06/03/25

COPYRIGHT
• The term ‘Copyright’ is coined from its own
ingredients, i.e., ‘the right to copy’
• The exclusive right of the owner of the works
to make copies thereof, and to exclusively
exercise various other rights granted to him by
law

06/03/25
 University of London Press Ltd. v.
University Tutorial Press Ltd. (Contd.)

06/03/25
 University of London Press Ltd. v.
University Tutorial Press Ltd. (Contd.)
• Copyright Acts are not concerned with the originality of ideas,
but with the expression of thought, and, in the case of
“literary work,” with the expression of thought in print or
writing. The originality which is required relates to the
expression of the thought. But the Act does not require that
the expression must be in an original or novel form, but that
the work must not be copied from another work - that it should
originate from the author.
• One can copy ideas, yet how those ideas are conveyed has
to be different. This is where arguably the layman's
perception of what original is differs from that of the legal
view of originality.
06/03/25
 University of London Press Ltd. v.
University Tutorial Press Ltd. (Contd.)
• Papers were original works, well thought over, drawn
upon stocks of knowledge. The papers which they
prepared originated from themselves, and were,
within the meaning of the Act. Therefore, work was
original.
• The court held that merely because similar questions
have been asked by other examiners, the plaintiff
shall not be denied copyright.
• "...what is worth copying is prima facie worth
protecting"
06/03/25
 SWEAT OF THE BROW DOCTRINE
• According to this doctrine,
an author gains rights
through simple diligence
during the creation of a
work. Substantial creativity
or “originality” is not
required.
• The creator is entitled to
such rights on account of
efforts and expense put in
by him in the creation of
such a work.
06/03/25
 SWEAT OF THE BROW DOCTRINE

• For Example, the creator of a telephone directory or a

database must have a copyright over the product not
because such a compilation of data showcases any
creativity, or the author has expressed anything
original, but merely because of the effort, time and
money invested by the creator to collect and organize
all the data in a specific manner. But such a
compilation must be the work of the author himself
and must not be copied from another source.

06/03/25
Feist Publications Inc. v Rural Telephone
Service Co.
• Are the names, addresses and
phone numbers in a telephone
directory able to be copyrighted ?
• Facts cannot be copyrighted, they
existed before being reported and
would have continued to exist if a
telephone directory had never
been published

06/03/25
Feist Publications Inc. v Rural Telephone
Service Co.
• "Many compilations consist of nothing but raw data
-- i.e. wholly factual information not accompanied by
any original expression. On what basis may one
claim a copyright upon such work? Common sense
tells us that 100 un-copyrightable facts do not
magically change their status when gathered together
in one place. … The key to resolving the tension lies
in understanding why facts are not copyrightable:
The sine qua non of copyright is originality."

06/03/25
Feist Publications Inc. v Rural Telephone
Service Co. (Contd.)
• To establish copyright infringement, two elements must be
proven: ownership of a valid copyright and copying of
constituent elements of the work that are original.
• The first element is met in this case because the directory
contains some forward text. As to the second element, the
information contains facts, which cannot be copyrighted. They
existed before being reported and would have continued to
exist if a telephone directory had never been published.
• There is no originality in the formatting, i.e. Rural had not
selected, coordinated, or arranged the facts in any original
way. so there is no copyrightable expression and therefore, no
infringement.
06/03/25
Feist Publications Inc. v Rural Telephone
Service Co. (Contd.)
• Facts cannot be subject to copyright laws; otherwise
there would be no spreading of information or
learning. Subjecting facts to copyright laws would
mean that any time a person used a fact found in a
book, be it in a school paper, newspaper, or another
book, that person would be guilty of piracy.

06/03/25
Feist Publications Inc. v Rural Telephone
Service Co. (Contd.)
• In order to be original a work must not only have
been the product of independent creation, but it must
also exhibit a “modicum of creativity”.
• This doctrine stipulates that originality subsists in a
work where a sufficient amount of intellectual
creativity and judgment has gone into the creation of
that work. The standard of creativity need not be high
but a minimum level of creativity should be there for
copyright protection.

06/03/25
 COMPUTER PROGRAMMES
• Section 2 (ffb)- • Database is an
“Computer programme” means a accumulation of
set of instructions expressed in information stored in a
words, codes, schemes or in
any other form, including a
way such that it can be
machine readable medium, systematically searched
capable of causing a computer and retrieved by
to perform a particular task or computer
achieve a particular result
• Computer database is a
TRIPS Article 10(1) Computer
programmes, whether in collection of information
source or object code, shall be stored on computer
protected as literary works media
06/03/25
 CREATION RECORDS LTD. v. NEWS
GROUP NEWSPAPERS LTD.
• Copyright subsists in the official photograph and if it were the only
source of the scene it would be an infringement to copy that, either
by a direct copying process or by the scene being recreated and a
fresh photograph taken of that recreation. But it is a basic
proposition of copyright law that two works created from a
common source do not by reason of that fact involve copying one
of the other, however similar they are.
• It was argued that Mr. Gallagher was the author of every
photograph because he had set the scene and arranged the angle
and lighting of the shot. The judge dismissed that argument on the
ground that it is the person who takes the photo (that is to say,
presses the shutter button) who can ordinarily claim to be the
author of the work.
06/03/25
 TEMPLE ISLAND COLLECTIONS
LTD. V. NEW ENGLISH TEAS LTD.

 Trouble for photographers?

