This article is written by Aarti Gosavi. In this article, she aims to answer the question of whether copyright can be obtained over a blog.

Introduction

What is a blog?

A periodically updated website or web page, typically governed by an individual or small group, which is drafted in an informal or conversational style, is called a blog. In Macmillan English Dictionary, the word “blog‟ is defined as “A website containing short articles called posts that are changed regularly. Some blogs are written by one person about their own opinions, interests and experiences, while others are written by many different people. Most blogs allow comments from readers.”

Which was the first blog that was written over the internet?

The first blog that was written over the internet was Links.net by Justin Hall when he was a student of Swarthmore College in 1994. At that time, it was not called a blog but was referred to as a personal homepage. The year 1998 saw the first blog on a formal news website. Jonathan Dube wrote the blog Hurricane Bonnie for the Charlotte Observer website. 

The original blogs were manually kept up to date, very often connected from a central home page or archive. After the year 2000, there was a huge growth in no. of blogs from a total of 23 blogs that were listed on the internet initially to 50 million by 2006.

What is copyright?

Copyright in layman’s language means the right to copy. According to the Copyright Act, of 1957, copyright is the legal protection given to author’s work which could be literary, dramatic, musical, artistic and identifies the author as the exclusive owner of that work which prevents others from copying the author’s work without the permission of the author.

Statistics of copyright registrations in India

Here is the link to Form XIV which is used to register copyright in India.

What form of work can get copyright protection?

Any written material which is of literary, artistic, musical, dramatic in nature, cinematograph films and sound recording which is original in nature and wherein a considerable amount of labour has been invested in the work is eligible for copyright protection. Thus, if one has an idea which has not been converted into any form, e.g. any idea on which the film is based where the idea was just expressed verbally but not written anywhere then such an idea is not entitled to any copyright protection. 

Thus, any work which falls under any of the categories above must be original, but it is not necessary that the work must have an original thought or idea the law talks only about the originality of expression of thought. In Shashank Shekhar Mishra v/s Ajay Gupta, the Delhi High Court held that the plaintiff what the author of the computer programmes in the software, which were stored in the laptop, that was snatched by the defendant and hence, the plaintiff is the owner of the copyright in the computer programmes which is a part of literary work. 

Hence, the defendant had no legal right to transfer the work to any person for monetary purposes or otherwise and such an act would amount to a violation of copyright. Thus, a permanent injunction was passed by the Delhi High Court, restraining the defendant from infringing the copyright held by the plaintiff in the literary works.

What is the duration of copyright protection in India?

According to section 23 of the Act, the term of copyright protection in India is for the lifetime of the author plus 60 years after his or her death starting from the next calendar year of the year in which he or she died. For example, If the work is published on 23 rd September 2018 then the term of copyright protection will begin from 1st January 2019 for the whole lifetime of the author plus 60 years from the date of his death.

What constitutes and does not constitute an infringement of copyright in India?

The following acts constitute an infringement of copyright.

1. Public performance of the work without taking permission from the original author.
2. Using the copyrighted work for any commercial gain.
3. Distributing the work for import or any other purpose in trade.
4. Reproduction of major part of copyrighted work in any material form.
5. Circulating the work to anyone who does not have permission from the author to use it.
6. Transferring and translating the work without permission from the author.
7. Resale or renting of copyrighted material to others.

The acts that do not constitute infringement are covered under Section 52 of the Copyright Act, 1957 which are:

Fair dealing of work which is not a computer programme with the intention to use it for:

• Personal use including research
• Criticism or review of that work or any other work

1. Copies of a computer programme made by the legitimate owner of the computer programme.
2. Any act is done which is necessary to obtain essential information if such information is not otherwise easily available.
3. Any act which is done in order to observe, study or test the functioning of the elements that are present beneath the computer programme.
4. Preparing copies of a computer programme from a legally obtained personal copy for non- commercial use.
5. Storage of work during the process of communicating to the public electronically.
6. Storage of work to provide links or access to such work, if such access or links has not been prohibited by the rights holder of that work.
7. The publication of work for any judicial proceeding or for any report of a judicial proceeding.
8. The publication of work for the members of the legislature.
9. The announcement of current events and current affairs which also includes reporting of a lecture delivered in public.
10. The replication of any work in a certified copy according to the law which is in force at that particular time.
11. The reading or recitation of some extracts of the published literary or dramatic work.
12. The publication of published works for bonafide use in a collection which is not copyrighted.
13. The performance of any literary dramatic or musical work in an educational institution as a part of their educational activities.
14. The use of a recording of any dramatic, musical or literary work in a hall or an enclosed room which does not belong to a hotel or any other commercial establishment.
15. The use of recording in any club, as part of its activities so long as the club does not work for commercial purposes.
16. The performance of literary, dramatic or musical work for free by an amateur club or society. 
17. The storage of any work through electronic means by a non-commercial public library if the library already has a physical copy of the work.
18. Making of not more than three copies of a book which includes a pamphlet, sheet of music, map chart or plan by or under the instruction of a person in charge of a non-commercial public library for the use of a library if such a book is not available for sale in India.
19. The reproduction of any Act which has been published in the official gazette except an Act of Legislature.
20. An Act of Legislature which is published together with any commentary or any original matter.
21. The publication of the report of any committee, commission, council, board or any other body appointed by the Government, only if the publication has been permitted by the Government to be published.
22. The publication of the judgments passed by the court, tribunal or other judicial authority only is permitted by the court, tribunal or other judicial authority only if it has been permitted by that particular judicial authority.
23. The publication of a translation of any Indian Language if such a translation is not available to the public only if there is a statement at a prominent place which says that the translation has not been authorized or accepted as authentic by the Government.
24. The publishing of any painting, drawing, engraving or photograph of a sculpture or other artistic work which falls under sub-clause (iii) of Section 2(c) if such work is permanently placed at any public place.
25. The use of the mould, cast, sketch, plan, model or study made by the author of the artistic work where the author of the artistic work does not own any copyright in such mould, sketch, plan, model or study for the purpose of studying such works as long as the main design is not copied.
26. The preparation of a three-dimensional object from a two-dimensional artistic work, e.g., technical drawing to apply the functional part of any device in the industry.
27. The reconstruction of a building or structure according to the architectural drawings or plans by reference to which the buildings or structure was originally created, only if, the original structure was made by taking due permission from the owner of the copyright of such drawings or plans.
28. The use of literary, dramatic musical or artistic work in a film where the film is shown to the public, only if, the copyright in such works has expired. 

