Intellectual Property Rights-II

1. Nature and subject matter of copyright

Copyright is a type of intellectual property right. Copyright is a right given by the law to
creators of literary, dramatic, musical and artistic works and producers of cinematograph films
and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction,
communication to the public, adaptation and translation of the work. There could be slight
variations in the composition of the rights depending on the work.
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 term "copyright" refers to a collection of exclusive rights that Section 14 of the Act grants
to the owner of the copyright. Only the copyright owner or another person who has permission
to do so from the copyright owner may exercise these rights. These rights include the ability to
adapt, reproduce, publish, translate, and communicate with the public, among other things.
Copyright registration just establishes an entry for the work in the Copyright Register kept by
the Registrar of Copyrights and does not grant any rights.

Meaning of Copyright

The meaning of copyright encompasses a bundle of rights that the law provides to the creator
or owner of the original work.

These rights typically include:

1. Reproduction Right: The exclusive right to reproduce the work in any material form,
including storing it electronically.

2. Distribution Right: The right to distribute copies of the work to the public by sale or
other transfer of ownership, or by rental, lease, or lending.

3. Public Performance Right: The right to perform the work publicly, whether directly
or by means of any device or process.

4. Adaptation Right: The right to make adaptations, translations, or other derivative

works based on the original work.

5. Communication to the Public Right: The right to communicate the work to the public,
including broadcasting, streaming, or making it available online.

6. Moral Rights: These include the right to claim authorship of the work and to oppose
any distortion, mutilation, or other modification of the work that would harm the
creator’s reputation.
Definition of Copyright

Under Section 2(d) of the Copyright Act, 1957, “copyright” refers to the exclusive rights
granted to the creator of an original work, allowing them to control the use and distribution of
that work.

The term “work” in this context includes:

1. Literary works: This includes books, articles, essays, and any other written material.

2. Dramatic works: This includes plays, scripts, screenplays, and other works intended
for stage or screen performance.

3. Musical works: This covers compositions of music, whether with or without

accompanying lyrics.

4. Artistic works: This includes paintings, drawings, sculptures, photographs, and other
forms of visual art.

5. Cinematograph films: This covers movies and other visual recordings, including
sound recordings that accompany them.

6. Sound recordings: This includes audio recordings, whether musical, spoken word, or
any other form of recorded sound.

Nature and scope of copyright

• Copyright law serves as a fundamental principle that prevents the unauthorised use or
exploitation of someone else’s creative work, recognising the labor, skill, and
investment involved in its creation.
• Its primary purpose is to protect authors and creators from the unlawful reproduction
or exploitation of their works by others.
• Entrepreneurs such as publishers or cinematograph film producers, who are assigned or
licensed specific rights by the copyright owner, rely on this protection to recover their
investments and earn profits.
• In ancient times, copyright became significant with the invention of the printing press,
enabling larger-scale reproduction of books.
• Copyright is a statutory creation, meaning that only those rights provided by the
copyright act can be claimed by an individual.
• However, the scope of copyright extends beyond traditional forms of creative
expression, as seen in the case of Akuate Internet Services Pvt Ltd vs. Star India
Pvt Ltd (2013).
• This landmark case introduced the “hot news” doctrine and shed light on the
responsibility of filing lawsuits to prevent unauthorised publication or sharing of match
information.
• Copyright grants authors a negative right, safeguarding their original works from
unauthorised reproduction or exploitation.
 • This right also extends to preventing others from exercising any other form of right
attached to copyright without proper authorisation.
• For example, in the case of a literary work, the scope of copyright also covers the
creation of a dramatic or cinematographic adaptation based on the original material.

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.

1. 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 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.

2. 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.

So, courts have found that football fixture lists, mathematical tables, tombola tickets, etc. are
capable of copyright protection. The number of words in a copyrighted material is not an
indicator of quality and the author of copyrighted work is the author who makes the work or
who creates the work. There are certain things that cannot be protected under a copyright. For
instance, phrases, names, invented words and slogans cannot form a part of copyright
protections. The names especially used in commerce or in trade are protected by trademarks
and invented work and slogans, for example the slogan which Pepsi used a while ago “Yeh Dill
Mange more”, which is an advertising slogan was held something that can not protected under
the copyright Act.

Secondary or derivative works can also be protected. They can be prospected only if, it involves
the right kind of labor, it should be of such a nature that the effort brings a material change in
the work. Therefore, the work should get changed based on the effort that change should be of
the right kind and the prior work should be different from the secondary work. When the author
assigns the copyright to another person, the new work will be entitled to a copyright as well.
Adaptations and abridgment of existing works can have a copyright; translations can also be
entitled to a copyright. Compilations and collective works can have copyrights. A copyright
can subsist in the individual item as well as in the collection as a whole. For computer programs
the source code can be protected as a literary work.

