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This article is written by Shalu Gothi, B.A.LLB (Hons.) from FIMT, School of Law, New Delhi. This article gives you a general idea about the provisions related to copyright in India.

Introduction

Copyright law as its name suggests is the simple law that suggests if you create something you own it and only you get to decide what happens next with it. In India, law related to copyright is governed by the Copyright Act, 1957. The objective of this copyright law is mainly twofold: first to assure authors, composers, artists, designers and other creative people, who risk their capital in putting their works before the public, the right of their original expression, and second to encourage others to build freely upon the ideas and information conveyed by a work. 

Historical development in India

In India, the earliest law of copyright was enacted by the British during the realm of East India Company that is the Indian Copyright Act, 1847 which was passed for the enforcement of rules of English copyright in India. After it, by Copyright Act 1911,  this law was repealed, replaced and applied to all British colonies including India. Further, it was again modified in 1914 by the Indian Copyright Act, 1914, which remained applicable in India until replaced by the Copyright Act, 1957 by the parliament of sovereign India.

Subject matter of copyright

All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The Copyright Act 1957, it may be subjected for the following works:

  • Original Literary Work, 
  • Original Dramatic work,
  • Original Musical work,  
  • Original Artistic Work,
  • Cinematography films, and
  • Sound recordings.

Original Literary Work

It is the product of the human mind which may consist of a series of verbal or numerical statements, not necessarily possessing aesthetic merit, capable of being expressed in writing, and which has been arrived at by the exercise of substantial independent skill, creative labor, or judgment. The Copyright Act,1957 provides an inclusive definition of literary work, according to which the literary work includes computer programming, tablets, and compilations including computer database.

Original Dramatic Work

According to the Copyright Act,1957, the dramatic work includes any piece for recitation, choreographic work or entertainment in dumb shows, the scenic arrangement or acting form which is fixed in writing or otherwise but does not include a cinematographic film. Since the definition is an inclusive one, the other things fall within the general meaning of dramatic work, and may also be covered by the definition.

Original Musical Work

According to the Copyright Act, 1957, the musical work means any work consisting of music and includes any graphical notion of such work, but does not include any words or any action intended to be sung, spoken or performed with the music. In order to qualify for copyright protection, a musical work must be original. 

Original Artistic Work

According to the Copyright Act, 1957, the artistic work includes any painting, sculpture, drawing, engraving photograph of any work possessing artistic qualities. However, it also includes the architecture and artistic craftsmanship of such works. 

Cinematographic Films

According to the Copyright Act,1957 cinematographic films includes any work of visual recording and a sound recording accompanying such visual recording and the expression cinematograph shall be construed as including any work produced by any process analogous to cinematographic including video films. 

Sound Recording

According to The Copyright Act, 1957, sound recording suggests that a recording of sounds from which that sound may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.

Clause (a) of this Section 13 provides the definition of original work whereas clause (b) and (c) protect by-product works. This Section stipulates that copyright is subject to the provisions of the aforesaid Section and therefore the different provisions of the Act don’t exist de-hora and outside the ambit of the Act, it’s a right created under the statute and no right outside the aforesaid Act is claimed.

Rights of the copyright holder 

In the Copyright Act, 1957, the owner possesses the negative rights which are to prevent others from using his works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are two types of rights given to the owner:

  • Economical rights; 
  • Moral rights.

Economic rights

This right is also known as the Exclusive Rights of the copyright holder provided under Section 14. In this Act different types of work come with different types of rights. Such as:

In the case of original literary, musical, and dramatic work:

  • Right to reproduce;
  • Right to issue copies;
  • Right to perform at public;
  • Right to make cinematography and  sound recording;
  • Right to make any translation;
  • Right to adaptation; and
  • Right to do any other activities related to the translation or adaptation.

In the case, of computer program work:

  • Right to do any act aforesaid mentioned; and
  • Right to sell, rent, offer for sale of the copyrighted work.

In the  case of artistic work:

  • Right to reproduce;
  • Right to communicate;
  • Right to issue copies;
  • Right to make any cinematography and sound recording;
  • Right to make an adaptation; and
  • Right to do any other activities related to the translation or adaptation. 

In case of a cinematograph film work:

  • Right to sell, rent, offer for sale of the copyrighted work; and
  • Right to communicate.

In the case of  a sound recording work:

  • Right to communicate;
  • Right to issue copies; and
  • Right to sell, rent, offer for sale of the copyrighted work.

Moral rights

In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects the ethical rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the creator, just as much as the economic rights reflects the author’s need to keep the body and the soul of his work out from commercial exploitation and infringement. These rights are supported by Article 6 of the Berne Convention of 1886, formally referred to as a world convention for the protection of literary and inventive works, whose core provision relies on the principle of national treatment, i.e. treats the opposite good as one’s own.

Section 57 of The Copyright Act,1957 recognize two types of moral rights which are:

  • Right to paternity– which incorporates the right to assert the authorship of the work, and right to forestall others from claiming authorship of his work; and
  • Right to integrity-  which incorporates right to restrain, or claim of damages in respect of any distortion, modification, mutilation, or any other act relates to the said work if such distortion, multiplication or alternative act would be prejudiced to claimant honor or name.
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Authorship and Ownership in copyright 

Section 17 of this Act recognizes the author as the first owner, which states that subject to the provision of this Act, the author of a work shall be the first owner of the copyright therein:

  • In the case of literary or dramatic composition, the author,
  • In the case of musical work, the musician,
  • In the case of creative work apart from photography, the artist,
  • In the case of photographic work, the artist,
  • In the case of cinematographic or recording work, the producer,
  • In case of any work generated by any computer virus, the one who created.

