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1. Authorship and ownership of copyright in India

The creator owns the copyright, which is a type of intellectual property. The intent of
the legislature with respect to the Copyright Act, 1957 is, to assure designers,
authors, artists, composers, to encourage these creative individuals to create more
such work without fearing violation of their rights.
The Copyright Act, 1957 intends to safeguard the rights of the owner as well as the
author, whether the copyrightable work is published or unpublished. It is requisite
that in cases of unpublished works the author must be a citizen or have a domicile of
India at the time of the creation of such work.

Author:
An author is generally that person who writes or composes the work, either all by
himself or under the direction given by another person. Whenever a copyrightable
work is created, the author puts in his intellectual ability in order to create the work.
Hence, the Copyright Act, 1957, recognizing the efforts put by the authors, grants
authorship rights to the author of the creation. Since copyright is a universal right, it
doesn’t matter what the nationality of the author is in order to acquire authorship
rights. However, the Copyright Act, 1957 specifies certain requisites under Section
13 of the said Act which needs to be met in order to own copyright.
The Copyright Act, 1957 has set a general rule under the definition of the author of
various works laid down under Section 2(d), which states that the author is the first
owner of the Copyright. Section 2(d) of the Copyright Act, 1957. The section reads as
follows:
 In literary or dramatic works, the author of such work shall be the author.
 In musical works, the music composer shall be the author.
 In artistic works, the artist shall be the author.
 For a photograph, the person clicking such photograph shall be the author.
 In cinematographic films, the producer of such a film shall be the author.
 For a sound recording, the producer of such sound recording shall be the
author.
 When a literary, dramatic, artistic or musical work is a computer generated
then the person who causes such work to be created is the author.

Owner:
The provisions of acquiring copyright ownership are defined under Section 17 of the
Act. The right of ownership is available only if one qualifies the provision of this Act.
There is no other remedy in other laws prevailing in India to counter the violation of
copyright ownership. Generally, the creator or the author of the work is the owner
of the work and therefore, entitled to get the copyright for the work. Where the
author of the work is employed by another person, the work belongs to the
employer of the author. And where creation of the works is incidental, but not the
purpose, the work belongs to the authors. But in practice, out of the contractual
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agreement between the employer and the employee, the creation during the course
of employment would be belonging to the employer.
There may be a situation where a particular final work involves many copyrightable
sub−divisions such as film wherein many works such as music, lyrics, dramatic works
etc are copyrightable. The authors in the creation of such work are many such as:
a. In the case of a musical work, the composer.
b. In the case of a cinematograph film, the producer.
c. In the case of a sound recording, the producer.
d. In the case of a photograph, the photographer.
e. In the case of a computer generated work, the person who causes the work
to be created.
f. In the case of Script, the writer. Etc.

Illustration:
If ‘A’ asks ‘B’, a painter to paint his portrait for an agreed sum of money, then
although B has created the painting, he shall be the author and A who paid
consideration for the portrait shall become the first owner of the copyright arising
and accruing out of the portrait.
In many scenarios, the work may be commissioned or made through the course of
employment. In such a situation, the person who commissions the work or who is
the employer becomes the owner of the rights in that work. The statutory provision
that recognizes such a person as the owner is laid down under Section 17..

Thomas vs Manorama:
In this case, it was held that once the employment agreement is terminated, the
work created by a person after such termination shall be the first and true owner of
copyright arising out of such subsequent works and the former employer shall
possess no copyright on such subsequent copyrightable work.

Statutory exception under Section 17 of the Copyright Act, 1957: It is an exception

to the general rule of the author being the first owner of the copyright. This section
simply lays down that a person who pays a consideration for the work to be done
shall become the first owner of the copyright.

Section 17 (a) of Copyright Act, 1957 : literary, dramatic and artistic works : It says
that whenever such a work is made by an author during the course of his
employment or service to the owner of a newspaper, magazine, book etc under a
contract for publishing such work, then subject to an agreement in contrary, the
owner of such newspaper or magazine shall become the first owner of the
copyright.
Illustration:
If ‘A’ is a journalist employed at Mirror Now, a newspaper agency, then he shall only
enjoy authorship rights over that article. The first owner of the article shall be the
owner of Mirror Now.
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Section 17 (b) of Copyright Act, 1957 : photograph, painting, engraving,

cinematographic film : This clause talks about the cases when an artist is hired for
creating a painting, or when a photographer is hired for clicking images, or a
cinematographer is hired to shoot a cinematographic film then the person causing
such work to be created shall become the first owner of the copyright.
Illustration:
If ‘X’ who is an artist has been hired by ‘Y’ to create a portrait of his son, then ‘Y’ shall
be the first owner of the copyright arising and accruing from the portrait created by
‘X’ in lieu of consideration. However, ‘X’ shall retain authorship rights over the
portrait.

Section 17 (c), Copyright Act, 1957 : work made during the course of employment :
This section provides that, when a work is made by a person in the course of his
employment under a contract of service or traineeship, then the employer shall
become the first owner of all the work created during such employment unless
there’s an agreement in contrary between the parties.
Illustration:
If ‘M’ is a programmer employed at XYZ company, then all the copyright arising from
codes created by ‘M’ shall be owned by XYZ company as the first owner.

Section 17 (cc), Copyright Act, 1957 : lectures delivered in public on behalf of

another : As per this clause, if a person is delivering a speech on behalf of another
then, the person on behalf of whom the lecture is given in the public is the first
owner of such copyright. However, if a person gives a lecture in public by himself and
not representing anyone else then, he becomes the author and first owner of such
copyright.
Illustration:
If ‘A’ the spokesperson of ‘B’ a political leader delivers a speech in public, then
although ‘A’ is delivering the speech in public, ‘B’ shall be the first owner of the
copyright of such speech.

Section 17 (d) of Copyright Act, 1957 : work assigned by Government : Suppose if a

copyrightable work is created on being tendered by the government, then such
government shall be the first owner of the copyright arising and accruing from such
works unless there’s an agreement to the contrary between the parties.
Illustration:
If ‘A’ a sculptor, has been tendered to create a sculpture of national heroes to be
affixed on the road by the State Government then, the State government shall own
first ownership of copyright arising from such sculpture.

Section 17 (dd) of Copyright Act, 1957 : copyrightable work made on behalf of a

public undertaking: When a copyrightable work is created as per the direction of the
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public undertaking, then such public undertaking shall be the first owner of the
copyright.

Section 17 (dd) and Section 41 of Copyright Act, 1957 : copyrightable works created
for certain international organization : Suppose if an international organisation
assigns a person to create a copyrightable work for them then, that international
organization shall become the first owner of such copyrightable work.

Conclusion
The Copyright Act, 1957 has precisely demarcated authors, owners and their
rights. In the event that there is an ambiguity amongst the parties as to the
authorship or ownership of rights, one can simply check the contract they have
entered in and the terms and conditions therein. If the parties share a relationship
where section 17 applies and there’s no agreement between the parties which is in
contrast, then the authorship and ownership rights shall be granted to parties only as
per Section 17 of the Copyright Act, 1957. Therefore, there is no hard and fast rule
on who owns authorship and who has the ownership of copyright. It is completely
dependent on a case-to-case basis and the agreement existing between the parties.
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2. Registration of Copyright

Copyright is a right given by the law to the creators of original work in the areas of
literature, drama, music, art etc. A registered copyright legally protects an original
work and prevents its unauthorised usage. For this, one need to get one’s original
work registered with the Registrar of Copyrights. Between 2017 and 2018, there
were nearly 40000 copyright disputes and discrepancy examinations.

