COPYRIGHT

Copyright is a bundle of exclusive rights granted by statute to the author of the works to exploit
or authorise the exploitation of the copyright work, based on international norms like Berne
Convention, Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and
WIPO Copyright Treaty (WCT). The copyright works in which rights subsist are original
literary, dramatic, musical and artistic works, and cinematograph films and sound recording. This
page gives information as to Indian Law on Copyright and has full texts of Legislations, Cases
and International Conventions.
What is Copyright?
Copyright is one of the chief forms of intellectual property that is afforded protection by the law,
the other three being patents, trademarks, and industrial designs. In its most simplistic
formulation, copyright implies protection against copying of ones work by another. Its chief
object is to encourage people to create original works in different fields like literature, art and
music by rewarding them with the exclusive right for a limited period of exploit the work for
monetary gain. Theoretically, it acts as an incentive for people to come out with newer and newer
copyrightable works, which add to the knowledge stock of mankind.
Copyright is a kind of intellectual property the importance of which has been increasing
tremendously due to the enormous changes in communication, entertainment and computer
industries. The law in this area of intellectual property deals with protection of rights on certain
type of works like literary, dramatics, musical, artistic, cinematograph film and sound recording,
which result from the intellectual labour of human beings. Copyright presents people with an
opportunity to exploit economically their creations either exploiting it themselves on by licensing
their exclusive rights to publishers, producers etc., for consideration.
Justification:
The whole basis of copyright lies in the fact that none should be allowed to appropriate to
himself the fruits of labour of another. In this way, almost all theorists justify the existence of
copyright on the Labour Theory of Property propounded by Locke, according to which a person
can own any property if he has added value to it by his own labour. The things for which
copyright subsists emerge from ideas, concepts, thoughts etc. that are common to all, but these
things have been put in a fixed form using ones mental faculty. The only difference is that while
Locke justified property on the basis of physical labour, here its mental labour that is at work.
History:
The law relating to copyrights has had a very chequered history. The concept of copyright arose
as an exclusive right of the author to copy the literature produced by him. Actually, if originated
not as a shield to protect the authors right but as a sword to prevent unauthorized publication of
books in the medieval period in England against the Church and the King of literature against
them came to be published which necessitated control. Simultaneously, the birth of the printing
press led to a manifold increase in the capacity to copy and made authors also conscious of their
rights and the profits that could be made.
In 1662, Licensing Act of Charles II recognised the rights of the authors for the first time by
controlling printing in a major way. Then in 1710, the Act of Anne (8 Anne c.19) was the first
legislation on copyright, which expressly declared the authors exclusive right of copying and
publishing for a limited period in the case of books and imposed criminal penalties for violations.

The scope of copyright continued to be expanded with the development is society and things like
sculpture, art, engravings etc. were also included within its ambit by various enactments.
In 1911, the Imperial Copyright Act was passed which consolidated the law relating to copyright,
which brought under that legislation different copyrightable subject matters that were governed
by different legislation. The Act declared copyright to be a statutory right, settling the confusion
hitherto existed as to whether copyright is common law right or statutory right. Subject matters
of copyright continued to expand. Newer subject matters like cinematograph films started to be
protected. Copyright Act of 1956 in England substituted the 1911 Act.
In India also, simultaneous developments took place with the Indian Copyright Act of 1847
being based on the 1842 Act in England. The Indian Copyright Act, 1914, was an extension of
the Copyright Act, 1911, to India with necessary modifications and then in 1957, a new
Copyright Act was passed which was modelled along the English Copyright Act of 1956.
The main international treaties governing the law of Copyright ands Neighbouring rights are
TRIPs Agreement; Berne Convention, 1886; Rome convention, 1961; Universal Copyright
Convention, 1952;WIPO Copyright Treaty, 1996; and WIPO Performance and Phonograms
Treaty, 1996
INDIAN LAW ON COPYRIGHT
In India, the 1st legislation on Copyright was the Indian Copyright Act, 1847. This Act continued
to be in force till it was replaced by Indian Copyright Right Act, 1914. The Copyright Act, 1957,
as amended in the years 1984,1994 and 1999, to accommodate the obligations under
international treaties, governs the present law relating to copyright.
Copyrights subsist in:
a) Original literary, musical, dramatic and artistic works.
b) Cinematograph films
c) Sound recordings
Computer programme is considered to be literary work and protected as such. Copyright also
subsists in translations, abridgements or compilations of other works, provided that the consent
of the original Copyright holder had been obtained. The author will then have separate copyright
in respect of the translated or abridge work. All these are considered to be literary work.
General rule of copyright is that author is the first owner of the copyright. However, this rule is
subject to exceptions in the case of employments work, and commissioned work and government
work. Author is the person who put intellectual labour to create the copyright work. But in the
case of sound recording and cinematograph film author is the producer is author.
Copyright Act makes it very clear that copyright is only a statutory right and common law
copyright is not recognised. It is a very exhaustive piece of legislation that seeks to encompass
the entire spectrum of rights and liberation even minutely related to copyright.
Section 14 of the Act lists various rights of a copyright owner of literary, dramatic, musical or
artistic work, cinematograph film, sound recording and computer programme.
Along with the copyright for the author, various neighbouring rights to protect the interests of
performances, broadcasters etc. have also developed to safeguard their interests. The 1994
Amendment Act has incorporated these into the Copyright Law in India. Performers rights was
introduced as Section 38 by the 1994 amendment to the Copyright Act. Under Section 37 right
known as Broadcasting Reproducing Right is given to every broadcasting organization in
respect of its broadcasts for a period of 25 years. Performers rights, protection is given to
various types of performers like actors, dances, musicians, jugglers, acrobats etc. These rights are

