In t e l l e c t u a l Pr o pe r t y La w I

INTRODUCTORY Intellectual property is a natural/statutory right- derived from property rights- bundle of rights (own, posses, transfer, use) - maybe tangible, intangible, real, physical, etc- IP is property created by human intellect- non-physical property based on an idea- different as it can be used despite transfer TRIPS- recognizes IP as a private right- enjoyed by a person distinct from public right- hence ability to preclude others from use- manifested differently- not defined anywhere- Article 1 of TRIPS merely says that intellectual property refers to all categories of intellectual property specified in the agreement- includes copyright and related rights, patent, trademark, industrial designs, GI, layout of I/C and undisclosed information- classification based on varying degree of intellectual labour Philosophical Justification
1) Lockes Labour Theory- natural rights of the creator- if a person invest labour he should

own the product created thereby- right to exploit it- commercial aspect- ignores quantity and quality of labour 2) Hegels Personality Theory- creation is an extension of the creators personality- moral right over the creation Objective behind Copyright US Constitution- Article 1 Clause 8- to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their work
1) Incentive and reward/compensation for creation 2) Right over expression and not idea- access to knowledge- freedom of speech and

expression 3) Limited Period- public domain- stepping stone for improvement Historical Development Response to development of technology- specifically the printing press- threat of multiple copies- emergence of publishing community- all printing made subject to permission of the king/ queen- stationers or printers guild- published with states permission Statute of Anne- 1710- response to dissatisfaction of the authors concerning lack of protection of their interest- act for encouragement of learning- established author as the owner of the right to copy- rights could be sold to printers- fixed term- 14 year protection for manuscripts and 21 years to those given to publishers- right of forfeiture provided- publications to be registered with stationers- copy to be archived- price to be just and reasonable

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US Copyright Act- 1790- recognized copyright within US- objective of creating knowledge base Berne Convention- 1886- established common copyright amongst several sovereign nationsTRIPS requires adherence- Universal Copyright Convention- 1952- US joined in 1955- now obsolete since US has joined Berne- Fair use- justifiable for third world countries Copyright Act, 1957 Copyright is also a natural right- comes into existence automatically upon creation- bundle of rights Preliminary- Act to amend and consolidate- indicates existence of copyright regime before the Act-Section 16- statutory right- no rights independent of the Act- common law does not apply Section 14- meaning of copyright- exclusive right to do or authorize the doing of any acts stated in the Act with respect to work- work defined section 2(y)- literary, dramatic, musical, artistic, cinematograph film, sound recording- bundle of rights with reference to particular work LITERARY WORK Defined u/s 2(o) - inclusive definition- Berne Convention Article 2- literary and artistic work include every production in literary, scientific or artistic domain whatever be the mode or form of expression Dictionary, Menu Cards, Syllabus, Question Papers, etc Requirement for Copyright Walter v. Lane- public speech by a politician (Lord Roseberry) - skilled short-hand notes takerverbatim copy of speech reproduced in the newspaper- book publishes a collection of the politicians speeches- newspaper sues book publishers- question regarding copyright- copyright was granted to the paper- recognized fixation as an important criteria for copyright Fixation is not a statutory requirement in India- however originality is required u/s 13 as a response to the case- creation and fixation are indivisible parts in almost all works Idea Expression Dichotomy Anil Dasgupta v. Kunal Dasgupta- plaintiff conceived idea of reality television based on match making- Swayamvar- work was registered- meeting with defendants- presentation- concept notedefendants planned their own show Shubh Vivah on similar lines Plaintiff- case of infringement and breach of confidentiality- grant of injunction (balance of convenience) - novelty/originality lost- unjust enrichment/springboard doctrine- concept note was a disclosure in confidentiality

