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 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•Unpublished works by individuals who, at the time the work was written, were subjects or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.
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.

Doctrine of Fair Dealing

Doctrine of Fair Dealing is an exception to the law that would usually protect any
material that would be considered to be copyrighted as under the Indian Copyright
Act, 1957 (hereinafter known as the “Act”). It is a legal doctrine which permits a
person to use any work which is protected under the Act with limited usage of such
work so as to maintain the sanctity and originality of such work as well as the
registered proprietor of the work.

The meaning of “Fair Dealing” depends on different facts and circumstances. In

India, the Court applies basic common sense so that they can determine as to what
can be constituted as Fair Dealing on the case- to- case basis. Fair dealing is a
significant limitation on the exclusive right of the copyright owner. It has been
interpreted by the courts on a number of occasions by judging the economic impact it
has on the copyright owner. Where the economic impact is not significant, the use
may constitute fair dealing. The fair nature of the dealing depends on the following
four factors:

1. the purpose of use;

2. the nature of the work;

3. the amount of the work used, and

4. the effect of use of the work on the original.

In the recent amendment that has been made in the Act known as the Copyright
(Amendment) Act, 2012, the concept of Fair Dealing has also included works in
the line of musical or cinematographic in nature.
What do you mean by Fair Use under the Indian Copyright Act?

Under Indian regime legal framework being the Copyright Act, 1957, section 52 lays
down certain acts or works that cannot be considered as an infringement of copyright
namely fair dealing with a literary, dramatic, musical or artistic work not being a
computer program for the purposes of-

• fair dealing with any work, not being a computer programme, for the purposes of
—
(i) “private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of
a lecture delivered in public.

• the transient or incidental storage of a work or performance purely in the

technical process of electronic transmission or communication to the public;

• transient or incidental storage of a work or performance for the purpose of

providing electronic links, access or integration, where such links, access or
integration has not been expressly prohibited by the right holder, unless the
person responsible is aware or has reasonable grounds for believing that such
storage is of an infringing copy:

• the reproduction of any work for the purpose of a judicial proceeding or for the
purpose of a report of a judicial proceeding;
Indian Cases

• India TV Independent News Services Pvt. Ltd. vs Yashraj Films Pvt. Ltd-
The facts of this case state that the defendants that is, India TV broadcasted a
show on its channel documenting the life of the singers wherein the singers were
shown to perform their own songs however, while such performance was being
filmed clips of a movie scene were shown to play in the background. The plaintiff,
that is, Yashraj Films Private Limited claimed that such a scene of the movie in
the background amounts to infringement of its Copyright. The defendants took
the defence of fair dealing under Section 52. The Delhi Court dismissed the
defence of fair dealing and restrained the defendants from the production,
distribution and broadcasting or in any way exploiting any cinematograph film,
sound recording or part thereof which is owned by the Plaintiff. This litigation
battle went on for years, where different angles and viewpoints were considered,
in an appeal from the above order, the Hon’ble bench of Delhi High Court also
felt the need to overlook the conventional approach of dealing with Section 52 of
the Copyright Act, the bench set aside the order passed by the single Judge and
uplifted the restrictions so imposed. However, the Appellants were still prohibited
from broadcasting any cinematograph film without the appropriate permission. It
was through the Copyright (Amendment) Act, 2012 that fair dealing as a concept
brought within its scope musical recordings and cinematograph films. Through
this case the Indian legal system made advancement in the field of fair dealing
under Copyright by overlooking the rigid and conventional approach and
implementing the necessary changes.
• Civic Chandran vs Ammini Amma- In this case, the Court considered that a
parody did not constitute an infringement of copyright as long as it has not been
misused or misappropriated. In consonance with this case, the Court established
the following three tests which is to be taken into consideration to determine
work to be an infringement of copyright:
5. “the quantum and value of the matter taken in relation to the comments or
criticism;

6. the purpose for which it is taken; and

 7. the likelihood of competition between the two works.

How can fair use be incorporated as a defence in Copyright Infringement Litigation?

When a person is faced with Copyright infringement litigation, he/she can adopt either
of the two strategies as a defence;

1. They can challenge the Copyrightability of the work

2. Argue that the work was well within the ambit of fair dealing under Section 52 of
the Copyright Act, 1957.

How is fair dealing disadvantageous to the owner of a Copyright?

There has always been a thin line of difference between Infringement and Fair
Dealing. Section 52 of the Copyright Act 1957 does not permit the reproduction of
the whole work. Such substantial copying and reproduction of the whole of the work
would amount to infringement however; one of the major loopholes present in the
Indian Copyright Act is that it does not define what substantial or insubstantial portion
of the Copyright work is. As per the legal interpretation of the provision it is clear to
one and all that only the insubstantial portion of the original copyright work comes
within the ambit of fair dealing. The question of whether a work is fair dealing or not
is a qualitative one that differs from case to case.

Conclusion

It can be safely concluded that the test to determine a copyrighted work as a Fair Use
of such work indeed differs from case to case since such facts are to be given high
priority more than the law itself. Though the legislature has attempted to make law on
this concept more flexible but precise, in the Indian scenario, section 52 of the
Copyright Act, 1957 makes a legitimate stand for the public to rely upon this provision
for now. As mentioned under Article 13 of the TRIPS (Trade-Related Aspects of
Intellectual Property Rights) which reads as follows:

“Members shall confine limitations or exceptions to exclusive rights to

certain special cases which do not conflict with a normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the rights
holder”.

India has been able to establish a proper ground as for now since the whole idea
having an exception as against the protection of copyright is to give rise to creativity
and growth which can be transformed and expressed in many other new ways so as to
encourage people to attain such degree of creativity with careful consideration to the
original copyrighted work.