also available for a period of 25 years and guarantee rights such as reproduction of sound or
visual recording of the performances and its broadcast or other communication to the public etc.
Term of Protection
The term for which copyright subsists varies according to the nature of the work and whether the
author is a natural person or a legal person. Generally speaking, copyright subsists for a term of
the lifetime of the authors plus 60 years in case of a literary, dramatic, musical or artistic work.
In the case of joint authorship, the term is computed from the death of the last living author. If a
work is published posthumously it is a flat term of sixty years from the date of the publication,
but if the name of the author is disclosed before the expiry of such period, it will be for sixty
years after the death of the author. In the case of cinematograph films and sound recording
copyright subsists for a period of 60 years from publication. Where the owner of the copyright is
the Government on other organization, copyright is for 60 years from publication. Publication, in
this connection would mean making the particular work available to the public by issue of copies
or by communicating the work to the public.
ENFORCING COPYRIGHTS
The owner of a copyright work has the exclusive rights of enumerated under Section 14. In case
a person produces the work or any part of it without being authorized by the copyright owner to
do so, he is said to have infringed the copyright. Section 51 of the Copyright Act deals with
infringement of copyright and labels any act in violation of Copyright Owners rights (contained
in Section 14) or any act of communication to the public without license as infringement of
Copyright. Infringement of copyright would also be constituted if one sells, advertises for sale,
and distributes, infringement of imports copies of the work. In R. G. Anand v. Deluxe Films
where a number of propositions have been laid down by the Supreme Court.
The tests to determine infringement laid down by the Supreme Court are following
1. 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.
2. Where the same idea is being developed in a different manner, it is manifest that the
source being common, similarities are bound to occur. In such a case the courts should
determine whether or not the similarities are on fundamental or substantial aspects of the
mode of expression adopted in the copyrighted work. If the defendants work were
nothing but a literal imitation of the copyrighted 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 a substantial and material one which at once leads to the
conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation
of copyright is to see if the reader, spectator or the viewer after having read or seen both
the works is clearly of the opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the
subsequent work becomes a completely new work, no question of violation of copyright
arises.
5. Where however apart from the similarities appearing in the two works there are also
material and broad dissimilarities which negate the intention to copy the original and the

coincidences appearing in the two works are clearly incidental, no infringement of the
copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and
cogent evidence after applying the various tests laid down by the case law discussed
above.
7. Where, however, the question is of the violation of the copyright of stage play by a film
producer or a director, the task of the plaintiff becomes more difficult to prove piracy. It
is manifest that unlike a stage play a film has a much broader perspective, wider field and
a bigger background where the defendants can by introducing a variety of incidents give
a colour and complexion different from the manner in which the copyrighted work has
expressed the idea. Even so, if the viewer after seeing the film gets a totality of
impression that the film is by and large a copy of the original play, violation of the
copyright may be said to be proved.
But if the alleged activities come under fair use exceptions such activities are considered as not
an infringement. There are a lot of statutory exceptions provided to infringement in Section 52,
the basic purpose of which is to protect public interest and encourage the use of all things for
academic or other similar purposes.
There are 3 types of remedies against infringement of copyright:Civil, Criminal and
Administrative. Civil remedies include injunction, accounts of profits, delivery of infringing
copies and damages for conversion. Criminal remedies provides for the imprisonment of the
accused or fine or both seizure of infringing copies and delivering them to the owner of the
copyright. Administrative remedies include moving the Registrar of the Copyright to impose a
ban on the import or the infringing copies into India.
Civil Remedies:
The kind of civil remedies available against Copyright infringement have already been
enumerated. Very often, a suit for infringement also prays for a grant of interim injunction to stop
the alleged infringement for containing further during the pendency of the suit. However, it is
necessary to bear in mind that if the defendant proves that at the date of the infringement he was
not aware and had no reasonable ground for believing that copyright subsisted in the work, the
plaintiff shall not be entitled to any remedy other than an injunction in respect of infringement
and a decree for the whole or part of the profits made by the defendants by sale of the infringing
copies as the court may in the circumstances deem reasonable.
In a suit for infringement of Copyright in appropriate cases, the court may grant authority to the
along with his advocate to enter the defendants premises and inspect for any infringement and
remove such copies for safe custody without even letting the defendant know of this order. This
is to prevent any destruction of the infringing copies. However, this remedy is given only in very
rare cases and only after the court is satisfied that it is necessary in the interests of justice. The
plaintiff also has to be very particular and thorough in his application if he were to avail of this
remedy.
A suit for Copyright infringement can be filed in the District Court within the local limits of
which one of the plaintiffs is residing, irrespective of where the defendant lives there. It can also
be filed at a place where the cause of action arises, meaning thereby that at a place where the
alleged infringement is said to have been committed. The period within which a suit must be
filed is three years from the date of infringement otherwise the claim will become time barred. A
suit for infringement can be filed either by the owner, the licensee or the assignee of the
Copyright; the publishers in case of an anonymous publication.