3. 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.

4. 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.

5. 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.

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

The term of copyright varies depending on the kind of work that is protected. Literary, musical,
dramatic and artistic works are protected for the life of the author and after the death for a
period of 60 years. For posthumous work published after the death of the author. It is 60 years
from the time the work is first published. Therefore, cinematograph films sound recording,
government works, works of international organizations all are prospected for 60 years from
the work first published.
Here the ownership in copyright may vest in different persons under different circumstances.
Like of a work is created by an employee in the course of his or her employment, the employer
owns the copyright. If the work is created by an independent contractor and the independent
contractor signs a written agreement stating that the work shall be “made for hire,” the
commission person or organization owns the copyright only if the work is a part of the larger
literary work, such as an article in a magazine or a poem or story in anthology; part of a motion
picture or other audiovisual work, such as screenplay, a translation, a supplementary work, such
as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; a
compilation; an instructional text; a test or answer material for a test; or an atlas. Works that do
not fall within one of these eight classifications constitute works made for hire only if created
by an employee within the scope of his or her employment. If the creator has sold the entire
copyright, the purchasing business or person becomes the copyright owner.

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. The society is never static; it keeps on changing
with change in time. The globalization of the society has led to the advancement in technology.
With the advancement in technology, the copyright infringement has become more easy now-
a-days. Therefore, the legislative amendments made in copyright Act all these years’ help in
protecting the authors from any copyright infringement. The higher level of protection is given
to literary, dramatic, musical or artistic work in any country.

2. Authorities under the biodiversity act and their powers and functions
Introduction
Biodiversity is a generic term that can be related to many environments and species, for
example, forests, freshwater, marine and temperate environments, the soil, crop plants,
domestic animals, wild species and micro-organisms.

Biodiversity or Biological diversity is a term that describes the variety of living beings on earth.
In short, it is described as degree of variation of life. Biological diversity encompasses
microorganism, plants, animals and ecosystems such as coral reefs, forests, rainforests, deserts
etc.

Biodiversity also refers to the number, or abundance of different species living within a
particular region. It represents the wealth of biological resources available to us. In biodiversity,
each species, no matter how big or small has an important role to play in ecosystem.
Various plant and animal species depend on each other for what each offer and these diverse
species ensures natural sustainability for all life forms. A healthy and solid biodiversity can
recover itself from variety of disasters.
The Biological Diversity Act, 2002 was born out of India’s attempt to realise the objectives
enshrined in the United Nations Convention on Biological Diversity (CBD) 1992 which
recognizes the sovereign rights of states to use their own Biological Resources.

• Biodiversity: The biodiversity means the variability among living organisms from
all sources and the ecological complexes of which they are part and includes
diversity within species or between species and of ecosystems
• Biological Resources: The biological resources mean plants, animals and micro-
organisms or parts thereof, their genetic material and by-products (excluding value
added products) with actual or potential use or value, but does not include human
genetic material.

The Biological Diversity act aims at the,

• Conservation of biological resources,

• Managing its sustainable use and
• Enabling fair and equitable sharing benefits arising out of the use and knowledge
of biological resources with the local communities.

Meaning & scope biological diversity

Biological diversity or biodiversity is ‘the variety of life’, and refers collectively to variation
at all levels of biological organization. Thus biodiversity can be considered as some small or
large part of an area, of the area as a whole, of the several areas in a region, of a continent or
an ocean basin, or of the entire Earth.

Many more formal definitions of biological diversity or biodiversity have been proposed,
which develop this simple one. Of these, perhaps the most important and far-reaching is that
given in Article 2 the Convention on Biological Diversity.

“Biological diversity’ means the variability among living organisms from all sources including,
inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of
which they are part; this includes diversity within species, between species and of ecosystems.”

Much of the usage of the term ‘biodiversity’ is value laden. It carries with its connotations that
biodiversity is per se a good thing, that its loss is bad, and that something should be done to
maintain it. Consequently, it is important to recognize that there is rather more to use of the
term than a formal definition in the Convention, or for that matter elsewhere, and its application
often reveals just as much about the values of the person using it.

Authorities:

1. The National Biodiversity Authority

The National Biodiversity Authority (NBA) was established in 2003 by the Central
Government to implement India’s Biological Diversity Act (2002). It is a Statutory body that
performs facilitative, regulatory and advisory functions for the Government of India on the
issue of Conservation and sustainable use of biological resources.
Section 8 lays down the provision of the establishment of the National Biodiversity Authority
at the national level. The National Biodiversity Authority shall be a body corporate, having
perpetual succession and a common seal, with power to acquire, hold and dispose of property,
both movable and immovable, and to contract, and shall by the said name sue and be sued.
Headquarters: NBA has its Headquarters in Chennai, Tamil Nadu, India.