In India, copyright can be taken for original works that fall in the area of:
 Musical works,
 Literary works like books and manuscripts,
 Cinematography films,
 Fashion designs,
 Artistic works like paintings,
 Performances,
 Software and other computer programs and compilations, etc.

Illustration: - Suppose A made a painting after working day and night and putting in a
lot of sweat and effort into it. He then put it up on his website for others to see. After
a few months, A noticed that someone else had copied it and was making money off
it. Now, if he had copyright, he could use it as evidence in the court and prove that it
is his painting and the infringer must be punished.

Benefits of getting copyright registered for the work:

 Copyright registration creates a public record. It tells the world that your
work is protected by copyright and also enables a person who wants to
licence your work to find you.
 It enables you to file a lawsuit and take legal action against someone who
infringes your copyright, say by selling copies of your work without your
permission.
 It provides you with economic benefits by entitling you to use your work in
various ways like making copies, performing in public, broadcasting your
work etc, and availing appropriate reward for it. Thus, it provides you with
a reward for your creativity.
 It allows you to sell or pass the rights of your work.
 It allows you to get legal evidence of your ownership. So if someone
prevents you from using your work, you can just use your copyright to
prove that it’s your work and you have a right to use it.
 It allows you to change the form of your work. For example, it allows you
to make a sequel or revise or update the work.

The following people are entitled to submit an application to get a copyright:

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The author
The owner of exclusive rights
The copyright claimant
The authorized agent
Even a minor is also entitled to register a copyright.

Procedure for registering a copyright :

We can register our original work with the copyright registrar under Chapter X of the
Indian Copyright Act,1957 and Rule 70 of the Copyright Rules’ 2013.
The steps involved in the registration process are:
Step 1: File an Application
 The author of the work, copyright claimant, owner of an exclusive right for
the work or an authorized agent file an application either physically in the
copyrights office or through speed/registered post or through e-filing
facility available on the official website (copyright.gov.in).
 For registration of each work, a separate application must be filed with the
registrar along with the particulars of the work. Along with this, the
requisite fee must also be given, Different types of work have different
fees.
At the end of this step, the registrar will issue a dairy number to the applicant.
Step 2: Examination
In the next step, the examination of the copyright application takes place.
Once the dairy number is issued, there is a minimum 30 days waiting period. In this
time period, the copyright examiner reviews the application. This waiting period
exists so that objections can arise and be reviewed. Here the process gets divided
into two segments:
 In case no objections are raised, the examiner goes ahead to review and
scrutinize the application to find any discrepancy.
1. If there is no fault and all the essential documents and information is
provided along with the application, it is a case of zero discrepancies. In this
case, the applicant is allowed to go forward with the next step.
2. In case some discrepancies are found, a letter of discrepancy is sent to the
applicant. Based upon his reply, a hearing is conducted by the registrar. Once
the discrepancy is resolved, the applicant is allowed to move forward to the
next step.
 In case objections are raised by someone against the applicant, letters are sent
out to both parties and they are called to be heard by the registrar.
1. Upon hearing if the objection is rejected, the application goes ahead for
scrutiny and the above-mentioned discrepancy procedure is followed.
2. In case the objection is not clarified or discrepancy is not resolved, the
application is rejected and a rejection letter is sent to the applicant. For such
applicant, the copyright registration procedure ends here.
Step 3: Registration
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The final step in this process can be termed as registration. In this step, the registrar
might ask for more documents. Once completely satisfied with the copyright claim
made by the applicant, the Registrar of Copyrights would enter the details of the
copyright into the register of copyrights and issue a certificate of registration.
The process registration of copyright completes when the applicant is issued the
Extracts of the Register of Copyrights (ROC).

Conclusion
Copyright protects the creativity of people and becomes a source of motivation for
the artists, authors, etc. Registering work with the Registrar of Copyrights provides
the owner with the right to reproduce it, the right to adapt the work, right to
paternity and right to distribute the work.
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3. Copyright Infringement

Copyright infringement refers to the unauthorized use of someone’s copyrighted

work. Thus, it is the use of someone’s copyrighted work without permission thereby
infringing certain rights of the copyright holder, such as the right to reproduce,
distribute, display or perform the protected work.
Section 51 of the Copyright Act specifies when a copyright is infringed. According to
Section 51 of the Act, Copyright is deemed to be infringed if:
 A person without obtaining the permission of the copyright holder does any
act which only the copyright holder is authorised to do.
 A person permits the place to be used for communication, selling, distribution
or exhibition of an infringing work unless he was not aware or has no reason to
believe that such permission will result in the violation of copyright.
 A person imports infringing copies of a work
 A person without obtaining the authority from the copyright holder
reproduces his work in any form.

The following are some of the commonly known acts involving infringement of
copyright:
A. Making infringing copies for sale or hire or selling or letting them for hire;
B. Permitting any place for the performance of works in public where such
performance constitutes infringement of copyright;
C. Distributing infringing copies for the purpose of trade or to such an extent so
as to affect prejudicially the interest of the owner of copyright;
D. Public exhibition of infringing copies by way of trade; and Importation of
infringing copies into India

Remedies available in case of infringement

The existence of a right is meaningless unless an effective remedy is provided for
redressing its violation. In case of infringement in India, a copyright owner is entitled
to certain remedies under the Copyright Act, 1957.
There are three types of remedies available for infringement under the Act:
A. Civil Remedies,
B. Criminal Remedies, and
C. Administrative Remedies.

A. Civil Remedies for Copyright Infringement

The civil remedies for copyright infringement are covered under Section 55 of the
Copyright Act of 1957. The different civil remedies available are:
1) Interlocutory Injunctions
In most case the application filled is for interlocutory relief and the matter rarely
goes beyond the interlocutory stage. There are three requirements for there to be a
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grant of interlocutory injunction – Firstly, a prima facie case. Secondly, there needs
to be a balance of convenience. Finally, there needs to be an irreparable injury.
2) Pecuniary Remedies
Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of
the Copyright Act of 1957. First, an account of profits which lets the owner seek the
sum of money made equal to the profit made through unlawful conduct. Second,
compensatory damages which let the copyright owner seek the damages he suffered
due to the infringement. Third, conversion damages which are assessed according to
the value of the article.
3) Anton Pillar Orders
The Anton pillar order gets its name from the holding in Anton Pillar AG V.
Manufacturing Processes. The following elements are present in an Anton Pillar
Order – First, an injunction restraining the defendant from destroying or infringing
goods. Second, an order permitting the plaintiff’s lawyer to search the defendant’s
premises and take goods in their safe custody. Third, an order that the defendant be
directed to disclose the names and addresses of suppliers and consumers.
4) Mareva Injunction
The Mareva injunction comes into play when the court believes that the defendant is
trying to delay or obstruct the execution of any decree being passed against him. The
court has the power to direct him to place whole or any part of his property under
the court’s disposal as may be sufficient to satisfy the decree. This is provided in
Order XXXVIII, Rule 5 of The Civil Procedure Code, 1908.
5) Norwich Pharmacal Order
The Norwich Pharmacal Order is usually passed when information needs to be
discovered from a third party.