 Someone once wrote "sometimes the best things about
something are also the worst things" meaning that what makes
something so popular also is the root cause of it becoming so
unpopular.
06/03/25
 THE GREAT MONKEY SELFIE
CONTROVERSY

06/03/25
 INTERNATIONAL COPRIGHT
PROTECTION
• The Berne Convention for the Protection of Literary and Artistic
Works 1886- an agreement to honor the rights of all authors who
are nationals of countries that are party to the convention.
• A Union of member countries, with the Act providing protection
for the work of authors who are nationals of one of the countries
of the Union, or where the work is first published in a country that
is a member of the Union
• An author from any country that is a signatory of the convention
is awarded the same rights in all other countries that are
signatories to the Convention as they allow to their own nationals,
in addition to any rights granted under the Convention.

06/03/25
 ORIGINALITY
• ‘Originality shares the fate of a pink elephant,
easy to recognize difficult to define’.
-Professor Franz van Isacker
• ‘Originality is a legal fiction. It is inherently
unascertainable…because authors reshape
prior works of others’.
-Jessica Lipman

06/03/25
 WALTER V. LANE [1900] AC 539
• The reporters of The Times, managed by Moberley Bell made notes
in shorthand, transcribed them, corrected, revised and punctuated
them and published them in newspapers as verbatim reports of the
speeches.
• It is relevant to the understanding of Walter v. Lane that a collection
of Lord Rosebery’s speeches had already been published as a
collection, drawing on reports of speeches previously printed in The
Times in 1896 by publisher Neville Beeman (sought permission from
The Times)
• This time, the book by John Lane and Charles Geake was met with
the threat of legal action by The Times on the very day of
publication: 24 June 1899.
• Book- Appreciations and Addresses

06/03/25
 WALTER V. LANE [1900] AC 539
• The defendants argued that
even if the work of the
reporters required skill, it
was not ‘literary skill’ that
was employed in creating the
verbatim reports of speeches
—it was essentially
mechanical—and so the
reporter was not an ‘author’
under the terms of the 1842
Act, which conferred
copyright protection upon
the ‘author’ of a ‘book’.
06/03/25
 WALTER V. LANE [1900] AC 539
• The source of confusion was the conceptual difference between
(1) the common law proprietary right in unpublished literary
work and (2) the statutory ‘privilege of making copies’. The first
—the common law right—was not at issue in the case because
Lord Rosebery was making no claim or complaint. The second—
the statutory privilege—did not include any requirement of
literary merit or originality in order for copyright to subsist.
• The Times, claimed only its thin copyright in the reports—not
in the speeches themselves.

06/03/25
 WALTER V. LANE [1900] AC 539
• It depended on the nature of the reporter’s skill and art; it
would have to be more than simply taking dictation. A report
might be ‘obtained under circumstances of peculiar difficulty’
involving maintaining accuracy in taking down a rapid speaker,
obtaining the material in a situation of intrigue, or translating
from a foreign language. Thus, with some doubt, it was
concluded that ‘under the conditions existing’ in the case, the
reporters were authors.
• Moreover, it was in the public interest to protect the result.
Without the ‘brain and handiwork’ of the reporter, ‘the book
would never have had existence, and the words of Lord
Rosebery would have remained unrecorded’.

06/03/25
 WALTER V. LANE [1900] AC 539
• There is no copyright in a speech until it has been printed and
published; why then should not the copyright belong to the
reporter—and of course to the person who employs and pays
such reporter—just as much as to the collector of names and
addresses, and to the person who employs and pays such
collector?
• Lord Rosebery wrote to Geake on 14 August 1900 expressing
his sympathy and joking that American sales had only
increased due to the controversy, with unwitting buyers
believing it to contain scandalous material.

06/03/25
 BAKER V. SELDEN
• Does copyright
protection for a book
explaining an art or
system prevent others
from using the system
or the forms
incidentally used?

06/03/25
 BAKER V. SELDEN (CONTD.)
• Selden copyrighted a book in which he used an
introductory essay explaining his system of book
keeping, followed by forms to put the system to use.
• Baker began selling a book of forms with columns
and headings arranged differently to achieve the
same result.
• Selden successfully sued for copyright infringement.
Baker appealed.

06/03/25
 BAKER V. SELDEN (CONTD.)
• The copyright protection for a book explaining an art or system
extends only to the author’s unique explanation of it and does not
prevent others from using the system or the forms incidentally
used.
• Copyright is based on originality, not novelty, and protects the
explanation of the system and not the use of the system.
• In this case, therefore, the copyright Selden (Plaintiff) obtained
could not give him the exclusive right to use the bookkeeping
system or the forms necessary to such use.
• When the application of explanatory material results in copying of
the said material, such “copying” would not be considered to
infringe upon the copyright over the explanatory material.

06/03/25
 CCH CANADIAN LTD. V. LAW SOCIETY OF
UPPER CANADA
• The Law Society of Upper Canada (LSUC) has a
reference/research library offering a custom and self serve
photocopy service.
• CCH Canadian (CCH) sues seeking a declaration of subsistence
and ownership of copyright in 11 specific works, a declaration
that LSUC has infringed on their copyright, and a permanent
injunction preventing further copying.
• LSUC denies the infringement and files a counterclaim for
declaration that copyright is not infringed when a single copy
of a reported decision, case summary, statute, regulation or a
limited selection of text from a treatise is made by the Great
Library staff or patron for research purposes.
06/03/25
 CCH CANADIAN LTD. V. LAW SOCIETY OF
UPPER CANADA
• Are publishers' materials "original works" protected
by copyright?
• Did the Library authorize copyright infringement by
maintaining self-service photocopiers and copies of
the publishers' works for its patrons' use?
• Were the law society's dealings with the publishers'
works "fair dealings”?