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Defendant-concept in public domain- note was rough and preliminary note- not original workno copyright on theme/idea- other similar themed shows in other countries Issue- whether the idea is novel concept and whether it can be protected and whether information was confidential Idea per se has no copyright- if developed into concept with adequate details it can be registerednovelty in the idea of combining match making with reality television- concept capable of confidential communication if it has attractiveness as a programme and capable of being realized- the concept is the brainchild of the plaintiff- respondent cannot be allowed to reap fruits of his labour- springboarding should not be allowed- special disability- injunction from broadcasting for a period of four months- if plaintiff launches programme then further injunction for two months- head start- no expression on merit Barbara Taylor Bradford v. Sahara Media Entertainment Ltd- appellant sued for infringementserial based on book- only one episode had been broadcasted- based on an interview of a member of the team- others deny having read book- rags to riches theme- common charactersno copyright on basic plot and stock characters- infringement only by comparing similarities of details, events, situations, etc- balance of convenience in favour of respondent Theshold/Test of Originality University of London Press Ltd v. University Tutorial Press Ltd- appointment of examiners on conditions that copyright in examination paper would vest in the university- copyright assigned to plaintiff company- defendant brought publication containing a number of papers set by he examiners- plaintiff argued that setting of paper involved exercise of brainwork, memory and judgment and constituted original literary work- defendants claimed fair dealing for private study- Court agreed the work to be literary- original does not mean novel or inventive thoughtwork should not be copied- must originate from author- no requirement of literary merit Eastern Book Company v. DB Modak- appellants are publishers of reportable judgments- obtain judgments and then copy-edit by making additions- considerable amount of skill, labour and capital expenditure- original literary work- copyright claim over copy-edited text- respondents make grand jurix- copied entirely from SCC verbatim- respondents claimed that there was copyright in headnotes and undertook to not copy the same- contribution/inputs analyzed- cross citations, styling and formatting, margin heading for statutes, numbering, concurring/partly concurring/etc, internal referring, corrections, etc Object of copyright is to prevent unlawful exploitation or reproduction- balance between interest of author and the public- key requirements is originality- no copyright in facts- two classes of literary work- primary and derivative- what is the standard for originality in the latter? Landbroke v. Hill- originality in the context of compilation- football betting coupons arranged in

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a certain form- appellant coupon identical- copyright over work as a whole- because fragments taken separately would not be copyrightable does not means the work as a whole cannot be either Sweat of the Brow Doctrine- literary work is an expression of thought- must originate from author- in case of compilation originality is a matter of degree- skill, labour and capital- no one can be allowed to reap benefits of anothers labour- a new arrangement of old matters will give right to the protection (University of London Press case) Modicum of Creativity Doctrine- minimal creativity is must- Feist Publications Inc v. Rural Telephone Service Co Inc- white pages and yellow pages- respondent refused appellant the right to use their listing- usage without consent- US SC- work must be original to author- some minimal degree of creativity must exist- compilations have creativity in their arrangement, choice of facts, etc- rejected sweat of the brow as creating monopoly in ideas Mathew Bender Co- similar facts as the present one- lack of sufficient originality- no substantial variation CCH Canadian Ltd v. Law Society of Upper Canada- library- photocopies- sweat of brow stretches it too far (low standard)- modicum of creativity (too high)- held that the author must produce a material with exercise of his skill or judgment which is not merely the product of labour/capital yet is not creativity in the sense of novelty Court followed CCH position- mere use of skill/labour/capital not enough- there should be such addition that imparts some quality or character which the original does not possesdistinguishable features- inputs classified into two parts- corrections, citations, etc considered not enough- use of concurring/partly concurring/etc, internal referencing, etc- not a mechanical process- requires careful consideration and extensive reading, etc- partly allowed appeals Burlington Home Shopping v. Rajnish Chibber- compilation of list of clients/customers by devoting time, money, labour, skill amounts to literary work- author has copyright- ex employeedefendant got a copy- now a competitor- compilation from common source is under literary work- slavish imitation determines infringement- bears impression of authors labour and exertions Principle of De Minimis Pepsico v. Hindustan Coca Cola- plaintiff claim copyright infringement over Dil Mange Moreuse by defendants in advertising campaign- original literary work- rare combination of wordsregistration prima facie evidence of copyright- respondent claim that no copyright can exist on advertising slogans- held that slogans cannot be copyrighted as original literary work- maybe used under passing off Abridgment

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Macmillan v. Cooper- appellant produced abridged version of a non-copyright book- extracts from the book knit by words to for an unbroken narrative- copied by respondents who produced a similar book with extracts in addition to what was provided in appellants book- reprint does not entitle copyright- must if reasonable skill, etc is required copyright may be extended- work should not be copied ARTISTIC WORK Defined under section 2(c) - 3 parts- section 2(za) & (i) Copyright over Characters VT Thomas v. Malayala Manorama Co Ltd- cartoon- artistic work- employee of respondentafter termination of employment- continued to use in a different publication- held- author and employee not same under section 17- publisher cannot be author in case of cartoons/characterscartoonist clothes the idea in a form- former employees has no copyright for subsequent cartoons- no adverse effect on circulation Work of Architecture Defined under section 2(b)- different from architectural work of art- protects method of construction- Section 15- inapplicability as far as designs registered under the Design Act are concerned - 2(d) Designs Act- appealing to the eyes- 10 years protection Photograph Section 2(s)- does not include cinematograph film- medium has to be similar MUSICAL WORK Defined u/s 2(p)- protects composition and not the song- allows for version recording- 52(j)author is composer Gramophone Company v. Super Cassette Industries- version recording- neither copying nor reproduction- decided in the context of passing off- not from original soundtrack SOUND RECORDING Defined u/s 2(xx)- rights under section 14(1)(d)- may include musical work- 13 does not provide for original sound recording- but 13(3)(b) solves this problem- substitution of originality requirement- author is producer- producer u/s 2(uu) DRAMATIC WORK Defined u/s 2(h)- inclusive definition- does not include cinematograph film- fixation in writing