B. CRIMINAL REMEDIES:

he Copyright Act 1957 has provided for the enforcement of copyright through a
series of penal provisions under Chapter 13 of the act. The following are the principal
penal provisions under the act:

1. Under section 63, where any person knowingly infringes or abets infringement
of the copyright in a work and any other right as covered by the Copyright Act,
1957 (broadcast reproduction rights, performers’ rights, moral rights, etc),
such person may be punished with imprisonment of a minimum term of six
months and a maximum term of three years, and a fine of between 50,000
and 200,000 rupees.
2. Section 65A penalises circumvention of effective technological measures that
may be applied to copies of a work with the purpose of protecting any of the
rights conferred under the act (ie, copyright and performance rights). The
punishment under this provision is imprisonment, which may extend to two
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years and payment of a fine. Section 65A was inserted by the Copyright
(Amendment) Act 2012.
3. Section 65B makes unauthorised removal or alteration of ‘rights management
information’ punishable with imprisonment of up to two years and payment
of a fine. The provision makes the unauthorised distribution, broadcast or
communication to the public of copies of the work punishable in the same
manner if the person is aware that electronic rights management information
in the copy has been removed or altered. Section 65B was inserted by the
Copyright (Amendment) Act 2012.
4. Section 63A provides for an enhanced penalty on second or subsequent
convictions under section 63 (see point (1)).
5. Other provisions in Chapter 13 provide penalties for offences such as using
infringing copies of a computer program, making or possessing plates for the
purpose of making infringing copies of works and making false entries in the
Register of Copyrights.

C. ADMINSTRATIVE REMEDIES:
Under administrative remedies, one may file for moving the Registrar to ban the
import of infringing copies and delivery of the confiscated infringing copies to the
owner. To prevent the importation of work which is sometime also known as border
control measures. This provision has been completely revamped in 2013. The
procedure prescribed in the section can be summarized in the following steps. First
the owner of the rights need to submit a written notice to the commissioner of the
customs or any other authorized officer under central excise department. Second
step- order by the Commissioner. The Commissioner may pass an order after seeing
the evidence treating the infringer with punishment. Third step custom officers if can
detain the goods attained by the custom officers and intimation will be sent to both
the infringer and the owner of the copyright waiting for 48 hours of attention. The
final step is the order from competent court providing instructions on the disposal of
such goods within 14 days from the date of the detention.

CONCLUSION
An ideal regime for copyright protection would balance the rights of all stakeholders.
On one hand, India faces major economic losses due to rampant piracy, especially
online; on the other hand, the peculiar socio-economic conditions of the country
make it imperative to overlook IPRs to an extent for the greater common good. In
these circumstances, perhaps the stress should be on effective implementation of
the existing remedies rather than introducing new remedies over and above the
existing provisions, so that the genuine exceptions to IPRs are not whittled down.
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4. Indian Perspective of The Performers & Broadcasters Rights Provisions

The Copyright Act of 1957 which has been amended several times since it’s
formation as per the needs of the market. The rights of the performers were not
recognised by the legislature for about thirty-seven years. An amendment act was
bought in force in the year 1994 to protect the livelihood of the performers which
was in danger due to lack of recognition of their work by the laws and another
reason being, advancement in technology. This amendment of 1994 brought the
rights of the performers in force under Section 38 of The Copyright Act. Later on, in
2012, further another amendment was made to increase the rights provided to the
performers, being exclusive and moral rights under the Sections 38-A & 38-B,
respectively, which have been discussed in detail in the article later.

Performance & Performer

Performers are the artist who display their art before the audience with their own
skill set and knowledge. “The term “performer” includes an actor, singer, musician,
dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or
any other person who makes a performance.”
A proviso was added in the Amendment Act, 2012 to the definition of the performer
to include the performers who play casual and incidental performance, known as
“extras” so as to protect their moral rights.

The term performance means, the work performed by any performer covered under
Section 2(qq) of the Act. The term earlier included literary and artistic work only but
later on it’s scope was broadened to include dramatic and musical work,
cinematograph films and the sound recordings.

”Performance” in relation to performer’s right means any visual or acoustic

presentation made live by one or more performers.”

Rights of The Performer’s under the Copyright Act

Where any performer appears or engages in any performance, he shall have a special
right to be known as the “performer’s right” in relation to such performance.

Following are the rights currently available to the performers, in India, under The
Copyright Act :

1. Exclusive Rights of The Performer –

The amendment act has introduced affirmative performers right by amending
Section 38 which granted only negative rights by prohibiting acts in sub-section (3)
and (4) which have now been omitted and a new section 38-A has been inserted
which provides the performer’s rights as the exclusive rights to do or authorize doing
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any of the acts in respect of the performance, without prejudice to the rights
conferred on authors. Exclusive rights of the performers include the following rights :

a. To Make A Sound Recording or A Visual Recording of The Performance –

The law permits the performer to make a sound recording, visual recording, record
his live performance as his exclusive right to his work. The record will be granted
the copyright under the law only when it does not includes any part which amounts
to infringement of any other work and has been recorded lawfully, as per the
provisions of the act.
b. Reproduction of The Sound Recording or Visual Recording of The Performance
–
The Copyright Act not only provides the performer with the right of recording his
own performance but also provides him the opportunity to reproduce his own
performance. The law states, reproduction of it in any material form including the
storing of it in any medium by electronic or any other means.
Other than reproduction his own work, performer can also issue copies of his work
to the general public, keeping in mind that the copies that are being issued are not
the ones that are already in circulation in the public.7
Moreover, the performer also owes the right to sell his work or can even give either
of his entire work or copy of of his recording on commercial rent or can even offer
the same for sale.
c. Right to Broadcast the Performance –
Performer has been given the sole right to decide if he wants to communicate his
performance to the general public.
Performer can also choose to stop the broadcasting of his work, if the work been
broadcasted is different from the work for which his consent has been taken to
broadcast. Moreover, if the broadcast is without the consent of the performer, the
broadcast will be considered illegal under the act.
d. Right to Royalty –
Major amendment that has been brought to the rights of the performer through
The Amendment Act of 2012 was the idea of introducing the concept of royalties
for the performer so as to protect his livelihood and provide him the benefits for his
work. As per the act, the performer shall be entitled for royalties, in case he takes
the decision of giving his performance or work for commercial use in any form.

2. Moral Rights of The Performer –

Another major amendment made in the performer’s right by The Amendment Act of
2012 was brought by the way of Section 38B, which replaced the earlier provisions
under the section 38(3) & 38(4). Section 38B states, even after the assignment of his
right, may it be wholly or partially, the performer still has the rights to the following
under the Act :
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(a) Right to claim to be identified as the performer of his performance unless

where the omission has been dictated by the manner of the use of the
performance
(b) Right to restrain or claim damage in respect of any distortion, mutilation or
other modification of his performance that would be prejudicial to his
reputation.

3. Right to The Performance–

The act not only provides with the copyright and protection of performer’s right
during the life of the performance but also for a long time period after the
performance. The performer’s right shall subsist until ‘fifty years’ from the beginning
of the calendar year next following the year in which the performance is made.

Broadcast & Broadcasting Organization :

Literal meaning of the term “broadcast” is the transmission or distribution of
programme or information or audio or video content to a dispersed audience via
radio or television.
As per the section 2(dd) of The Copyright Act, “broadcast” means “communication to
the public—
(i) by any means of wireless diffusion, whether in any one or more of the forms of
signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast.”
Broadcasting organisation, such as radio or television are also popularly known as
electronic media, play a vital role in the society. They are powerful media for
entertainment, dissemination of information, knowledge, art and culture. Such
broadcasting organisation have also been provided with the rights to protect their
interest after the Amendment of 2012 in The Copyrights Act, other than the
performers.

Rights of The Broadcasting Organization

Just as performer’s rights have been protected by the legislature undee the Section
38 of the act, similarly, broadcaster’s rights have also been protected by the Act
under section 37.
Every broadcasting organisation shall have a special right to be known as “broadcast
reproduction right” in respect of its broadcasts.

