The Copyright Act, 1957 (the “Act”), supported by the Copyright Rules, 1958 is the governing law for copyright protection in India. Substantial amendments were carried out to the Copyright Act, in May 2012.
India follows common law legal system thus relies on case laws to interpret and set precedents in law. As a result, there are a number of judicial decisions that contribute to the sources of copyright law in India.
India is a member of the Berne Conventions and Universal Copyright Convention. The Government of India has also passed the International Copyright Order, 1958. According to this Order, any work first published in any country – which is a member of any of the above conventions – is granted the same treatment as if it was first published in India.
Section 14 deal with Copyright:- It is an exclusive right exercised over a work produced by the intellectual labour of a person. The exclusive right to copyright exercised by a person includes his right to assign the copyright either wholly or partially in the favour of any other person .
As in Bharat law house, Messrs v. M/s Wadhwa Co. Ltd AIR 1988
It was observed that Copyright is the exclusive right to do and to authorise others to do and restrain others from doing certain acts in relation to a literary work.
Exclusive copyright in a work also includes the right to reproduce the work as held in the case of Penguin Books Ltd v. M/s India Book Distributors AIR 1985 , the Delhi High court observed that anything with respect to the intellectual; work in its most elementary form means exclusive right to multiply copies of a book.
Copyright Law provides for the civil as well criminal remedies against the infringement of copyright as discussed under chapter 8. Remedies against infringement of copyright section 54-62
(Civil) and 63-70 (Criminal)
As in Sulmanglam R. Jayalakshmi v. Meta Musical AIR 1991 The law of copyright has to protect a man’s copyright irrespective of his status as a family man or saint. Merely because a person has renounced the world, he cannot be compelled to renounce his copyright too.
Thus, if a saint writes certain lyrics in the praise of God, he has copyright over those lyrics under the copyright law
Thus, the Madras High Court observed that the primary function of copyright law is to protect the fruits of a man’s work, labour, skill or test from annexation by the other people.
Works in which copyright subsists:-
Section 2(y) of the Copyrights act, 1957, defines Work as follows:
It means any of the following works, namely:-
- A literary ,dramatic, musical or artistic work
- A cinematography film
- A sound recording
The Copyright Act, 1957 also defines different kinds of work which are included within the definition of work under sec 2(y) as follows
- Artistic work (Sec 2 (f) )
- Cinematographic film (2 (ff))
- Dramatic work (sec 2(h) |
- Literary work (Sec 2 (o)|
- Musical work (Sec 2 (p)|
- Sound recording )sec 2 (xx)|
ARTISTIC WORK means (Section 2(c) of the Copyright Act)
- any painting, any sculpture
- any drawing including maps, chart and a plan.
- An engraving a photograph whether or not such work possess artistic quality
- A work of architecture
- And any other work of craftsmanship
- Any work which has artistic quality
Painting.-Painting is an artistic work even if it possesses no beautiful quality. What is sufficient to entitle it for a copyright is that it must be original, i.e., the painting should be the creation of the painter and not a mere copy of another painting. A painting in order to be copyrighted must be on a surface; it is a tangible object and not only an idea. Only a painting on a tangible surface is entitled to copyright protection.
Photograph.-A photograph is an artistic work entitled to copyright. A photograph must be original, i.e., originally taken by the photographer to be entitled to protection and to be original, investment of some degree of skill and labour must be evident. A photograph of a public object, e.g., a public building when photographed in a particular manner by a particular individual is a subject matter of copyright. This does not prohibit another person from taking a photograph of the same object from same angle and claim an independent copyright. A photograph or a xerox copy of a photograph itself cannot be a subject matter of copyright since there is no involvement of original skill and labour in making such a copy.
- any work of visual recording on the medium produced through a process from which a moving image may be produced.
- It includes sound recording accompanied with the visual images.
- It shall also be construed as including any work produced by any process analogous to cinematography including video films.
- Includes any writing
- Computer programmes
- Tables or compilations including the computer database
Cinematograph Film.-Section 13(1) (b) incorporates cinematograph films as eligible for copyright protection. Cinematograph is a film which by rapid projection through an apparatus called projector produces the illusion of motion on a screen of many photographs taken successfully on a long film. The sound track associated with the film is also a part of the cinematograph film.
In Balwinder Singh v. Delhi Administration, and Tulsidas v. Vasantha Kumar, video films and television have been treated by cinematograph film within the meaning of Sec. 13(1) (b). As such they are also eligible for copyright protection.
It includes any writings, computer programmes, tables and compilations including the computer database.
The expression “literary work” has been defined in Section 2 (o) of the Act as including computer programmes, tables and compilations including computer database.
Some examples of literary works in which copyright subsists are given hereunder:
Dissertation.-The research thesis and dissertation prepared by scholar involves labour and skill, and thus entitles for copyright protection.