If the copyrighted work is used for the above purposes, then it does not constitute infringement. In the U.S.A., it is known as fair use while in India it is known as fair dealing.

What form of work cannot be copyrighted in India?

The works that do not get copyright protection are:

1. Works that do not have any tangible or written form.
2. Titles, names, short phrases, slogans, methods, factual information, symbols or designs.
3. Ideas or concepts, procedures, process, plans, principles, discoveries, and guidelines but in such cases patent or trade secret law may provide protections to these works.
4. Works that are already in the public domain and for which original authorship is not traceable are not covered under copyright law. 
5. Works for which the copyright has already been over.

Is the blog considered to be a form of literary, musical or artistic work?

The copyright act has not defined what exactly are literary works but Section 2 of the Act clearly says that literary works are limited to literature material as understood in common parlance. Written material may not be of literary standard. A simple work as an index of railway stations or a railway guide, or a list of stock exchange quotations, is considered to be literary work if considerable labour and hard work have been invested in assembling it so that it looks original in nature. 

So, any literary work can get copyright protection, even if it is not of literary standard, as long as one has put a considerable amount of effort in it and which is original in nature. For example, walking down the street, taking down names of people who live at the house on those streets and making a dictionary out of it, as the result of that effort has been considered a justifiable reason to get copyright protection. 

In the following case law, University of London Press Ltd., v University Tutorial Press Ltd, Justice Peterson stated “it may be difficult to define literary work, as used in the Act, but it seems to me plain that it is not confined to ‘literary work’ in the sense in which the phrase is applied, for instance to Meredith’s novels and the writings of Robert Louis Stevenson were in speaking of such writings, like literary works, as one thinks of the quality, style, and the literary finish they exhibit. In my view the words literary work cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word ‘literary’ seems to be used in a sense, somewhat similar to the use of the word ‘literature’ in political or electioneering literature, and refers to written or printed matter.”

Conclusion 

Hence, a blog can be considered to be a form of literary work since it has been written with a considerable amount of labour with original content even if it lacks a certain standard of quality, style and the literary finish and thus it is entitled to copyright protection.

References

1. http://www.legalserviceindia.com/copyright/copyright-literary-book-lyrics-screenplay.htm
2. http://copyright.gov.in/Documents/CopyrightRules1957.pdf
3. https://en.wikipedia.org /wiki/Copyright_law_of_India
4. https://www.internationallawoffice.com/Newsletters/Intellectual-Property/India/Lex-Orbis/Defining
5. Literary-Works-for-Copyright-Protection
6. http://www.saprlaw.com/taxblog/copyright_final.pdf
7. https://en.wikipedia.org/wiki/Blog
8. https://www.webdesignerdepot.com/2011/03/a-brief-history-of-blogging/
9. https://en.wikipedia.org/wiki/History_of_blogging
10. http://www.origiin.com/bin2017/wp-content/uploads/2018/11/Copyright-Registration_-Is-it-
11. required_.pdf
12. http://www.legalservicesindia.com/law/article/990/7/What-cannot-be-copyrighted-in-India
13. https://www.legallanguage.com/resources/copyright/#1566333526093-870a75b3-e5be
14. https://www.researchgate.net/publication/301890434_Understanding_Copyright_Laws_Infringement_
15. Protection_and_Exceptions
16. https://www.bananaip.com/ip-news-center/trademark-and-copyright-statistics-in-india-recap-2018/
17. http://www.ipindia.nic.in/writereaddata/Portal/IPOAnnualReport/1_110_1_Annual_Report_2017-
18.  18_English.pdf
19.  http://copyright.gov.in/Documents/handbook.html
20.  https://singhania.in/wp-content/uploads/2017/08/Indian-Copyright-Law-FAQs.pdf
21.  https://www.webdesignerdepot.com/2011/03/a-brief-history-of-blogging/
22.  https://alejandrorioja.com/blog/history-of-blogging/
23.  https://www.wipo.int/export/sites/www/ip-
24.  competition/en/studies/copyright_competition_development.pdf
25.  www.indiakanoon.org