Right to The Broadcasting for A Term –

Just like performer’s right has been granted for an entire term, similarly,
broadcaster’s rights have also been provided for an entire term. The broadcast
reproduction right shall subsist until ‘twenty-five years’ from the beginning of the
calendar year next following the year in which the broadcast is made. 15
The Amendment Act of 2012 might have introduced the affirmative rights for the
performer by omitting the provisions in which negative rights were given but the
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same is not the case with the rights of the broadcasting organisation. Rights
protecting the broadcaster are given in the form of the infringements that would be
considered during the continuance of the broadcast reproduction right, with regards
to the broadcast.
Any person who has not obtained the licence from the owner of the work and does
any of the following acts, in regards to the broadcast or any substantial part of it will
deemed to have infringed broadcast reproduction right of the broadcaster : 16
(a) re-broadcast the broadcast
(b) causes the broadcast to be heard or seen by the public on payment of any
charges
(c) makes any sound recording or visual recording of the broadcast.
(d) makes any reproduction of such sound recording or visual recording where such
initial recording was done without licence or, where it was licensed, for any purpose
not envisaged by such licence
(e) sells or gives on commercial rental or offer for sale or for such rental, any such
sound recording or visual recording referred to in clause (c) or clause (d), subject to
the provision of Section 39.
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5. Copyright: Copyright Board

An Introduction
Copyright is a kind of intellectual property, the importance of which has increased
enormously in recent times due to the rapid technological development.
Copyright means the exclusive rights to do or authorize others to do certain acts in
relation to:
(1) Original, literary, dramatic, musical and artistic works,
(2) Cinematograph film, and
(3) Sound recordings

Basically, a copyright is the right to copy or reproduce the work in which the
copyright subsists. The exclusive right for doing the respective acts extends not only
to the whole of the work but to any substantial part thereof or to any translation or
adaptation thereof, where applicable. The term period of a copyright is the life of the
author of the work plus sixty years with certain exceptions.

Copyright is a creation of the statute. The law of copyright in India is contained in

the Copyright Act, 1957 as amended subsequently from time to time. This Act has
been amended five times since then, i.e., in 1983, 1984, 1992, 1994, 1999 and 2012.
The Copyright (Amendment) Act, 2012 is the most substantial. The Indian copyright
legislation provides for three important authorities and institutions for registration of
copyright, effective protection of copyright and also for better enforcement of the
copyright of owners and others. They are:
(1) Copyright office
(2) Copyright Board
(3) Copyright Societies

Copyright Board
The Copyright Board, a quasi-judicial body, was constituted in September 1958. The
jurisdiction of the Copyright Board extends to the whole of India. The copyright
board is a body constituted by the central govt. to discharge certain judicial function
under the Act. The Board is entrusted with the task of adjudication of disputes
pertaining to copyright registration, assignment of copyright, grant of Licenses in
respect of works withheld from public, unpublished Indian works, production and
publication of translations and works for certain specified purposes. It also hears
cases in other miscellaneous matters instituted before it under the Copyright Act,
1957
It consists of a chairman and not more than fourteen other members. The Chairman
and the members shall hold their office for five years. They may be reappointed on
the expiry of the tenure. The chairman of the copyright board must be a person who
is or has been judge of a High Court or is qualified for appointment as a judge of a
High Court. There is no qualification mentioned about the members of the Board.
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The Registrar of Copyright also plays a very important role. The Registrar of the
copyright board will perform all secretarial functions of the copyright board. The
Registrar of the Copyright is the authority under Section 9 of the Act who is the
officer of the Copyright Office. The Registrar of Copyright has powers of the civil
court. And every order made by the registrar of payment of money is deemed as a
decree of a civil court and is executed as decree of such court.
Powers of Copyright Board
The copyright board has been constituted to perform judicial functions.
Therefore, the copyright board has been accredited with the powers of civil court for
the purpose of Sec. 345 & 346 of the Code of Criminal Procedure, 1973. All
proceedings of the court are judicial proceedings within the meaning of Sec. 193 &
228 of Indian Penal Code, 1860. In exercise of the civil court power, the copyright
board may issue summons and enforce the attendance of any person and may
examine him on oath, requiring the discovery and production of the document,
receiving evidence on affidavit issuing commission for the examination of witness
and documents and requisitioning public record or copy thereof from any court.
The Registrar of Copyright and the Copyright Board have the powers of a civil court in
respect of the following matters:
(a) Summoning & enforcing the attendance of any person and examining him on
oath (this jurisdiction extends to the whole of India);
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavit;
(d) Issuing commission for the examination of witnesses and document;
(e) Requisitioning any public record or copy thereof from any court or office;
(f) Any other matter which may be prescribed.
Functions of Copyright Board
The first and foremost function of the copyright board is to look after whether the
provisions of the Act are followed without any violation or infringement and to
adjudicate certain cases pertaining to copyrights.
Other than this, the copyright board has been provided direct jurisdiction in relation
to matters:
(1) To decide the issue of publication and its date in order to determine the term of
copyright
(2) To decide the term of copyright which shorter in any other country than that
provided in respect of that work under the Act (The decision of the Copyright board
on the above question will be final)
(3) To settle disputes related to assignment of copyright
(4) To grant compulsory licenses for Indian work
(5) To grant compulsory licenses to publish the unpublished work
(6) To grant compulsory licenses to produce and publish translation of literary and
dramatic works
(7) To grant compulsory licenses to reproduce and publish certain categories of
literary, scientific or artistic works for certain purposes
 17

(8) To rectify the Register of copyrights on the application of registrar of copyrights

or any aggrieved persons
Other than this, another important function of Copyright Board is carried out by the
Registrar of Copyright Board. The Registrar maintains a Register of Copyrights
containing the names or titles of works and the names and addresses of authors,
publishers and owners of copyright and other particulars as may be prescribed.
The Register of Copyright will be kept in six parts as follows:
Part I – Literary works other than computer programs, tables and compilations
including computer databases and dramatic works.
Part II – Musical works
Part III – Artistic works
Part IV – Cinematograph films
Part V – Sound recordings
Part VI – Computer programs, tables and compilations including computer databases.

Conclusion

Overall, we can conclude that the copyright society of India and in general is one of
the most important organizations that helps in protecting the rights and interests of
the owners and authors of the respective works. With the guidance of the
government of India, the copyright society is vested with important powers that are
made by keeping in mind the interests and benefits of the owners and authors. They
can issue the license, collect fees for the same, consult the owner or author for
approval of the collection of the fees, and most importantly, create schemes for
remuneration of the copyright owners. Finally, include the authors and ensure that
there is an equal number of owners and authors as per the amendment of 2012.
 18

6. Idea-Expression Dichotomy Under Copyright Law

The Indian Copyright Act, by virtue of Section 13, grants protection to the following
works:
1. Original literary, dramatic, musical and artistic works.
2. Cinematographic films.
3. Sound recording

It is a traditional copyright doctrine that copyright protects only expressions and not
the Ideas behind such expressions. This Idea/Expression Dichotomy is considered as
the central axiom by the courts while determining what is protected in infringement
cases.
The essence of copyright lies in this very distinction between expressions and
unprotected ideas. Many people have raised their contentions to the
idea/expression dichotomy, but none of them have tried understanding and
identifying the root of this problem. An idea can in no way exist separate from an
expression. Either there is a manifestation, or the idea cannot exist. The main reason
behind this is that one can only differentiate the form when the idea has been
substituted for some form of writing or other kinds of expression that is when the
idea of the writer has been equated to such writing/ expression by him. Thus,
drawing a difference between idea and expression cannot decide what is protectable
under the Law of Copyrights. Rather, the distinction is to be made between the
expressions that are protectable and those that are not, under the Copyrights Act,
1976. IN SIMPLE TERMS, NEITHER CAN “EXPRESSIONLESS IDEA” EXIST, NOR CAN
“IDEALESS EXPRESSION”.

