaning of the Copyright Act cannot be defined in precise terms. In
every case it must depend largely on the special facts of
that case, and must in each case be very much a question of degree.
In Camlin Private Limited v. National Pencil Industries, (2002) Del, Delhi High Court held
that copyright subsists only in an original literary work. But it is not necessary that the work
should be the expression of the original or inventive thought, for Copyright Act are not
concerned with the originality of ideas, but with the expression of thought, and in the case of
a literary work, with the expression of thought in print or writing. Originality for the purpose
of copyright law relates to the expression of thought, but such expression need not be original
or novel. The essential requirement is that the work must not be copied from another work
but must originate from the author.

COPYRIGHT PERTAINING TO SOFTWARE

The definition of ”Literary wok” under section 2 (o) of the Copy right Act,1957 includes
computer programmes, tables and compilations including computer "literary data bases.
Computer programme as stated above was included within the definition of "literary work" in
1984 and the new definition of "computer programme" under Section 2 (ffc) introduced in
1994 means a set of instructions expressed in words, codes 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.

AUTHORSHIP AND OWNERSHIP

Copyright protects the rights of authors, i.e., creators of intellectual property in the form of literary,
musical, dramatic and artistic works and cinematograph films and sound recordings. Generally the
author is the first owner of copyright in a work. “Author” as per Section 2(d) of the Act means
• In the case of a literary or dramatic work the author, i.e., the person who creates the work.
• In the case of a musical work, the composer.
• In the case of a cinematograph film, the producer.
• In the case of a sound recording, the producer.
• In the case of a photograph, the photographer.
• In the case of any literary, dramatic, musical or artistic work which is computer-generated,
the person who causes the work to be created.

Term of Copyright
Sections 22 to 29 deal with term of copyright in respect of published literary, dramatic,
musical and artistic works; anonymous and pseudonymous; posthumous, photographs,
cinematograph films, sound recording, Government works, works of PSUs and works of
international organisations.
Literary, dramatic, musical or artistic works enjoy copyright protection for the life time of
the author plus 60 years beyond i.e. 60 years after his death. In the case of joint authorship

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which implies collaboration of two or more authors in the production of the work, the term of
copyright is to be construed as a reference to the author who dies last.
COPYRIGHT OFFICE
Section 9 of the Copyright Act requires for establishment of an office to be called the
Copyright Office for the purpose of the Act. The Copyright Office is to be under the
immediate control of a Registrar of Copyrights to be appointed by the Central Government,
who would act under the superintendence and directions of the Central Government.

Copyright Board
Section 11 of the Act provides for the establishment of the Copyright Board and empowers
the Central Government to constitute the same consisting of a Chairman and not less than
two, but not more than fourteen members. Chairman of the Board should be a sitting or
retired judge of the High Court or a person qualified to be appointed as judge of the High
Court. The Registrar of Copyright to act as Secretary of the Copyright Board.

Functions of the Copyright Board

The main functions of the Copyright Board are as under:
1. Settlement of disputes as to whether copies of any literary, dramatic or artistic work or
records are issued to the public in sufficient numbers.
2. Settlement of disputes as to whether the term of copyright for any work is shorter in any
other country than that provided for that work under the Act.
3. Settlement of disputes with respect to assignment of copyright as dealt with in Section
19A. 4. Granting of compulsory licences in respect of Indian works withheld from public.
5. Granting of compulsory licence to publish unpublished Indian works.
6. Granting of compulsory licence to produce and publish translation of literary and dramatic
works.
7. Granting of compulsory licence to reproduce and publish literary, scientific or artistic
works for certain purposes.
8. Determination of royalties payable to the owner of copyright.
9. Determination of objection lodged by any person as to the fees charged by Performing
Rights Societies.
10. Rectification of Register on the application of the Registrar of Copyright or of any person
aggrieved.
The Copyright Board has no powers to limit the user of copyright to any particular territorial
area. The appeal against orders passed by the Copyright Board except under Section 6 lies to
the High Court within whose jurisdiction the appellant resides or carries on business.
The scope of the powers of the Copyright Board has been explained in the case of Shri
Urmila Charan Gupta v. Shri Charushila Sharan Gupta and Sumitra Nandand Gupta
1983 PTC 84. In this case it has been held that if the Board, in its powers, thinks fit or agrees
to dispose of the matter of all the 38 books on a single application, no one else is given the
right to question its propriety.