Structure of the NBA

The National Biodiversity Authority consists of the following members to be appointed by the
central government, namely:

i. A Chairperson,
ii. Three ex officio members,
• One representing the Ministry dealing with Tribal Affairs and
• Two representing the Ministry dealing with Environment and Forests.
iii. Seven ex-officio members to represent respectively the Ministries of the Central
Government dealing with:
• Agricultural Research and Education
• Biotechnology
• Ocean Development
• Agriculture and Cooperation
• Indian Systems of Medicine and Homoeopathy
• Science and Technology
• Scientific and Industrial Research;
iv. Five non-official members to be appointed from amongst specialists and scientists
having special knowledge and experience in the required matters.
Functions of the NBA

Section 18 of the act mentions the functions of NBA an they are following:

i. It shall be the duty of the National Biodiversity Authority to regulate activities

referred to in sections 3, 4 and 6 and by regulations issue guidelines for access to
biological resources and for fair and equitable benefit sharing.
Section 3: Certain persons not to undertake Biodiversity related activities without approval of
National Biodiversity Authority

Section 4: Results of research not to be transferred to certain persons without approval of

National Biodiversity Authority

Section 6: Application for intellectual property rights not to be made without approval of
National Biodiversity Authority

ii. The National Biodiversity Authority may grant approval for undertaking any
activity referred to in sections 3, 4 and 6.
 iii. Advising the central government, regulating activities and issuing guidelines for
access to biological resources and for fair and equitable benefit sharing arising out
of the biological resources.
iv. Advising the State Governments in the selection of areas of biodiversity importance
to be notified as heritage sites and suggest measures for their management.
v. Taking necessary measures to oppose the grant of intellectual property rights in any
country outside India on any biological resource obtained from India or knowledge
associated with such biological resources derived from India illegally.
vi. perform such other functions as may be necessary to carry out the provisions of this
Act.
2. State Biodiversity Boards (SBBS)

The SBBs are established by the State Governments in accordance with Section 22 of the Act.
The Board shall be a body corporate by the name aforesaid, having perpetual succession and a
common seal, with power to acquire, hold and dispose of property, both movable and
immovable, and to contract, and shall by the said name sue and be sued.

Further Section 22(2) does not allow the State Biodiversity Board to be constituted for a Union
territory. The National Biodiversity Authority shall exercise the powers and perform the
functions of a State Biodiversity Board for that Union territory:

Provided that in relation to any Union territory, the National Biodiversity Authority may
delegate all or any of its powers or functions under this sub-section to such person or group of
persons as specified by the Central Government.

Structure

The State Biodiversity Board consists of the following members:

i. A Chairperson
ii. Not more than five ex officio members to represent the concerned Departments of the
State Government
iii. Not more than five members from amongst experts in matters relating to conservation
of biological diversity, sustainable use of biological resources and equitable sharing of benefits
arising out of the use of biological resources.

iv. All the members of the SBB are appointed by the respective State Governments.

Functions of SBBs
According to Section 23 of the act, the SBB has the following functions:

i. Advise the State Government, subject to any guidelines issued by the Central
Government, on matters relating to the conservation, sustainable use or sharing equitable
benefits.
ii. Regulate by granting approvals or otherwise requests for commercial utilization or bio-
survey and bio-utilization of any biological resource by people.
iii. Perform such other functions as may be necessary to carry out the provisions of this
Act or as may be prescribed by the State Government.

Chairperson

Section 8 and Section 22(4) (a) states that the chairman should shall be an eminent person
having adequate knowledge and experience in the conservation and sustainable use of
biological diversity and in matters relating to equitable sharing of benefits, to be appointed by
the Central Government.
Section 9 states that the term of office and conditions of service of the Chairperson and the
other members other than ex officio members of the NBA/SBB shall be such as may be
prescribed by the Central Government.

Section 10 states that chairperson shall be the Chief Executive of the National Biodiversity
Authority and shall exercise such powers and perform such duties, as may be prescribed.

Meetings OF NBA/SBB

Section 12 of the act states the meetings of the NBA/SBB and its procedures:
The NBA/SBB shall meet at such time and place and shall observe such rules of procedure in
regard to the transaction of business at its meetings (including the quorum at its meetings) as
may be prescribed.

The Chairperson of the NBA/SBB shall preside at the meetings of the NBA/SBB.

If for any reason the Chairperson is unable to attend any meeting of the NBA/SBB, any member
of the NBA/SBB chosen by the members present at the meeting shall preside at the meeting.

All questions which come before any meeting of the NBA/SBB shall be decided by a majority
of votes of the members present and voting and in the event of equality of votes, the
Chairperson or, in his absence, the person presiding, shall have and exercise a second or casting
vote.