Ideas and Expressions

Ideas are discussed as human mental conceptions or representations. They are not
eternal Platonic forms that exist apart from such human conceptions and are waiting
to be thought. Thinking is generally viewed as concept manipulation and thus,
necessarily involves expressions. Thus, a contrast between ideas ad expressions has
never been an issue.
The form/ expression does not add something to an idea that is already existing,
independently of all the expressions. Also, the idea of writing cannot exist apart
from some form/ expression. Thus, ideas are incepted to be expressions themselves,
even in their simplest form, they will always be in some of expression. Thus the fact
that ‘ideas’ are human conceptions concludes that the ideas can’t exist apart from
the only way of conceptualizing that is “Expression”.

The main difficulty with this dichotomy is that the courts and commentators never
define clearly what they mean by ‘ideas’ and ‘expressions’ while relating to them. By
only committing to the idea/expression dichotomy, one would just hypothesize the
concept.
 19

Scènes à Faire: Some of the courts recognize that some of the ideas can be
expressed the most efficiently only when certain elements or background is used.
This doctrine is referred to as ‘Scènes à Faire’ in French. Thus, in this case, even the
expressions are not protected, except in the case of exact copying. For example, the
scene of marching of soldiers cannot be preserved, as it would be common in many
war related movies.
The Merger Doctrine: Where there are only some particular ways in which an idea
can be expressed, and there is just a little difference between the idea and
expression, then the idea and expression are said to be merged. This doctrine is
referred to as the ‘Merger Doctrine’. When this happens, the limited number of
ways to express the idea can9t be protected. The reason behind this is that if these
ways are protected, then it would be leading to the protection of an idea, which is
not a provision of the Copyright Law. This doctrine means that if things are similar in
any way, or even if they are identical, they might not be infringing Copyright.

Case Laws
In 1879, the Supreme Court chose in Baker v. Selden {FN43: 101 U.S. 99 (1879)} that
the copyright of a book that portrayed a particular accounting procedure did not
ensure the structures necessary to utilize the system.
In 1954, the Supreme Court reiterated the principle that copyright shields
expression, but not functions. In the case Mazer v. Stein, the Court addressed the
scope of protection of copyright for a sculpture that shaped the base of a lamp. It
was found that copyright shielded the artistic traits of the sculpture, but not the
functional traits linked with being the base of a lamp.
Unlike a patent, a copyright provides no particular right to the art revealed;
protection is given only to the expression of an idea and not the idea itself. In the
case of Baker v. Selden, the Court said that a copyrighted book on a unique system
of accounting was not infringed by a comparable book using a similar strategy which
accomplished similar outcomes where the suspected infringer made an unlike
arrangement of the columns and used different headings. The difference is
exemplified in the case Fred Fisher, lnc. v. Dillingham, once the court speaks about
the two men, each an expert, individually making maps of the same region. Though
the maps are alike, each may attain the exclusive right for making copies of his own
particular map, and yet none of them will infringe the other9s copyright.

Conclusion
Cases in the present have been decided on the basis of the above cases. However,
one fails to realize that this undermines the effort invested by the author or the
creator. For example, consider the photographs of the bottle. It is obvious that the
no two photographs of the bottle clicked by two different photographers can be the
same. Even the variation in a slight angle can cause a huge difference. In such cases,
the idea-expression dichotomy proffers no solution and is therefore, at times,
inadequate.
 20

7. What are Neighboring Rights?

With the advancement in media and technology, the protection of the rights of those
who authored literary, musical, dramatic, and artistic works grew to those who
helped in the communication and publicizing of these works to the public. This
brought in a new concept of Neighbouring Rights. These rights, also referred to as
Related or Secondary Rights, grew as a concept parallel to Copyright. The main
purpose behind it was to protect the rights of those intellectual creators who put in
efforts to convey the message of the author to the public.
The author himself is not always capable of disseminating the message of his art to
the public at large. For instance, poetry by Gulzar might not be enjoyed by the public,
if it is not sung by a famous singer like Arjit Singh. It may also not garner as much
recognition if it is not telecasted by a music channel, say B4U Music. These channels
of communication, therefore, deserve their fair share of protection under the law.
Not only do they communicate the work, but they also bring in reach and add in their
own set of skills, be it their artistic skills, or their marketing skills.
Neighbouring Rights protect the rights of these channels of communication. These
rights were first recognized under the Rome Convention of 1961. The convention
provided them with a protection tenure of 20 years, which could be extended in the
national laws to up to 50 years. “They divide these rights into three categories:

 Rights of Performers
 Rights of Producers of Phonograms
 Rights of Broadcasting Organizations”
Rights of Performers dealt with the rights of actors, singers, musicians, dancers, etc.,
and those who performed literary or artistic works. Rights of Phonogram
Producers dealt with the rights of those who produced phonograms. Phonograms
are the aural fixation of a sound on a storage device. Rights of Broadcasting
Organizations dealt with the rights of those organizations that help in the
transmission and re-transmission of audio and video work.

Neighbouring Rights in India

The Indian Act of Copyright did not originally protect Neighbouring Rights under it. It
was only after the amendment of 1994 when specific sections were inserted into the
Act for the same in Chapter VIII. Section 37 and 38 were inserted to protect the rights
of Broadcasting Organizations and Performer’s rights, respectively. Producers of
Phonograms were on the other hand protected by the insertion of ‘sound recording’
under Section 13 and their rights under Section 14. Section 39 was also inserted,
which dealt with all those acts which would not amount to an infringement on the
rights of Performers and Broadcasting Organizations.
 21

Further on, through the amendment of 2012, there was an insertion of exclusive and
moral rights of performers through Section 38A and 38B. Section 39A was also
inserted, which dealt with certain provisions that would apply in the case of
Performers rights and Broadcaster’s reproduction rights.

Rights of Phonogram Producers

The rights of the producers of phonograms were added with the other rights of
copyright that are in Sections 13 and 14. Section 13 (1) (c) talks about the right of
copyright that subsists for sound recordings while Section 14 (e) talks about the
exclusive rights that are available to sound recordings when it comes to copyright.

Rights of Broadcasting Organizations

The term ‘broadcast’ is defined under Section 2 (dd) of the Act. It defines it as
“communication to the public-
(i) by any means of wireless diffusion, whether in any one or more of the forms of
signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast.”
Section 39 however also allows for the use of the broadcast without causing
infringement in certain cases. This includes when the use of the broadcast is made
for the sole purpose of use by a person or research and teaching purpose, when the
performance is used for the reporting of an event or any other bonafide activity, or if
any act does not constitute as infringement under Section 52 of the act.

Rights of Performing Artists

The word ‘performer’ is defined in Section 2 (qq) of the Act. It states that “performer
includes an actor, singer, musician, dancer, acrobat, juggler, conjuror, snake
charmer, a person delivering a lecture or any other person who makes
performance.” Section 2 (q) defines performance about the performer's right as “any
visual or acoustic presentation made live by one or more performers”[ii]. The
amendment of 2012 however added that when in a cinematographic film, if a
person’s performance is informal or incidental, and that in the usual industry
practices, is not credited anywhere including the credits of the film, the performance
shall not be treated as that of a performer except for sub-clause (b) of Section
38B”[iii].
The act provides an exclusive right to every performer over his performance. This
gives them the right to allow or bar the recording or broadcasting of their
performance to the public in an audio or video form. These rights were the result of
the development of media and its various channels of communication as modern
invention allowed for the permanent storage of the performances of these artists.
Their performances could reach the masses in a flick of a finger without their
consent. The new law provides them a decent amount of protection.
Just like copyright, protection of the rights of a performer initiates as the
performance takes place. There is no requirement for registration. The rights allow
the performers to exclude any party from recording, communicating, issuing copies
 22

of, selling, or giving to commercial rental their performance. It also prohibits the
broadcasting or communication of their performances to the public unless the
performance has already been broadcasted. The act provides performers with the
economic rights of 50 years.
Section 39 however does add its special circumstance when the rights of a performer
are not infringed. These include when the recording of the performance is made for
the sole use of a person or research and teaching purposes. The use is consistent
with fair dealing in the reporting of current events or for Bonafide review, teaching,
or research. Finally, if any act does not constitute infringement under Section 52 of
the act, it shall not be considered as an act of infringement for the rights of the
performer.