06/03/25
 CCH CANADIAN LTD. V. LAW SOCIETY OF
UPPER CANADA
• The publishers’ works are original and protected by copyright act.
• In comparison with the similar US Supreme Court case of Feist
Publications Inc. v. Rural Telephone Service, McLachlin
rejected Justice O'Connor's "minimal degree of creativity" test but
agreed with her assessment of the "sweat of the brow" approach
and found it too low a requirement.
• Applied a test for originality:
– The expression of an idea is an exercise of skill and judgment
where "skill" is "the use of one's knowledge, developed aptitude
or practised ability in producing the work" and "judgment" is
"the use of one's capacity for discernment or ability to form an
opinion or evaluation by comparing different possible options in
producing the work".
06/03/25
 CCH CANADIAN LTD. V. LAW SOCIETY OF
UPPER CANADA
– Must not be so trivial that it could be characterized as a purely
mechanical exercise
– Creativity is not required for a work to be “original”
• In concluding that all eleven works were protected by
copyright, she noted that the creation of headnotes,
summaries, and topical indices involved sufficient exercise of
skill and judgment so as to render them "original" works.
• However, she also noted that the judgments themselves were
not copyrightable, nor were the typographical corrections
done by the editors sufficient to attract copyright protection.

06/03/25
 CCH CANADIAN LTD. V. LAW SOCIETY OF
UPPER CANADA
• No evidence the copiers were used in a manner inconsistent
with copyright law. LSUS lacks sufficient control over the
works patron chooses to copy, purposes for copying, or
photocopiers themselves.
• The fact that the library posted a notice to patrons stating
that photocopiers should not be used to infringe on
copyrights was not an acknowledgment that such
infringement occurred.
• LSUC does not have to go out and prove that people who use
copiers or take advantage of the custom photocopy service
have done so in accordance with the law; the burden of proof
rests on CCH (can rely on the fair dealing exception).
06/03/25
 CCH CANADIAN LTD. V. LAW SOCIETY OF
UPPER CANADA
• McLachlin noted that fair dealing was to be regarded as an
"integral part" of the Copyright Act rather than "simply a
defence". The fair dealing exceptions were characterized as a
user right, and must be balanced against the rights of
copyright owners.
• When claiming "fair dealing" the defendant must show that-

1) the dealing was for the purpose of either research or private

study and that
2) it was fair.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• What shall be the standard of
originality in the copy-edited
judgments of the Supreme
Court which is a derivative
work and what would be
required in a derivative work
to treat it the original work
of an author and thereby
giving a protected right
under the Copyright Act,
1957 to the author of the
derivative work ?

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• The appellants in the present case are involved in printing and
publishing of a law report known as “Supreme Court Cases” in which
they publish all reported and unreported judgments of Supreme
Court of India.
• The appellants make various changes in the original judgments and
make it user friendly by making an addition of cross-
references, standardization or formatting of the text,
paragraph numbering, verification and by putting other
inputs.
• They also prepared the headnotes comprising of two portions, the
short note consisting of catch/lead words written in bold; and the
long note, which is comprised of a brief discussion of the facts and
the relevant extracts from the judgments and orders of the Court.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• Respondent 1, Spectrum Business Support Ltd. has brought out a
software called “Grand Jurix” published on CD-ROMs and
Respondent 2, Regent Data Tech Pvt. Ltd. has brought out a
software package called “The Laws” published on CD-ROMs.
• As per Appellants all the modules in the respondents’ software
packages have been lifted verbatim from the appellants work.
• The respondents have copied the appellants’ sequencing,
selection and arrangements of cases coupled with the entire text
of copy edited judgments as published in the appellants’ law
report along with the style and formatting, the copy editing,
paragraph numbers, footnote numbers, cross-referencing, etc.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• After putting various inputs in the raw text, it constitutes an
‘original literary work’ of the appellants in which copyright
subsists under Section 13 of the Copyright Act, 1957 and thus
the appellants alone have the exclusive right to make printed
as well as electronic copies of the same under Section 14 of
the Act.
• Any scanning or copying or reproduction done of or from the
reports or pages or paragraphs or portions of any volume of
SCC by any other person, is an infringement of the copyright
in SCC within the meaning of Section 51 of the Act.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• To support copyright there must be some substantive variation
and not merely a trivial variation
• Novelty, invention or innovative idea is not the requirement for
protection of copyright but it does require minimal degree of
creativity
• No copying of the headnotes, footnotes and editorial notes of
the copy-edited judgment appearing in the journal
• Judgments delivered by the Supreme Court would be a
government work and in the absence of any agreement to the
contrary, the government shall be the first owner of the
copyright in the judgments of the Supreme Court.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• The Supreme Court adopted a “middle path” approach by
enunciating an “exercise of skill and judgment” standard.
• In essence, the court held that to claim copyright in a compilation,
the author must produce a material with “exercise of his skill and
judgment” which may not be creativity in the sense that it is not
novel or non-obvious, but at the same time it is not the product of
merely labour and capital.
• It is not necessary that work created should have a literary merit.
The courts can only evaluate whether the skill, labour and capital
actually employed, required in creating the work, is not trivial or
negligible.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK
• The inputs put in the original text by the Appellants in
(i) segregating the existing paragraphs in the original text by breaking
them into separate paragraphs;
(ii) adding internal paragraph numbering within a judgment after
providing uniform paragraph numbering to the multiple judgments;
and
(iii) indicating in the judgment the Judges who have dissented or
concurred by introducing the phrases like ‘concurring’, ‘partly
concurring’, ‘partly dissenting’, ‘dissenting’, ‘supplementing’,
‘majority expressing no opinion’, etc., have to be viewed in a
different light.
The task of paragraph numbering and internal referencing requires skill
and judgment in great measure.