Assignment of Copyright
The owner of the copyright in an existing work or the prospective owner of the copyright in
a future work may assign to any person the copyright Section 18 of the Copyright Act
provides for the assignment of copyright in an existing work as well as future work. In both
the cases an assignment may be made of the copyright either wholly or partially and
generally or subject to limitations and that too for the whole period of copyright or part
thereof. However, in case of assignment of copyright in any future work, the assignment has
the real effect only when the work comes into existence. Section 18(3) explains that a

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assignee in respect of assignment of the copyright in future work include the legal
representative of the assignee, if the assignee dies before the work comes into existence.
Mode of Assignment
Section 19 of the Act provides that an assignment of copyright should be in writing signed
by the owner of the copyright. Mere acceptance of remuneration or delivery of manuscript
does not constitute an assignment of copyright. Oral assignment is invalid and it is
impermissible in law. Setty v. Dr. Suryakantha U. Kamath K.A. Venugopala Setty v. Dr.
Suryakantha U. Kamath AIR 1992 Kar 1.
Section 19 requires that the assignment should be in writing signed by the assignor or by his
duly authorized agent—if the assignment appears from any document and it is signed by the
assignor or by his authorized agent the statutory requirement is fulfilled. Srimagal and Co.
v. Books (India) Pvt. Ltd. & Others AIR 1973 Mad 49: (1972) 2 Mad LJ 610.

Licences
Chapter VI containing Sections 30-32B deal with licences. Section 30 deals with licences by
owners of copyright; Section 30A contains provisions regarding application of Sections 19
and 19A; Section 31 provides for compulsory licence in works withheld from public; Section
31A deals with compulsory licences in unpublished Indian works; Section 31B deals with
Compulsory Licence for the benefit of disabled; Section 31C deals with statutory licence for
cover versions; Section 31D deals with statutory licence for broadcasting of literary and
musical works and sound recording; Section 32 deals with licences to produce and publish
translations; Section 32A provides for licence to reproduce and publish works for certain
purposes; and Section 32B deals with termination of licences.

Licences by Owners of Copyright

Section 30 of the Act empowers the owner of the copyright in any existing work or the
prospective owner of the copyright in any future work to grant any interest in the right by
licence in writing by him or by his duly authorised agent. However, in the case of a licence
relating to copyright in any future work, the licence shall take effect only when the work
comes into existence. Explanation to this section clarifies that where a person to whom a
licence relating to copyright in any future work is granted, 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.

Compulsory Licence for Benefit of Disabled

Section 31B (1) provides that any person working for the benefit of persons with disability on
a profit basis or for business may apply to the Copyright Board in prescribed manner for a
compulsory licence to publish any work in which copyright subsists for the benefit of such
persons, in a case to which clause (zb) of sub-section (1) of Section 52 does not apply and the
Copyright Board shall dispose of such application as expeditiously as possible and endeavour
shall be made to dispose of such application within a period of two months from the date of
receipt of the application.
The Copyright Board may on receipt of an application inquire, or direct such inquiry as it
considers necessary to establish the credentials of the applicant and satisfy itself that the
application has been made in good faith and a compulsory licence needs to be issued to make
the work available to the disabled, it may direct the Registrar of Copyrights to grant to the
applicant such a licence to publish the work.

Copyright Societies

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The Copyright (Amendment) Act, 1994 added a new Chapter VII on Copyright Societies.
Section 33(1) prohibits any person or association of persons to commence or carry on the
business of issuing or granting licences in respect of any work in which copyright subsists or
any other rights conferred by the Act. The aforesaid restriction is not applicable to Copyright
Societies registered under Section 33(3) of the Copyright Act. Under clause (3) of Section 33
Central Government has been authorised to register association of persons as copyright
society after taking into account the following factors:
(i) the interests of the authors and other owners of rights under the Copyright Act;
(ii) the interest and convenience of the public and in particular of the groups of persons who
are most likely to seek licences in respect of the relevant rights; and
(iii) the ability and professional competence of the applicants.

Conclusion
The copyright law is considered as an essential law of protection for a country because it
enriches its national cultural heritage of it. However, higher the level of protection given to
literary, dramatic, musical or artistic work in any country, automatically higher is the number
of intelligent creation, i.e. higher its renown. Thus, in the final analysis, we can say for
economic, cultural and social development, it is the basic perquisites.

Under the Copyright Act, 1957 copyright subsists throughout India in the following classes of
works: Original literary; dramatic, Musical and artistic works; Cinematograph films; and
Sound recordings.
• The definition of “Literary wok” under the Copy right Act, 1957 includes computer
programmes, tables and compilations including computer “literary data bases.
• Literary, dramatic, musical or artistic works enjoy copyright protection for the life time of
the author plus 60 years beyond i.e. 60 years after his death. In the case of copyright in
posthumous, anonymous and pseudonymous works, photographs, cinematograph films,
sound recordings, works of Government, public undertaking and international organisations,
the term of protection is 60 years from the beginning of the calendar year next following the
year in which the work has been first published.