Moral Rights of Performers

Moral rights are inalienable rights that are bestowed upon the creators of any work
of intellectual labour. Just like the authors of a work protected under copyright, the
performers of performance have their moral rights as well. These are provided under
Section 38B of the Act. There are two moral rights available to the performers.
“These are:
· The right to be identified as the artist in their performance unless where the
exclusion is made through the Right of Paternity of another.
· The right to Restrain or claim damages in respect of any distortion, mutilation or
other modification to their performance that can be damaging to their reputation”

Conclusion
Neighbouring Rights are a relatively less talked about a bundle of rights that are
equally important in the field of intellectual property rights. With the recognition of
these rights with WIPO, there has been a slower yet strong adaption of these rights
into the national legislations. They are of equal importance as they protect the rights
of performing artists along with the producers and broadcasters who are gradually
growing bigger as an industry. Though there is a need for better research on the
topic, the Indian Legislation has put strong regulations for the same which are
commendable.
 23

8. Discuss the Nature and Object of Copyright Law. Write a brief note on the
various features of copyright law in India.

The objective of copyright is to promote the public good by encouraging and

fostering cultural and scientific activity. Copyright protects cultural works, the
creative expression of thoughts and feelings. These works are in a variety of forms,
art works, music, novels and poetry. They are the expression of a culture – its
heritage, which is built on by each generation adding their own perspective to the
existing culture, which will enrich the lives of generations to come.
To demonstrate its importance to culture and society, copyright is recognised as one
of the Human Rights in the Universal Declaration of Human Rights. Consequently,
the value and benefits associated with copyright and the systems which support it
cannot be underestimated.

Three Pillars of the Copyright System

There are three pillars of an effective copyright system – legislation, enforcement
and management.
(a) Legislation: International Copyright Conventions Consistency in
copyright law between different countries is maintained through international
treaties. The minimum standards of copyright protection are contained in the
Berne Convention, which was developed in 1886. There are currently 164 national
signatories to the Berne Convention.
The Berne Convention standards are incorporated into later international treaties,
such as the 1994 World Trade Organisation9s Trade Related Aspects of
Intellectual Property Rights Agreement (TRIPS), and the World Intellectual
Property Organisation’s Copyright and Performers and Phonograms Treaties of
1996. National Legislation: It is the role of national legislators to translate the
terms of the international treaties into national law and adapt the terms of the
treaties to the particular legal system operating in each country.
(b) Enforcement of Copyright: It is the ability of copyright owners to
enforce their rights, through the legal system and also through administrative
systems, such as customs. Enforcement is supported by raising public awareness
of copyright issues, and by more specific training of judicial and policing staff in
relation to copyright.

(c) Management of Copyright: The last important element of a functioning

copyright system, is the management of rights. Copyright can be managed
individually or collectively.
In relation to individual management of rights, other legal aspects, such as laws
relating to contracts, and the judicial system need to be fully functional. A key
element of the management of copyright is education and communication.
 24

COPYRIGHT ACT
In real sense of the term the first 'independent' statute of India was the Copyright
Act of 1957 which kick started the modem copyright law in conformity with the
Berne and the Universal Copyright Convention. The Act is both a substantive as
well as procedural in nature and provided for legal remedies to enforce the right.
Thus, it can be drawn that any country wishing to stimulate or inspire its own
authors, composers, or artists, and thus augment its cultural heritage, must provide
for effective copyright protection.
On the first hand, it gives the definition of words to be understood in copyright
parlance such as an 'author' would not be merely an author of a literary piece for
the purposes of copyright but an author, as understood in copyright parlance is one
who is the creator of the work. Similarly other terms such as 'reproduction', 'artistic
work', 'work', 'reprography' etc. has been ascertained a definite connotation and
scope, to be understood within the parameters of copyright coinage. It further
defines the various categories of copyrighted works and spells out the. exclusive
rights which constitute copyright in such different categories of copyrighted works,
including term of copyright, such as literary, dramatic work, artistic work, sound
recording etc.
India is a member of the Berne Convention and the United Copyright Convention.

CHARACTERISTICS OF COPYRIGHT
Copyright is not a single right rather it is collection of rights. Following are the
characteristic features of copy right.
1. Creation of a statute: Copyright is formation of a particular statute under the
present law. This law is applicable only on work which are as per the provision
of this act i.e.any work can not qualify for copyright.
2. Some Form of intellectual property: A copyright is a form of intellectual
property because it protects the product of a human mind.
3. Monopoly right: Copyright is monopolistic in nature. It restricts others from
using the rights of a copyright owner.
4. Negative right: Copyright is a negative right it stops others from copying the
work protected under copyright.
5. Object of copyright: The basic aim of copyright law is to motivate authors,
composers and artists to create original works by giving them exclusive right
for a specified period of time.
6. Multiple rights: Copyright is not a single right. It consists of a collection of
different rights in the same work. For example, a literary work copyright
includes the right issuing copies of work, translation of work etc.
7. Neighbouring rights: Copyright Act explains broadcasters9 and performers9
rights, they are known as neighbouring rights. They were created for
performing artists, producers of phonogrammes, and people involved in
broadcasting (radio or television).
 25

9. Subject Matter of Copyright

Introduction
Copyright comes under Intellectual Property Rights; Intellectual property is classified
into various types of assets, like trademarks, patents, industrial designs and
geographical indications. Copyright is a right given on Intellectual creations. It is an
exclusive right given by law to print, publish and sell copies of original work for a
certain period. The objective of copyright is to safeguard the author or the creator
from unauthorized reproduction of his creation. The domain of copyright is literary
and artistic works, like writings, musicals and works of fine arts, such as paintings and
sculptures, as well as technology-based works such as computer programs and
electronic database.
The Copyright Act, 1957 completely replicates the Berne Convention for Protection
of Literary and Artistic Works, 1886 and the Universal Copyrights Convention after
the amendments in 1999, 2002 and 2012 and India is a party to both the
conventions. India has signed the Geneva Convention for the Protection of Rights of
Producers of Phonograms and is an active member of the World Intellectual Property
Organization (WIPO) and United Nations Educational, Scientific and Cultural
Organization (UNESCO).
The copyright law has originated in 1557 in England. The world’s first copyright law
was the Statute of Anne, enacted in England in 1710. This Act laid down the concept
of the author of a work and the importance of copyright of such work. The Act laid
down various rules for the protection of the copyright. The Statute of Anne was
gradually adopted in various other countries, such as the Copyright Act of 1790 in the
United States. There was no uniform legislation for copyright globally until 19 th
century. Finally, in 1886, the Berne Convention was introduced to provide mutual
recognition of copyright between nation states, and to promote the development of
international standards for copyright protection. The United States adopted the
treaty in 1988, and the Convention now is adopted by almost all major countries.
This Berne Convention remains in force to this day and continues to present the basis
for copyright law globally.

Subject matter of Copyright

All subject matters protected by copyright are called protected works. Thus,
according to Section 13 of the Copyright Act 1957, it may be subjected for the
following works: Original Musical work, Original Literary Work, Original Dramatic
work, Cinematography films, Original Artistic work and Sound recordings.