06/03/25
EASTERN BOOK COMPANY V. D.B. MODAK

• In these inputs put in by the Appellants in the

judgments reported in SCC, the appellants have a
copyright and nobody is permitted to utilize the
same.

06/03/25
 LADBROKE V. WILLIAM HILL
• Value of work as a whole is relevant when considering originality;
not possible to split constituent parts of work of making coupons.
• If the plaintiffs have employed more than negligible skill and labour
in their selection of 16 lists containing varieties of bets which they
offer to their customers they are entitled to be protected in respect
of their coupons as being original compilations.
• True that the bulk of the coupon documents consists of lists of
matches and of odds offered in which no copyright is claimed but
the essential feature of the coupons, indeed of all the football
coupons in evidence, is the selection of a limited number of
matches from the whole number and the selection of a number of
bets.

06/03/25
 LADBROKE V. WILLIAM HILL
• These bets require nice calculation and great skill in order to
ensure that the bookmaker will win vis-à-vis the punters as a
whole while at the same time the odds offered will not be so
unattractive to the individual punter that he will not fill in the
coupon in the hope of winning.

06/03/25
 KRISHIKA LULLA & ORS. V. SHYAM
VITHALRAO DEVKATTA & ANR.
• Can copyright exist in
the title of a work?
• Respondent claimed
copyright in the
synopsis of a story
written by him with the
title “Desi Boys” and got
it registered with the
Film Writers Association
in 2008.
06/03/25
 KRISHIKA LULLA & ORS. V. SHYAM
VITHALRAO DEVKATTA & ANR.
• He mailed the concept of the story in the form of a synopsis
with the title “Desi Boys” as an attachment to an email
addressed to the appellants, but did not receive any reply
from the appellants.
• Suddenly the respondent saw the promos of a film bearing
the title “Desi Boys”, actually spelt as “Desi Boyz”.
• The appellants released their film with the title “Desi Boyz”
throughout the world including India in 2011
• It must be first seen if the title “Desi Boys” can be the subject
of copyright?

06/03/25
 KRISHIKA LULLA & ORS. V. SHYAM
VITHALRAO DEVKATTA & ANR.
• On a plain reading of Section 13, copyright subsists in inter-
alia an original literary work.
• In the first place a title does not qualify for being described as
“work”. It is incomplete in itself and refers to the work that
follows.
• Secondly, the combination of the two words “Desi” and
“Boys” cannot be said to have anything original in it. They are
extremely common place words in India. It is obvious,
therefore, that the title “Desi Boys”, assuming it to be a work,
has nothing original in it in the sense that its origin cannot be
attributed to the respondent. In fact these words do not even
qualify for being described as a ‘literary work’.
06/03/25
 IDEA-EXPRESSION DICHOTOMY
 There is no copyright in an idea as such
 Once expressed, it becomes the subject
matter of copyright
 Copyright exists in a work only when it is
represented in a material form- FIXATION
 DOCTRINE OF MERGER

• If there is only one way of expressing an idea

or limited ways, the idea and expression are
merged and not covered under copyright
• Merger is not just a defense but renders the
expression uncopyrightable
• Merger operates when expression is truly
inseparable from unprotected matter
 R.G. ANAND V. DELUX FILMS AND ORS.
(CONTD.)
• The Appellant, R. G. Anand had written and produced a play
called ‘Hum Hindustani’ in 1953 which received huge success
and was re-staged numerous times. With the increasing
popularity of the play, the second Respondent, Mr. Mohan
Sehgal, got in touch with the Appellant.
• During the Appellant’s meeting with the respondent, the
Appellant narrated the entire play ‘Hum Hindustani’ to the
respondent and had elaborate discussions regarding filming
the play in January, 1955. However, no further communication
was made to the Appellant post the discussion.

06/03/25
 R.G. ANAND V. DELUX FILMS AND ORS.
(CONTD.)
• Respondents in the month of May 1955 commenced the making
of the film ‘New Delhi’, which the Appellant believed to be based
on his play. Nevertheless, the Respondents guaranteed him that
the movie had no resemblance and was not remotely related to
his play. But after watching the movie in September, 1956 the
Appellant came to the conclusion that the movie was indeed a
copy of his play and consequently filed a suit for permanent
injunction seeking a restraint against the Respondents from
infringement in his Copyright in the play ‘Hum Hindustani’.
• In the present case, the play and the film revolve around the
same theme of ‘provincialism’ but it is well established that a
mere idea cannot be the subject matter of copyright.

06/03/25
 R.G. ANAND V. DELUX FILMS AND ORS.
(CONTD.)
• The story of the film portrayed two concerns of provincialism-
• Firstly, the function of provincialism with respect to marriage
and secondly, in relation to renting out accommodation.
• Further, it also dealt with issues such as evils of a society
dominated by caste and the ills of dowry. The latter two issues
have not been dealt in the play at all.
• Also, the play was restricted only to one aspect of
provincialism which is regarding the marriage between people
belonging to different states. Thus, in many ways the story
and its depiction is quite different from the one in the play.