In Fateh Singh Mehta’s case, the Rajasthan High Court granted interim injunction against use of material by guide from the Ph.D. thesis of his student.
Question Papers.-The person who sets the question papers invests labour, skill and time on the preparation. He is the author of question paper and the copyright vests in him.
Encyclopedia & Dictionaries.-Preparation of a dictionary on any subject involves considerable amount of labour, skill and judgment, copyright will subsist in dictionary for arrangement sequence or idiom format which cannot be appropriated by another.
Head Notes of Law Report and Digest.-The head note is a systematic clear and concise presentation of principles of law laid down by court in a judgment. Preparation of head notes require art and skill of editor. They are, therefore, treated as original literary work entitled for copyright protection.
Translation.-Translation of literary work is itself a literary work and is entitled to copyright protection; reproduction of publication of translation without consent or license of the owner of the copyright in the original would amount to infringement.
Abridgment of literary work.-Abridgement is the reproduction of an original work in a much more precise and concise way. A genuine abridgement of a literary work is an original work and is a subject matter of copyright.
The above illustrations are merely illustrative and not exhaustive. Some more categories of works such as letters, Lectures,” code words, catalogues, story books have been granted copyright on the ground that the work has involved labour, skill and originality in preparation. Whereas preparation of syllabi, Report of judicial proceedings and single word have not been found eligible for copyright protection.
4. MUSICAL WORK:-
Section 2(p) defines ‘Musical Work’ as a work consisting of music and includes any graphical rotation of such work but does not include any words or any action, intended to be sung, spoken or performed with music.
Song.-There is no copyright in a song, the words of the song create a copyright in the author of the song and the music of the song is the copyright of the composer but the song itself has no copyright. In a case where a song is written and the music composed by the same man, he would own the copyright in the song.
Old songs with different music compositions (remix).-The remix songs which are very popular among the young generation is within the definition of adaptation of a musical work, such adaptation is not an infringement of the copyright of the original musical composition. Supreme Court in a significant judgment has held that version recording if done by a skillful and laborious rearrangement of different music with due permission of the original owner of songs, may claim protection.
In Section 13(1) (c) (as added by Amendment Act of 1994) the sound recording has also been made eligible for copyright protection. According to Section 2 (xx), sound recording means recording of sound from which such sound may be produced regardless of medium on which such recording is made or the method by which the sound is produced.
The right of sound recording is different from the subject matter recorded as they are subjects of independent copyrights. The author of the sound recording is the producer. Musical works and sound recordings embodying the music are considered separate subject-matter for copyright. The copyright in the recording of music is separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. Where the song has not been written down and the composer who is also the performer records the song two copyrights come into existence simultaneously, one for the music and one for the sound recording.
According to section 13 sub-sec (2) , the copyright subsists In the works specified under the definition of works under section 2(y) , if the following conditions are satisfied :-
- The work is first published in India
- If the work is published outside India ‚the author is at the date of such publication or in a case where the author was dead at that date, was at the time of his death, a citizen of India
- In the case of work of architecture, the work is located in India.
Sub -sec (2) of sec.13 does not apply to foreign works:-It does not apply to work to which the provisions of section 40 or section 41 apply Section 40 applies to foreign work and section 41 applies to the works of certain international organisations.
COMPUTER SOFTWARE AND PROGRAMMES
Article 10 of the TRIPs and Berne Convention of 1971 required copyright protection for computer programmes including software and issue relating to internet. As such, the Copyright Act was further amended in 1999 to include computer programmes as part of literary work entitled for protection under Section 13(I)(a). Section 2(a) says, “Literary work includes computer programmes, tables and compilations including computer database.
Computer programme means a set of instruction expressed in words, codes, and scheme 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.
Computer software includes many items like the programmed manuals and papers, punch cards and magnetic tapes or discs required for operation of computer. Programme manuals and papers and computer printouts may be considered as literary work. But the concept or idea of algorithms, frequently used in computer programming is not capable of copyright protection.
Punched cards which contain certain information in particular notation may be considered as literary work. Programmes devised for the working of computer is generally regarded as literary work. Magnetic tapes and discs including floppy disc which contain information recorded by means of electronic impulses may be considered as data bases and accordingly literary work by definition.
Conclusion: Under Indian law, registration is not a prerequisite for acquiring a copyright in a work. A copyright in a work is created when the work is created and given a material form, provided it is original.
However, the Act provides for a procedure of copyright registration. Such registration does not confer any special rights or privileges with respect to the registered copyrighted work. The Register of Copyright acts as prima facie evidence of the particulars entered therein. The documents purporting to be copies of the entries and extracts from the Register certified by the Registrar of Copyright are admissible in evidence in all courts without further proof of original. Thus, registration only raises a presumption that the person in the Register is the actual author, owner or right holder.
In infringement suits and criminal proceedings, when time is of essence to obtain urgent orders, registration is of tremendous help.
Copyright notice is not necessary under the Indian law to claim protection.