Original Musical work –

Musical work was defined as “a work consisting of music and includes any graphical
notation of such work but does not include any work or any action intended to be
sung, spoken or performed with the music”. In 2012 Amendment, there was a grant
of statutory license for cover versions. A song typically contains both literary and
musical work. Therefore, the tune and lyrics together forms the song. Lyric of a song
is the literary part and it is protected as a literary work and the writer of the lyrics is
 26

the author of the work. Music accompanying the song is treated as a musical work
and the author of the musical work is the composer of the musical work. So, in the
song there can be two rights that are set of rights in the literary work and rights in
the musical work and they are owned by different people. The author of this right is
different people.

Original literary work –

Literary work refers to works that are in writing. The Act does not classify literary
work, but we understand that as work that are captured in writing. The act says that
literary work includes computer programmes, tables, and compilations including
computer databases. The literary work need not have any literary merit and it is not
the job of the courts to look into the literary merit of copyright work.

Original dramatic work –

It defined as “including any piece of recitation, choreographic work or entertainment
in dumb show, the scenic arrangement or acting, form of which is fixed in writing or
otherwise but does not include a cinematograph film”. The terms literary and
dramatic are used together and the principle applicable to literary work will be
applicable to dramatic work as well. The author of a dramatic work is the person who
authors the work.

Cinematography films –
It means any work of visual recording and includes a sound recording accompanying
such visual recording and sound recording accompanying such visual recording and
“cinematograph” shall be construed as including any work produced by any process
analogous to cinematography including video films. The author of cinematography
films is the producer of the films.

Original artistic work –

An artistic work as mentioned in the Act, a painting, a sculpture, a drawing includes a
diagram, map, chart or plan, an engraving or a photograph, and whether or not any
such work possesses artistic quality. A work of architecture is included as an artistic
work and any work of artistic craftsmanship can also come under the ambit of an
artistic work. The author of an artistic work is the artist of the artistic work other
than photograph. The photograph is a person who takes the photograph, who is
regarded as the author. Recently there was an issue with regard to a selfie taken by a
monkey. The Court has held that, the person has to be a human being and so far
intellectual property rights have only covered Intellectual work of humans.

Sound recordings –
It means a recording of sound from which such sounds may be produced regardless
of the medium on which such recording is made or the method by which the sounds
are produced. The author of sound recording is the producer of the sound recording.
 27

The sound recording may involve musicians, it may involve singers, but the author is
the producer.

Eastern Book company v/s Navin J. desai

The question involved was whether there is any copyright in the reporting of the
judgment of a court. The Delhi High court held that it is not denied that under
section 2(k) of the Copyright Act, a work which is made or published under the
direction or control of any Court, tribunal or other judicial authority in India is a
Government work.
Godrej Soaps (P) Ltd v/s Dora Cosmetics Co.
The Delhi High Court held that where the carton was designed for valuable
consideration by a person in the course of his employment for and on behalf of the
plaintiff and the defendant had led no evidence in his favor; the plaintiff is the
assignee and the legal owner of copyright in the carton including the logo.

Conclusion
Intellectual Property Rights have been present for a very long time. These are the
rights that are given to people for their creative work. These rights are in the form of
patents, copyrights, and trademarks. They form the intellectual property laws to
protect these rights of the people over their creativity. Even though the intellectual
property laws have developed over time, the intent of the laws remains the same
i.e., that the laws encourage the creativity shown by people and for them to reap
benefits from their ideas.
 28

10. Provisions in International Copyright Order, 19199

INTRODUCTION
Contrary to patents, copyright is simple to obtain and, unfortunately, simple to
violate. One of the distinguishing characteristics of copyright is that, unlike other
intellectual properties, it is not required to be officially registered with any
government agency. Copyright is an exclusive privilege granted to the creator or a
group of people to safeguard their creative work.

Chapter IX of the Copyright Act of 1957 and the International Copyright Order of
1999 provide India with copyright protection for foreign works. Only the nations
included in the International Copyright Order, 1999’s Schedule are qualified to use
the copyright protection, which is assumed to exist throughout all of India. This
protection offered by the Indian government depends on the level of protection
given to Indian authors’ works by the relevant foreign nation. As a result, the
Copyright Act of 1957 gives the Central Government the authority to revoke any
protection or right granted to a foreign work if it determines that the country of
origin of that foreign work has not done enough to safeguard the literary creations of
Indian authors. An author must first ascertain the level of protection offered to the
works of foreign authors in the country in which they seek to get copyright
protection for their creations.

INTERNATIONAL COPYRIGHT:
A concept known as “international copyright” protects a writer’s work everywhere.
Protection against illegal usage is offered in a given nation depending on its national
legislation. In spite of this, many countries offer protection to foreign works under
certain conditions that have been greatly streamlined by international copyright
conventions and treaties. The International Copyright Order was established in 1999
to offer protections that transcend national boundaries for the authors and owners
of works that are subject to foreign copyright. International Copyright are protected
through various convention like the:
 TRIPS Agreement (Agreement on Trade Related Aspects of Intellectual
Property Rights)
 Multilateral Convention for Avoidance of Double Taxation of Copyright
Royalties.
 Universal Copyright Protection Convention.
 The Berne Convention.
 Convention for Protection of Producers of Phonograms against unauthorized
duplication of their Phonograms.

INTERNATIONAL COPYRIGHT LAW:

International copyright law just doesn’t exist! It is not practical to register your
intellectual property in every place, and it cannot be protected in jurisdictions where
it is not. It was essential to create international standards that all nations could
 29

adhere to when resolving disputes over copyright. The Copyright Act of 1957, the
Copyright Rules of 2013, and the International Copyright Order, 1999 all govern
copyright in India. The International Copyright Order of 1999 and the Copyright Rules
of 2013 are supplemental legislation to the basic copyright law, the Copyright Act of
1957. The process of granting protection to foreign copyright holders has been
greatly simplified by a variety of international copyright treaties and agreements.

PRINCIPLES CONVENTION AND AGREEMENT

It includes:
THE BERNE CONVENTION
The Berne Convention was established in 1886 to safeguard creative works and the
legal rights of its creators. It provides artists, writers, musicians, poets, and other
creators with the tools to manage how, by whom, and under what conditions their
works are utilized. Three fundamental ideas served as the foundation for the Berne
Convention. This includes a number of clauses that specify the minimum level of
protection that must be provided, as well as exceptional clauses that developing
nations may utilize.
The three basic principles are the following:
 The works created in one of the contracting nations must be protected equally
in all of the other contracting nations.
 Protection is automatic, not contingent upon observing any formalities or
requirements.
 Protection must exist independently from the presence of protection in the
nation where the work was first created. When the work’s protection in the
nation of origin expires, however, if a Contracting nation provides for a longer
period of protection than the minimum period required by the convention,
protection may be revoked.
Before the Berne Convention there was very little protection for authors outside
their home country. India is a signatory of Berne Convention.

UNIVERSAL COPYRIGHT CONVENTION

UCC protects works by authors who are citizens or residents of countries that are
signatories to these treaties, as well as works that were first published in one of
those countries or published there within 30 days of the first publication in a country
that is a member of the Berne Union. According to the UCC, a notice of copyright in
the format and place required in the UCC must be used to satisfy any formality in
national law.
The UCC notice must include symbol © (C in a circle) the year of the work’s initial
publication, and the name of the copyright holder. This notice must be placed in a
way that provides reasonable notice of the copyright claim.