06/03/25
 R.G. ANAND V. DELUX FILMS AND ORS.
(CONTD.)
• After applying the principles enunciated above the court ruled
that it cannot be said that the film is a “substantial or material
copy of the play written by the plaintiff.”
• The judges were of the opinion that no prudent person after
seeing both the works will get the impression that there is a
copy.
• The central theme of provincialism is the same but that is an
idea not protected by copyright.
• Justice Pathak in his concurring opinion said “[t]he story
portrayed by the film travels beyond the plot delineated in the
play.”

06/03/25
 R.G. ANAND V. DELUX FILMS AND ORS.
(CONTD.)
• It was also observed that “[i]n the attempt to show that he is
not guilty of infringement of copyright, it is always possible for
a person intending to take advantage of the intellectual effort
and labours of another to so develop his own product that it
covers a wider field than the area included within the scope of
the earlier product, and in the common area covered by the
two productions to introduce changes in order to disguise the
attempt at plagiarism.”

06/03/25
 NICHOLAS V. UNIVERSAL PICTURES CORP.
(CONTD.)
• Plaintiff was the author of a play, “Abie’s Irish Rose.”
Defendant produced a motion picture, “The Cohens and
Kellys,” which the plaintiff claimed was taken from it.
• Both works portray stories of a Jewish and an Irish-Catholic
family in which the children fall in love and are married, their
parents are outraged, a grandchild is born, and there is a
reconciliation that follows.
• May two plays be similar enough in plot for a finding of
infringement?

06/03/25
 NICHOLAS V. UNIVERSAL PICTURES CORP.
(CONTD.)
• Copyright does not extend to incidents, characters or settings
that are as a practical matter indispensable to the treatment of a
topic (scènes à faire).
• The loose definition of scenes a faire refers to situations in which
there is essentially no other way to express a particular idea
except by using certain elements and in such instances, those
elements will often be termed “scènes à faire”.
• As long as you take the un-copyrightable elements of another
person’s work, the two works will not be substantially similar
enough to constitute copyright infringement
• The theme was basically an idea and the characters were mainly
stock figures, which have been used for many decades.

06/03/25
 NICHOLAS V. UNIVERSAL PICTURES CORP.
(CONTD.)
• You can't copyright something general like ”a
father who disapproves of his daughter's
fiancée." That's just an idea, not
an expression.
• While a plot is more of an idea, the court
recognizes that in some cases the play may
nonetheless be copyrightable, though not in
this case.

06/03/25
 Contribution of Each Author
• Necessary to show that each of the authors
contributed to the making of the work
• The contribution must be significant and
original; significant here means ‘substantial’,
or ‘considerable’ or ‘non-trivial’
• Joint-authorship does not require that the
respective contributions be in equal
proportions. However, it does require the
contributions to be of the right kind
06/03/25
Collaboration Between the Authors
• The work must have been produced through a
process of collaboration between the authors
• There must have been some common design,
co-operation or plan that united the authors
(even if only in a very loose sense)
• Eg. No joint authorship in case of a poem
written by one author and translated by
another

06/03/25
The Respective Contributions Must Not
be Distinct or Separate from Each other
• The contributions must merge to form an
integrated whole, rather than a series of
distinct works
• Eg. If the contributions of two authors merged
in such a way that no one author is able to
point to a substantial part of the work and say
‘that is mine’, the authors would be joint
authors

06/03/25
 Contract of Service and Contract
for Service
• Two aspects to the Work Hire Doctrine-
Contract of Service and Contract for Service
• An employee-employer contract is a
contract of service
• A contractor-client contract is a
contract for service

06/03/25
 Who is an Employee?
• For the relationship to be one of employment,
there are two factors that must be present-
a)Mutuality of obligation
b)Control

If these two factors are present, the relationship

might be one of employment. However, these
factors are not of themselves conclusive
06/03/25
 Who is an Employee? (Contd.)
• Mutuality of Obligation- In an employment
relation the employer undertakes and is
bound to provide work and pay, the employee
to provide their labour
• Control- One party (the employer) must be
capable of exercising control over the other
(the employee)

06/03/25
 GRIGGS GROUP LTD. & OTHERS V. EVANS
& OTHERS
• In certain circumstances
the courts may infer that
an independent contractor
is subject to an implied
obligation to assign the
copyright to the
commissioner.

06/03/25
 GRIGGS GROUP LTD. & OTHERS V. EVANS
& OTHERS (CONTD.)
• The claim arose following a dispute between R Griggs Group
Limited (‘Griggs’), the creator and manufacturer of Dr.
Martins, and an Australian competitor, Raben Footwear Pvt.
Limited (‘Raben’).
• In 1988 Griggs decided to combine the two marks to form a
combined logo and commissioned an advertising agency to
produce it for them. The drawing was done by Evans who, at
that time, was working for the advertising agency as a
freelance at a flat rate of £15 per hour.
• Evans was instructed to design "visuals for [the claimant’s] UK
point of sale material

06/03/25
 GRIGGS GROUP LTD. & OTHERS V. EVANS
& OTHERS (CONTD.)
• The invoice referred to "… UK point of sale material designs
including: client briefing, headline writing, logo ‘combination’
designs, highly finished visuals for client presentation".
• Raben had approached Evans (‘Evans’), and purchased the
combined "Airwair" logo from him. They argued that Evans
was the first owner of the copyright in the combined logo and
that it had acquired that copyright by virtue of an assignment
from Evans.
• Evans said he was employed merely to create some point of
sale material for Griggs and that, had he known he was being
instructed to produce a logo for all kinds of use all over the
world, he would have charged more than his standard rate.
06/03/25
 GRIGGS GROUP LTD. & OTHERS V. EVANS
& OTHERS (CONTD.)
• He argued that Griggs was entitled to a license to reproduce the logo for
point of sale material in the United Kingdom and that, for all other
purposes, the copyright belonged to Evans who could do with it
whatever he wanted.
• The reference to "UK point of sale" material was only for identification of
the work to be done, it was not there to describe or limit the rights in
the work.
• The implication of a term into a commissioning contract to the effect
that copyright would invariably belong to the client in all cases where
the client needed the right to exclude the contractor from using the
work depends on all the factual circumstances.