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or otherwise- difference between literary and dramatic work is that the latter can be performed Fortune Films v. Dev Anand- if dramatic performance is fixed in film negative it is no longer dramatic work Norowzian v. Arks- whether film can be dramatic work- Joy was a short film- strange dance result of jump cutting- Anticipation- similar technique used- requirement of originality for dramatic work but not for films- dramatic work is capable of being performed before an audience- a film will often but not always be capable of being performed- film may be recording of a dramatic work or a dramatic work in itself- Joy is dramatic- also original- no copyright subsists in style or technique CINEMATOGRAPH FILM Defined u/s 2(f)- includes sound recording- no requirement of originality- 13(3)(a)- substantial part is infringement of copyright in any other work- right to communicate the film to public IPRS v. Eastern India Motion Picture Association- can the existing and future right in music be assigned and otherwise defeated by the producer by engaging the same- IPRS laid down tariff for performance- challenged- rights concerning music vested with producers as part of the soundtrack- 13(4) seeks to ensure rights under 14(1)(a) coexist with 14(1)(c)- if right assigned by lyricists/composers then producer has right to make it heard in public but the author retains the right to perform otherwise than as a part of the cinematograph film- however if the creation is commissioned then producer is vested with the rights Star India v. Leo Burnett- plaintiff owner of copyright in the cinematograph film- kyun kioriginal artistic work including logo and title in peculiar styling and font and containing the words- acquired goodwill and reputation- commercial claimed to be substantial copymisrepresentation- respondent claim that ad is independent creation with skill, labour and effortno copyright in title- common saying or proverb- no copyright on idea or theme- infringing copy- resemblance- held- 1) copying means actual process of duplication and not another film which merely resembles the first- no infringement- 2) substantial copying- question of quality not quantity- no prima facie case of substantial copying- 3) photograph claim not valid since it excludes cinematograph film- also several differences in the two- 4) logo- some effort must have been put in devising and not something known to public- literary work- public domain- 5) passing off- requirement is goodwill- misrepresentation- suffered or likely to suffer damage- two concerned things are in different fields- no question of passing off- commercial cannot affect viewership- character merchandising- no case for plaintiffs RG Anand v. Delux Films- staging of play- good review- synopsis for film making- no clear commitment- announced production of movie- case of adaptation- provincialism as central theme- court lays down seven principles for infringement- 1) no copyright in idea/subject matter/ themes/plots/historical/legendary facts; violation restricted to form, matter and arrangement

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2) when source is common similarities are bound to occur- court has to determine whether similarity is on fundamental or substantial aspects of the expression 3) violation from the point of view of the reader, spectator or viewer who after having read or seen both works gets an unmistakable impression that the subsequent work is a copy of the first 4) same theme, presented and treated differently such that it becomes a new work, no violation 5) material or broad dissimilarities which negative intention to copy, incidental similarities, no infringement 6) clear and cogent evidence 7) stage play to film- difficult- film has broader perspective and wide fieldtotality of impression from the point of view of viewer- treatment and presentation differentonly central idea is same COMPUTER GENERATED WORKS Types- human skill & labour, no, combo- 2(d)(vi)- author- Section 178 CDPA- computer generated work is where there is no human author- section 9(3)- copyright vets with the person who arranged it Express Newspapers v. Liverpool Daily Post- coupons- computer generated grids- appointed a person under contract to develop program for generation- copied by rival newspaper- whether the grid is copyrightable?- involves human, skill, etc in developing the program- anything worth copying is worth protecting- right vested with newspaper- case of direct copying- market likely to get affected AUTHORS AND OWNERS 17- Author the first owner- conditions/provisos- joint ownership recognized- 2(z) Najma Heptulla v. Orient Longman- Prof. Kabir wrote book out of dictates- later approved by Maulaza Azad- some parts kept in seal- to be opened later and published- agreement with Kabirrepresentatives of Maulana want otherwise- if two person collaborate with common design and produce a literary work they are co-authors- in whose language is it written test in Donoghues case- disapproved- intellectual contribution by two or more towards composition- hence it was a case of joint authorship- facts state that the legal representatives gave consent to the arrangement Gee Pee Films v. Pratik Chowdhury- defendants are singer, lyricists and composers hired by plaintiff to compose two songs on remuneration- later released cassettes separately- case of contract for service and not contract of service- former is employment whereas later is commissioning- test is whether person is performing as a person in business on his own accountif yes then contract for service- so no right with plaintiff- plus he does not fall within the term producer- responsibility means legal consequence and not just financial responsibility TRANSFER OF COPYRIGHT Assignment is transfer whereas license is permission- assignment for communication- only those media known then- royalty/payment is indicator of whether a particular document is assignment