Every member who is in any way, whether directly, indirectly or personally, concerned or
interested in a matter to be decided at the meeting shall disclose the nature of his concern or
interest and after such disclosure, the member concerned or interested shall not attend that
meeting.

No act or proceeding of the NBA/SBB shall be invalidated merely by reason of—

a. any vacancy in, or any defect in the constitution of, the National Biodiversity Authority; or

b. any defect in the appointment of a person acting as a member; or

c. any irregularity in the procedure of the National Biodiversity Authority not affecting the
merits of the case.

Constitution of committees by NBA AND SBB

According to Section 13, NBA/SBB may constitute a committee to deal with agro-biodiversity.

“Agro-biodiversity” means biological diversity of agriculture related species and their wild
relatives.

Members of the committee

NBA/SBB may constitute such number of committees as it deems fit for the efficient discharge
of its duties and performance of its functions under this Act.

A committee constituted under this section shall co-opt such number of persons, but they should
not be members of the NBA/SBB, the persons so co-opted shall have the right to attend the
meetings of the committee and take part in its proceedings but shall not have the right to vote.

The persons appointed as members of the committee under sub-section (2) shall be entitled to
receive such allowances or fees for attending the meetings of the committee as may be fixed
by the Central Government/State government.
Other functions and powers
In addition to Section 18 and Section 23, the NBA/SBB also have the following functions and
powers:

i. Appointment of certain officers and employees

According to Section 14 of the act, NBA/SBB may appoint such officers and other employees
as it considers necessary for the efficient discharge of its functions under this Act. The terms
and conditions of service of such officers and other employees of the NBA/SBB shall be such
as may be specified by regulations.

ii. Authentication of orders and decisions of NBA/SBB

According to Section 15, all orders and decisions of the NBA/SBB shall be authenticated by
the signature of the Chairperson or any other member authorized by the NBA/SBB in this
behalf and all other instruments executed by the NBA/SBB shall be authenticated by the
signature of an officer of the National Biodiversity Authority authorized by it in this behalf.

iii. Delegation of powers:

According to Section 16, NBA/SBB, by general or special order in writing, delegate to any
member, officer of the NBA/SBB or any other person subject to such conditions, if any, as may
be specified in the order, such of the powers and functions under this Act as it may deem
necessary.

Exceptions to this provision is Section 50 and Section 64 (power to prefer an appeal under
section 50 and the power to make regulations under section 64)

Removal of members

Section 11 of the act states that the Central Government may remove from the NBA/SBB any
member who, in its opinion, has:
a. been adjudged as an insolvent; or
b. been convicted of an offence which involves moral turpitude; or
c. become physically or mentally incapable of acting as a member; or
d. so abused his position as to render his continuance in office detrimental to the public
interest; or
e. acquired such financial or other interest as is likely to affect prejudicially his functions as
a member.

3. Biodiversity Management Committees (BMCS)

According to Section 41 of the Act, every local body shall constitute the BMC within its area
for the purpose of promoting conservation, sustainable use and documentation of biological
diversity including:

• Preservation of habitats
• Conservation of Landraces
“landrace” means primitive cultivar that was grown by ancient farmers and their successors

• Folk varieties and cultivars

“Folk variety” means a cultivated variety of plant that was developed, grown and exchanged
informally among farmers;

“cultivar” means a variety of plant that has originated and persisted under cultivation or was
specifically bred for the purpose of cultivation;

• Domesticated stocks and breeds of animals

• Microorganisms And Chronicling of Knowledge Relating to Biological Diversity
Structure

• It shall consist of a chairperson and not more than six persons nominated by the local body.
Out of total members of a BMC, at least 1/3rd should be women and at least 18% should
belong to the Scheduled Castes/ Scheduled Tribes.
• The Chairperson of the Biodiversity Management Committee shall be elected from
amongst the members of the committee in a meeting to be chaired by the Chairperson of
the local body.
• The chairperson of the local body shall have the casting votes in case of a tie.
Functions

• The main function of the BMC is to prepare People’s Biodiversity Register in consultation
with the local people.
• The register shall contain comprehensive information on availability and knowledge of
local biological resources, their medicinal or any other use or any other.
• Biodiversity Management Committees are to be constituted at the municipal level
according to Section 41 of the Law. Biodiversity Management Committees are critical for
 documenting biodiversity, ensuring its appropriate use, and resolving Access and Benefit
Sharing (ABS) concerns.
• The National Biodiversity Authority and the State Biodiversity Boards shall consult the
Biodiversity Management Committees while taking any decision relating to the use of
biological resources and knowledge associated with such resources occurring within the
territorial jurisdiction of the Biodiversity Management Committee.

Problem Based

3. Fair Dealing

4. Biodiversity (Recognition of access)