06/03/25
 GRIGGS GROUP LTD. & OTHERS V. EVANS
& OTHERS (CONTD.)
• In this case, if an officious bystander had asked at the time of
contract whether Evans was going to retain rights in the
combined logo which could be used against Griggs, or against
anyone to whom he sold the rights, anywhere in the world,
other than in respect of point of sale material in the UK, the
answer would surely have been "of course not". Evans had no
conceivable further interest in the work being created.

06/03/25
 SECTION 13(4)
• The copyright in a cinematograph film or a
[sound recording] shall not affect the separate
copyright in any work in respect of which or a
substantial part of which, the film, or as the
case may be, the [sound recording] is made.

06/03/25
 ARTICLE 6bis
• “Independently of the author’s economic
rights, and even after the transfer of said
rights, the author shall have the right to claim
authorship of the work, and to object to any
distortion, mutilation or other modification of,
or other derogatory action in relation to, the
said work, which would be prejudicial to his
honour or reputation.”

06/03/25
 SMT. MANNU BHANDARI V.
KALA VIKAS PICTURES PVT. LTD.

06/03/25
 SMT. MANNU BHANDARI V.
KALA VIKAS PICTURES PVT. LTD.
• Mannu Bhandari, the Plaintiff/Appellant, was an author of great
repute in Hindi Literature. She entered into a contract with the
Defendants/Respondents for the assignment of the rights in her
novel ‘Aap Ka Bunty’ for its production into a film.
• The Respondents produced the film ‘Samay Ki Dhara’ based on the
aforesaid novel.
• However, the Appellant claimed that the Respondents have
distorted and mutilated her novel for commercial gain.
• Appellant primarily objected to (i) the title ‘Samay Ki Dhara’ and
prayed for a direction to amend the film’s title, (ii) the change in the
exhibition of certain characters of the novel, and (iii) the mutilation
of the theme by use of vulgar dialogues.

06/03/25
 SMT. MANNU BHANDARI V.
KALA VIKAS PICTURES PVT. LTD.
• Before the pronouncement of the judgment by the High Court
of Delhi, the parties reached a settlement that the
Respondents would delete the Appellant’s name and the
name of her novel from the credits, and in return, the
Appellant shall not claim any rights whatsoever in the
film ‘Samay Ki Dhara’.
• But the parties requested the Court to pronounce the
judgment as there were no decisions by a Court of law on this
issue.
• Therefore, it turned out to be the first case on the
interpretation of s.57 of the Copyright Act, 1957.

06/03/25
 SMT. MANNU BHANDARI V.
KALA VIKAS PICTURES PVT. LTD.
• The basic question before the Court was how to balance the
author’s freedom of expression with that of the director in the
field of art.
• The Court agreed with the trial Court to as much that some
changes are inevitable when a novel is being converted into a
motion picture, but held that such changes or modifications
should not convert the work into an entirely new version of
the original work.
• The modifications should not distort or mutilate the original
novel. The main theme, the situations and the main
characters of the novel must be untouched.

06/03/25
 SMT. MANNU BHANDARI V.
KALA VIKAS PICTURES PVT. LTD.
• Section 57 lifts the author’s status beyond the material gains
of copyright and gives it a special status.
• An author’s right to restrain distortion etc. of his work is not
limited to a case of literary reproduction of his work. The
restraint order in the nature of injunction under Section 57
can be passed even in cases where a film is produced based
on the author’s novel.
• The language of Section 57 is of the widest amplitude and
cannot be restricted to ‘literary’ expression only.

06/03/25
 SMT. MANNU BHANDARI v.
KALA VIKAS PICTURES PVT. LTD.
• Visual and audio manifestations are directly covered.
• The court observed that by reading the contract with
Section 57, it is obvious that modifications, which are
permissible, are such modifications, which do not
convert the film into an entirely new version from
the original novel.
• The modifications should also not distort or mutilate
the original novel.

06/03/25
 AUTHOR’S SPECIAL RIGHTS (SECTION 57)

(1) Independently of the author's copyright and even after the

assignment either wholly or partially of the said copyright, the
author of a work shall have the right-
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion,
mutilation, modification or other act in relation to the said work
which is done before the expiration of the term of copyright if
such distortion, mutilation, modification or other act would be
prejudicial to his honour or reputation:

06/03/25
 AUTHOR’S SPECIAL RIGHTS (SECTION 57)

Provided that the author shall not have any right to restrain or
claim damages in respect of any adaptation of a computer
programme to which clause (aa) of sub-section (1) of section 52
applies.
Explanation.- Failure to display a work or to display it to the
satisfaction of the author shall not be deemed to be an
infringement of the rights conferred by this section.]