However, this provision provided to bound exception:

  • In case of creation is made by the author underemployment of the proprietor of any newspaper, magazine or any periodic, the said proprietor,
  • In the case where a photograph is taken, painting or portrait is drawn, cinematograph is made for the valuable consideration of any person, such person,
  • In case of a work done in the course of the author’s employment under the contract of service, such employer,
  • In case of  address or speech delivered on behalf of another person in public, such person,
  • In the case of government works, the government,
  • In the case of work done under direction and control of public undertaking such public undertaking, and
  • In the case of work done in which provision of Section 41 apply, concerned international organizations. 

Assignment of copyright

The owner of the copyright can generate wealth not only by exploiting it but also by sharing it with others for mutual benefit. This can be done by the way of assignment and licensing of copyright.

Only the owner of the copyright has the right to assign his existing or future copyrighted work either wholly or partly and as a result of such assignment the assignee becomes entitled to all the rights related to copyright to the assigned work, and he shall be treated as the owner of the copyright in respect of those rights.

Mode of the assignment agreement 

As per Section 19, these conditions are necessary for a valid assignment: 

  • It should be in writing and signed;
  • It should specify the kinds of rights assigned and the duration or territorial extent; and 
  • It should specify the amount of royalty payable if required in any case.

It is also provided that, if the period is not mentioned in the agreement it will be considered as five years and if the territorial extent is not stipulated in the agreement, it will be considered as applicable to the whole of India. 

Disputes related to the assignment of copyright 

According to the Copyright Act, 1957, the appellant board where the receipt of the complaint by the assignor and after holding necessary inquiry finds that the assignee has failed to make the exercise of the rights assigned to him, and such failure is attributed to any act or omission of the assignor, may by suitable order, revoke such assignment. However, if the dispute arises with respect to the assignment of any copyright then that appellate board may also order the recovery of any royalty payable.

Operation of law in assignment

According to The Copyright Act, 1957, where under a bequest a person is entitled to the manuscript of any literary, dramatic or any other kind of work and such work has not been published before the death of the testator, unless the contrary is proved such person shall be treated as the owner for such work.

Infringement and remedies

Where a person intentionally or unintentionally infringes the rights of the copyright holder, the holder may be subject to the following remedies available under this Act.

Civil remedies

These remedies are given under Section 55 of the Copyright Act,1957 which are:

Interlocutory injunction

This is the most important remedy against the copyright infringement, it means a judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another is restrained from commencing or continuing such act, or is commanded to restore matters to the position in which they stood previous to the relation. Thus for granting the interlocutory injunction, the following three factors are considered as necessary:

  • Prima facie case, an assumption of the court that the plaintiff can succeed in the case and became eligible for relief.
  • Balance of convenience, in it the court will determine which parties suffer the greater harm, this determination can vary with the facts of each case.
  • Irreparable injury, it is difficult to decide and determine on a case by case basis. Some examples of it include- loss of goodwill or irrevocable damages to reputation, loss of market share.

Mareva injunction

This is a particular form of the interlocutory injunction which restrains the defendant from disposing of assets that may be required to satisfy the plaintiff’s claim or for removing them from the jurisdiction of the Court.

Anton Piller order 

This order is passed to take into possession the infringed documents, copies and other relevant material of the defendant, by the solicitor of the plaintiff. This order is named after the famous case of Anton Piller KG v/s Manufacturing Process Ltd, 1976. In this case, the plaintiff Antone Piller, the German manufacturer is successful in passing ex-parte awards of restraining the use of his copyrighted products against the defendant.

John Deo’s order

In this order, the Court has the power to injunct rather than those impeded in the suit, who may be found violating the rights in the field of copyright. Thus this order is issued against the unknown person, who has allegedly committed some wrong, but whose identities cannot entertain the plaintiff.

Pecuniary remedies

There are three types of pecuniary remedies provided:

  1. An account of profit, which lets the owner seek the sum of money made, equal to the profit made through unlawful conduct.
  2. Compensatory damages, which let the copyright owner seek the damages he suffered.
  3. Conversational damages, which are assessed to the value of the article.

Criminal remedies

For infringement of copyright, the criminal remedies provided under Section 63:

  • Imprisonment, not less than 6 months which may extend up to 3 years;
  • Fine may not be less than 50,000 which may extend up to 2,00,000;
  • Search and seizure of copyrighted goods; and
  • Delivery of copyrighted goods to the copyrighted owner. 

In the case of repeat offenders, minimum punishment terms of 1 year and fine of 1 lakh however, the highest punishment will be the same as the first time offender.

Exceptions

This act shall not constitute copyright infringement in cases of:

Fair Dealing

Fair dealing is the statutory limitation on the exclusive right of the copyright owner which permits reproduction or use of copyrighted work in a manner that otherwise would have constituted infringement. This law is given under Section 52 of the Copyright Act,1957 according to which the free uses can be made for any work except computer program for the purposes:

  • For private and personal use including research,
  • For criticism and review,
  • For reporting of current events or issues including lectures in public,
  • For broadcasting in cinematographic films or by posting photographs,
  • For reproduction and reporting of any judicial proceeding,
  • For reproduction, or publication of any kind of work prepared by the secretariat of a legislature,
  • For reproduction of any kind of work in a certified copy made or supplied accordance with any law,
  • For reading and recitation of any literary or dramatic work in the public domain,
  • For publication of any non-copyright matter bonafide intended for the use of educational institutes, and
  • For recording any sound by the owner of the right in the work. 

Conclusion

The copyright law is considered as an essential law of protection for a country because it enriches the 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.

References


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