Criminal Remedies:
The Copyright Act also enables the owner of Copyright to take criminal proceedings against an
infringer. These two remedies are totally independent in their application and can be available of
simultaneously. But for any conviction, knowledge that an infringement will be committed is
necessary. Any infringement is punishable with a term ranging between seven days to 3 years
and a fine of Rs. 50,000/- to Rs. 2,00,000/- (depending on the facts and circumstances of the
case).
However, if a claim for damages for conversion is made, a separate civil proceeding is necessary.
Enhanced punishment is provided for second and subsequent convictions and the minimum
sentence is 1 year and minimum fine is Rs. 1,00,000/- in these cases.
The complaint is triable only by a metropolitan magistrate or a Magistrate of the first class and
only a police officer of the rank of Sub-inspector and above is given the power to seize the
infringing copies, without warrant for production before the Magistrate. The provisions the
Criminal Procedure Code, 1973, govern the progress of the complaint. In the case of an offence
committed by a company, the company as well as the person who at the time of the offence
responsible for the business of the company shall be deemed to be guilty of such offence.
It should also be noted that all infringing copies and all equipment used for making these copies
are deemed to be the property of the owner of the Copyright and this may be delivered to him.
Transaction with Copyright
Eventhough Copyright protects the right of an author against unauthorised copying of his works,
the author of Copyright rarely exploits the Copyright by himself, instead authorizes others to use
his copyrighted work in return for a proportionate payment. This can be don in two ways:
(a) assignment
(b) royalty
Assignment
The main provisions relating to assignment are contained in Section 18 and 19 of the Copyright
Act. Assignment is actually a transfer of ownership of the Copyright to the assignee on mutually
agreed terms. This is done for a lump sum consideration or for royalty payment. An agreement in
writing signed party is mandated under the law for an assignment to be valid. The period of
assignment is taken to be 5 years if there is no express term in the contract. The assignee has to
exercise his rights within one year from the date of assignment for the assignment to continue
unless there is a contract to the contrary. Assignments are also possible in respect of future work.
These will take effect on the work coming into existence.
It should also be noted that there are various ways in which it is possible to assign Copyright. An
author may assign Copyright for the territory of one country and reserve rights for other
countries to him or he may assign some of the rights to one person and assign the rest of the
rights to others.Another important thing to keep in mind is that registration of assignment is not
compulsory.
Copyright can move from one to another under a bequest. (Section 20)
Licenses:
The law relating to licenses is contained in Chapter VI of the Copyright Act. [A license is an
authority to do something that in the absence of that authority would be unlawful.] Licenses are
generally of two types:
(a) Voluntary licences (those granted by the owners of Copyright)
(b) Compulsory licenses (those provided for by legislation)

It is difficult to distinguish between assignment and license. It will have to be determined only by
looking at the stipulations in the contract. The difference between license and assignment is that
the licensee does not become the owner while an assignee does. As the case of an assignment,
the period of a license is 5 years from the date of assignment in the absence of a contract to the
contrary and the licensee has to exercise his right within one year. For the license to subsist
unless there is a contrary stipulation in the contract.
A license is possible in respect of a furtive work and it takes effect when the work comes into
existence.
The Copyright Act also provides for certain compulsory licences under Section 31. The object
behind this is to safeguard public interest in dissemination of knowledge. The Berne Convention
of 1971 and the Universal Copyright Convention have also made special provisions for
compulsory licenses in developing countries provided that they fulfil certain conditions and are
limited to translation and broadcasting rights.
The Copyright Act provides for compulsory licenses for and Indian work (work whose author
is an Indian on which work is first published in India) if the work have been published or
performed in public and the author has refused to allow further publication, performance,
broadcast etc. Compulsory licenses are also issued to produce and publish translations
copyrightable materials in the interest of public. Copyright Board is the authority, which has the
authority to issue compulsory license.