(2) The right conferred upon an author of a work by sub-section

(1), other than the right to claim authorship of the work, may be
exercised by the legal representatives of the author.

06/03/25
 AMAR NATH SEHGAL v. UOI

06/03/25
 AMAR NATH SEHGAL v. UOI
• Amar Nath Sehgal, the Plaintiff, was a sculptor of international
repute and fame. In 1957, he was approached by the
Government of India, to design murals to be installed on the
walls of Vigyan Bhavan. Plaintiff accepted the offer and
completed the production of his piece of art.
• The mural was a symbol of India’s cultural heritage and was
themed on ‘science of rural and modern India’.
• It was installed in the entrance lobby of Vigyan Bhavan in
1962 and stayed installed till 1979 when it was pulled down
and kept in a Government store room.

06/03/25
 AMAR NATH SEHGAL v. UOI
• Plaintiff ran from pillar to post to get the mural reinstated. No
positive action was taken on Plaintiff’s request. In 1991, Plaintiff
received a letter from Ministry of Urban Development towards
re-instating his mural but no action was taken after the said letter.
• Later, in September, 1991 Plaintiff addressed a legal notice to the
Defendant, i.e. Ministry of Urban Development. However, no
action was taken by the Defendant. Therefore, Plaintiff filed the
present suit.
• The mural was removed in the year 1979 and therefore the cause
of action arose in 1979. Hence, the suit being filed in 1992, i.e.
after 13 years from the date of the offending act, was barred by
limitation.

06/03/25
 AMAR NATH SEHGAL v. UOI
• As the factual contents of the letter were not refuted, the
Court observed that the limitation period would begin from
the date of receipt of the letter and therefore, the suit was
within limitation.
• Where the owner (not being the author) of the copyright
work, treats the work in a manner prejudicial to the
reputation and honour of the author, the Court may transfer
all rights over the work to the author

06/03/25
 AMAR NATH SEHGAL v. UOI
• It was held that when an author creates a work of art or a
literary work, it results in the creation of following rights:
• a. Paternity Right/ Identification Right/Attribution Right, i.e., his
right to have his name on the work of art or literary work;
• b. Divulgation Right/ Dissemination Right, i.e., his economic
right to sell the work for a valuable consideration;
• c. Moral Right of Integrity, i.e., his right to object to such
treatment of his work which is derogatory to his reputation; and
• d. Right of Retraction, i.e., his right to withdraw his work from
publication, if he feels that due to passage of time and changed
opinion it is advisable to withdraw the work.

06/03/25
 AMAR NATH SEHGAL v. UOI
• The Court upheld the Plaintiff’s contentions that the right to
recreate the work lies with him, and therefore, he has a right
to get the mural back and be compensated for the loss of
reputation due to the mutilation.
• Defendants were directed to return the mural in 2 weeks’
time to the Plaintiff. Damages of Rs. 5 lakhs were awarded to
the Plaintiff towards the loss to his reputation.

06/03/25
 SECTION 18 (CONTD.)
• Author of the literary or musical work included in a
cinematograph film shall not assign or waive the
right to receive royalties to be shared on an equal
basis with the assignee of copyright for the utilization
of such work in any form other than for the
communication to the public of the work along with
the cinematograph film in a cinema hall except to the
legal heirs of the authors or to a copyright society for
collection and distribution and any agreement to
contrary shall be void

06/03/25
 SECTION 18 (CONTD.)
• Provided also that the author of the literary or
musical work included in the sound recording but not
forming part of any cinematograph film shall not
assign or waive the right to receive royalties to be
shared on an equal basis with the assignee of
copyright for any utilization of such work except to
the legal heirs of the authors or to a collecting
society for collection and distribution and any
assignment to the contrary shall be void

06/03/25
IPRS v. EASTERN INDIA MOTION PICTURES

• This judgement held that once the author of a

lyric or a musical work parts with his portion
of his copyright by authorizing a film producer
to incorporate it in a cinematographic film, the
producer acquires the exclusive right of
performing the work in public, without having
to secure any further permission of the author
of the musical work or lyric.

06/03/25
IPRS v. EASTERN INDIA MOTION PICTURES
• Justice Krishna Iyer, in his dissenting opinion, observed in his
hallmark style: “The film producer has the sole right to exercise what
is his entitlement under s. 14(1)(c) qua film, but he cannot trench on
the composer’s copyright which he does only if the ‘music’ is
performed or produced or reproduced separately, in violation of s.
14(1)(a). For instance, a film may be caused to be exhibited as a film
but the pieces of music cannot be picked out of the sound track and
played in the cinema or other theatre. To do that is the privilege of
the composer and that right of his is not crowned in the film
copyright except where there is special provision such as in s. 17,
proviso (c). So, beyond exhibiting the film as a cinema show, if the
producer plays the songs separately to attract an audience or for
other reason, he infringes the composer’s copyright.”

06/03/25
 SECTION 19 (CONTD.)
• No assignment of copyright in any work to
make a cinematograph film shall affect the
right of the author of the work to claim an
equal share of royalties and consideration
payable in case of utilization of the work in
any form other than for the communication to
the public of the work, along with the
cinematograph film in a cinema hall

06/03/25
 SECTION 19 (CONTD.)
• No assignment of the copyright in any work to
make a sound recording which does not form
part of any cinematograph film shall affect the
right of the author of the work to claim an
equal share of royalties and consideration
payable for any utilization of such work in any
form.