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or license- assignment there is lump sum payment whereas license involves apportionment Gramophone Co. v. Shanti Films- soundtrack of movie assigned- royalty clause in agreementproducers started exploiting rights- in case of assignment/exclusive license the assignee can sue owner for infringement- not the case as far as simple licenses are concerned- intention to be gathered from words- use of royalty will not negate meaning- case of assignment ENIL v. Super Cassette Industries- - Two conflicting opinions of Delhi and Bombay High Court over the grant of compulsory license on reasonable remuneration- interpretation of section 31 was made keeping in mind the scheme of the Act- construction in light of the balancing nature of IP law- necessary to construe law with regards to international covenants- public interest in availability of the work- grant of compulsory license must be with respect to this- act gives full freedom to owner to exploit and reap benefits through voluntary licenses- compulsory licenses are exception the general rule- refusal must be given a contextual meaning- offer is not sufficient- offer on unreasonable term is refusal- public must mean public all around the country- board can exercise its power from time to time- act provides mechanism- no entitlement in favour of individual broadcaster- can approach anytime there is unreasonable terms- clause 2 should be confined to clause a i.e. when it is withheld INFRINGEMENT 51- Primary, secondary liability- subconscious University of Oxford v. Narendra Publishing House- plaintiff published text book for students as per course structure prescribed by J&K Board- collaboration- copyright with plaintiffsubstantial skill, judgment, money- original literary work- defendants published books in violation of copyright- reproduced content with solutions/answers- poor/degrading substitutedefendants claimed fair use- questions from a common pool- derivative work- higher standard for copyright- argued as review- talk on idea-expression dichotomy- doctrine of merger- where idea-expression is intrinsically connected and expression is indistinguishable protection cannot be granted- mathematical questions are expression of laws of nature- language is limited means to describe the same- patent does not allow protection to equations- no creativity in arrangementfair use- necessary part of the structure- four factors identified in Harper v. Nation- 1) purpose and character of use 2) nature of the copyrighted work 3) substantiality of the portion used 4) effect on the potential market- to be treated together- whether the new work is transformativevalue addition- not mere substitute- work amounts to transformative work hence review- review is re-examination/revisiting OTHER RIGHTS Broadcast Reproduction Right Separate right granted to broadcasters- u/s 37- investment by broadcaster

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Taj Television v. Rajan Mondal- new launch of channel- garnered interest- broadcast rights of world cup- number of operators broadcasting without licensing agreement- loss of revenueexparte John Doe orders sought against wrongful transmission- court commissioner appointed Performers Right Performance and Performer- 2(q) and 2(qq)- interest of performers need to be protected- if performance incorporated in cinematograph film with permission- no right applies- WIPO Performance and Phonogram Treaty- led to incorporation- bootlegging- unauthorized recording of live performance Fortune Films v. Dev Anand- plaintiff was a cine artiste of a Hindi motion picture entitled "Darling Darling" produced by the first defendants. In the course of correspondence exchanged between the parties, it was inter alia provided that in consideration of his services to the producers he would be paid remuneration of Rs. 7 lakhs in certain amounts on or before the release of the picture in the territories of Delhi-U. P., Bengal, Nizam, Mysore, C.P.-C I., Tamil-Nadu and Andhra. It was further provided that the copyright in the cine artiste's work in the motion picture was to vest in the cine artiste till full payment of the agreed amount was made to him on which it would automatically vest in the producers. The plaintiff alleged that the producers were releasing the picture in the Bombay and overseas territories without full payment of the remuneration to him, and he sued to restrain the producers from doing so. Held that the performance by an artiste in a cinematograph film cannot be equated to any of the five categories of "artistic work" (namely, a painting, a sculpture, a drawing, an engraving or a photograph) in Section 2(c). A cinematograph film was expressly excluded in the definition of a dramatic work in s.2(h). In view of the definitions of "artistic work", "dramatic work" and "cinematograph film" in Section 2(f), it would appear that the Copyright Act, 1957, does not recognise the performance of an actor as a "work" (defined by Clause (y) of Section 2), which is protected by the Copyright Act. Moral Right Article 6bis of Berne- protects attribution and integrity- independent of authors economic right and even after transfer- section 57- authors special rights Mannu Bhandari v. Kala Vikas Kendra- other modification to be read as ejusdem generis to distortion and mutilation- power of modification granted under terms of contract- only certain modifications suitable to convert novel into film- image lowered if distorted version is allowed to be presented- apprehension of loss of reputation is real- suitable modifications suggested Sehgal v. Union of India- vigyan bhavan- bronze metal sculpture- later pulled down and consigned to store room- destruction without permission- paternity/attribution right- right to have name on the work and be identified as author- divulgation or dissemination right- integrity rightretraction- section 57 must be interpreted in wider amplitude to include destruction of a work- it

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is the ultimate and extreme form of mutilation