ROME CONVENTION
 Actors, musicians, singers, dancers, and others who perform literary or artistic
works are protected from specific acts for which they have not given their
 30

authorization, such as broadcasting or communicating a live performance to

the general public.
 The right to permit or restrict the direct or indirect reproduction of
phonograms belongs to the phonogram producers. According to the Rome
Convention, “phonograms” are any solely aural fixations of musical or other
sounds.
 The rebroadcasting of their broadcasts, the fixing of their broadcasts, and the
reproduction of such fixations are all actions that broadcasting organizations
have the right to permit or forbid.

TRIPS (Trade – related aspects of Intellectual Property Rights)

Following are the features of TRIPS:
 1996 was the year of signing
 Managed by the World Trade Organization (WTO)
 Includes how many clauses are concerned with protecting intellectual
property.
 Declares that the national legislation must enable the efficient enforcement of
IP rights and provides specific guidance on how this should be done.

WIPO COPYRIGHT TREATY

Following are the features of WIPO treaty:
 1996 year of signature
 Makes it clear that databases and computer programs are protected by
copyright and that the creator originally owned the exclusive right to transmit
works across networks like the Internet and comparable ones. Classifies
certain activities as copyright violations.
 The removal from a work of embedded rights management information. The
circumvention of technological protection mechanisms linked to works.

INTERNATIONAL COPYRIGHT ORDER

“A significant component of legislation governing the copyright of foreign works is
the International Copyright Order”. It was passed on March 24, 1999, and it became
effective on April 6, 1999. It was adopted by the Central Government under the
authority granted to it by Section 40 of the Copyright Act of 1957. It was adopted to
replace its forerunner, the International Copyright Order of 1991. A schedule that is
broken up into six parts and lists the nations that are entitled to copyright protection
in India is included in the Order along with the conditions and processes for foreign
works.
The nations that have signed the
 1971 Berne Convention
 The 1951 Universal Copyright Convention
 Convention on Phonograms in Geneva, 1971.
Agreement Regarding Trade-Related Aspects of Intellectual Property Rights. Who are
eligible to get protection under the Copyright Act, 1957 are those who have either
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ratified, accepted, or acceded to the afore mentioned Conventions, or who have not
yet ratified, accepted, or acceded to the afore mentioned Conventions.

COPYRIGHT INFRINGEMENT
Unauthorized use of a work that has been granted copyright is known as copyright
infringement. Thus, it is the unauthorized use of someone else’s copyrighted work,
which violates the owner’s rights to the work’s reproduction, distribution, exhibition,
and performance.
Section 51 of the Copyright Act specify when a copyright is infringed.
 Any act that only the copyright holder is authorized to perform is carried out
by someone else without first receiving consent from them.
 A person authorizes the use of the space for the transmission, sale,
distribution, or display of an unauthorized work unless they know or have
good reason to suspect that doing so will result in a copyright violation.
 A person brings in counterfeit copies of a work
 Without getting permission from the copyright holder, someone reproduces
his work in any way

THE COPYRIGHT ACT OF 1957

Despite the fact that Chapter IX of the Act deals with international copyright, the
phrases “foreign works” or “international copyright” are not defined elsewhere in
the Act9. However, section 2(l) of the Act describes a “Indian work” as a piece of
music, theater, or writing in which
 whose author is an Indian national;
 whose initial publication is in India; or
 Its author was an Indian citizen at the time the book was written, in the case
of an unpublished work.
As a result, it is safe to assume that works other than Indian Works come within the
category of Foreign Works. Additionally, section 40 of the Act provides definition of
“Foreign Work”. Under sections 40 through 43 of Chapter IX, international copyright
is covered. Essentially, the Act grants the Central Government the authority to
restrict the rights of foreign writers in certain circumstances and treats the Foreign
Works of the nations included as if they were Indian works under the 1999
international copyright order.

SECTION – 40 POWER TO EXTEND COPYRIGHT TO FOREIGN WORK

What is foreign work?
The Copyright Act of 1957 does not include a definition for the word “foreign work.”
However, it stands to reason that any task that does not qualify as “Indian Work”
under Section 2(l) of the Act will be considered “foreign work” when evaluating what
constitutes “foreign work.”
By publishing an Order in the Official Gazette, the Central Government is permitted
by this section of the Copyright Act to extend copyright to foreign works. One
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essential element of this clause is that only the countries named in The International
Copyright Order, 1999—the Order—may be granted copyright in India. The
“territories outside India” listed in the subsections of this clause must be included in
the International Copyright Order of 1999. Therefore, if a country’s name is not
included in the International Copyright Order, 1999, it cannot assert copyright for its
works in India. The following works can have any or all of the provisions of the
Copyright Act extended to them by the Central Government, treating them as though
they were Indian work.
 It is assumed that all works published outside of India were first published
there.
 Unpublished works by individuals who, at the time the work was written, were
subjects or citizens of another nation are to be treated as though they were
Indian citizens.
 Even though an author doesn’t have a home in India, the Copyright Act
nonetheless applies to him as though he did.
 Any work whose creator was a subject or citizen of a foreign nation at the
time of the work’s first publication, or who was deceased at the time of the
first publication and a subject or citizen of India.

PROVISO OF SECTION 40 OF THE COPYRIGHT ACT OF 1957

The International Copyright Order, 1999 and any other Order made in accordance to
this section must, however, comply with the proviso to this section, which states that
before adding a country (other than those with which India has entered into a Treaty
or which is a party to a Convention to which India is also a party), The central
authority must guarantee that the concerned nation has implemented or committed
to implementing measures to preserve the right to copy works there. The duration of
copyright protection in India may not exceed the duration of protection provided in
the nation where the foreign work was first created. Furthermore, the length of
protection offered by the foreign nation must not be longer than that of India.

SECTION 40A – BROADCASTING ORGANISATIONS AND PERFORMERS ARE

INCLUDED IN THE APPLICATION OF CHAPTER VIII
The Central Government may extend the rights under Chapter VIII to foreign
broadcasts and performances if it is satisfied that a foreign nation has made or has
agreed to make the necessary provisions for the protection of rights in that nation, as
is possible in India under the Copyright Act of 1957 the central government has the
authority to increase the rights given to broadcasting organizations under Chapter
VIII of the Copyright Act of 1957.The International Copyright Order, 1999 (the
“Order”) applies to broadcasting organizations as if their headquarters were in India
or as if the broadcast originated from an Indian transmitter.
 To portray performances that took place outside of India as though they were
from India.
 To integrate performances as though they were published in India when a
sound recording that was released in a nation party to the Order does so.
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To live performances that are not fixed to a sound recording that are broadcast by a
broadcasting organization whose headquarters are in a country covered by the Order
as though the headquarters were located in India or where the broadcast is
transmitted from a transmitter located in a country covered by the Order as though
the broadcast was transmitted from India. This clause also grants the International
Copyright Order the power to fully or partially apply Chapter VIII to broadcasts or
performances that are made abroad, as well as to broadcasts or performances that
are made generally or in groups.

SECTION – 41 EXISTENCE OF COPYRIGHT THROUGHOUT INDIA

According to this section, copyright in a foreign work would exists throughout India
where,
 A (foreign) work is created or published for the first time by, or with the
guidance of, any entity;
 At the time of the book’s initial publication in India, the copyright to the work
was not established.
Either the work is published in accordance with a contract in that regard with the
author, in which case the contract does not reserve to the author the copyright in
the work, or under section 17, which addresses the idea of the First Owner of
Copyright, any copyright in the work would belong to the organization. For the
purposes of holding, managing, and enforcing copyright as well as in relation to all
legal proceedings involving copyright, any international organization that at the
relevant time lacked the legal capacity of a body corporate shall have and be deemed
to have had that capacity at all relevant times. The organizations covered by this
section are those that are listed in the 1999 International Copyright Order.