06/03/25
 DISPUTE SETTLEMENT
(SECTION 19A)
• Assignee fails to make sufficient exercise of rights
assigned- Copyright Board may revoke the
assignment
• Any dispute with respect to the assignment –
- CB after holding an enquiry may pass an order for
recovery of any royalty payable
- CB may pass order for implementation of terms
and conditions of assignment including payment
of consideration, if any, pending dispute over
revocation
- Final order to be passed within 6 months
 EXCLUSIVE LICENCE
• A licence which confers on the licensee or on
the licensee and persons authorized by him, to
the exclusion of all other persons (including
the owner of the copyright), any right
comprised in the copyright in a work, and
"exclusive licensee" shall be construed
accordingly

06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (2016)

06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (CONTD.)
• In 2007, Super Cassettes Industries Limited (SCIL) filed a suit
against MySpace, a social networking platform, alleging
copyright infringement.
• The platform allowed users to upload and share media files, inter
alia, and it was discovered that users were sharing SCIL’s
copyrighted works sans authorization.
• SCIL promptly proceeded to file a civil suit against MySpace for
primary infringement under section 51(a)(i) of the Copyright Act
as well as secondary infringement under section 51(a)(ii).
• The court held MySpace liable for copyright infringement despite
it having shown no knowledge about specific instances of
infringement

06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (CONTD.)
• The 2012 order was heavily criticized, for it was agnostic to the
technological complexities of regulating speech on the Internet
and cast unfathomable burdens on MySpace.
• In appeal (2016), the Division Bench, held that Super Cassettes
had failed to submit songs to MySpace's song ID database.
• Re: the circumstances of the case, the Court held that to attract
liability for secondary infringement, MySpace should have had
actual knowledge and not mere awareness of the infringement.
• Appreciating the difference between virtual and physical worlds,
the judgment stated “the nature of internet media is such that
the interpretation of knowledge cannot be the same as that is
used for a physical premise.”
06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (CONTD.)
• As per the court, the following facts only amounted to a
general awareness, which was not sufficient to establish
secondary liability:
• Existence of user agreement terms which prohibited users
from unauthorised uploading of content;
• Operation of post-infringement mechanisms instituted by
MySpace to identify and remove content;
• SCIL sharing a voluminous catalogue of 100,000 copyrighted
songs with MySpace, expecting the latter to monitor and quell
any infringement;

06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (CONTD.)
• Modifying videos to insert ads in them: SCIL contended that
MySpace invited users to share and upload content which it
would use to insert ads and make revenues – and this
amounted to knowledge.
• The Court found that video modification for ad insertion only
changed the format of the video and not the content; further,
it was a purely automated process and there was no human
intervention.

06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (CONTD.)
• Additionally, no constructive knowledge could be attributed to
MySpace to demonstrate reasonable ground for believing that
infringement had occurred. A reasonable belief could emerge
only after MySpace had perused all the content uploaded and
shared on its platform – a task that was impossible to perform
due to the voluminous catalogue handed to it and existing
technological limitations.
• The Court imposed a duty on SCIL to specify the works in which
it owned copyright and being shared without authorisation on
MySpace. It held that merely giving names of all content it
owned without expressly pointing out the infringing works was
contrary to the established principles of copyright law.

06/03/25
 MYSPACE V. SUPER CASSETTES
INDUSTRIES LIMITED (CONTD.)
• Setting aside the Single Judge's order aside, the Court directed
SCIL to provide a specific catalogue of infringing works which
also pointed to the URL of the files.
• Upon receiving such specific knowledge, MySpace has been
directed to remove the content within 36 hours of the issued
notice.
• MySpace was also asked to keep an account of the removals,
and the revenues earned from ads placed for calculating
damages at the trial stage.

06/03/25
 REMEDIES
• Anton Piller Order
• Mareva Injunction
• Norwich Pharmacal Order

06/03/25
 ANTON PILLER ORDER
• The order is named after the 1975 English case of Anton Piller
KG v Manufacturing Processes Limited, dealing with the theft of
trade secrets
• APO is a court order that provides the right to search premises
and seize evidence without prior warning.
• This is intended to prevent the destruction of
relevant evidence, particularly in cases of alleged
trademark, copyright or patent infringements.
• Such an order does not give the accused party the ability to
defend themselves, and are only issued exceptionally and
according to the three-step test set out by Ormrod LJ in Anton
Piller
06/03/25
 ANTON PILLER ORDER

I. There is an extremely strong prima facie case against the

respondent;
II. The damage, potential or actual, must be very serious for
the applicant and;
III. There must be clear evidence that the respondents have in
their possession relevant documents or things and that
there is a real possibility that they may destroy such
material before an inter partes application can be made.

06/03/25
 MAREVA INJUNCTION
• The legal order itself is in the form of an injunction, which
in Commonwealth jurisdictions is also known as
a freezing order, Mareva injunction, Mareva
order or Mareva regime.
• Takes after the case Mareva Compania Naviera SA v
International Bulkcarriers SA
• Mareva Injunction or Asset freezing is a legal process which
prevents a defendant to an action from dissipating
their assets from beyond the jurisdiction of a court so as to
frustrate a potential judgment. It is widely recognized in other
common law jurisdictions and such orders can be made to
have world-wide effect.
06/03/25
 MAREVA INJUNCTION
• It is variously construed as part of a court's inherent
jurisdiction to restrain breaches of its process.

06/03/25
 NORWICH PHARMACAL ORDER
• A Norwich Pharmacal order is a court order for the disclosure
of documents or information that is available in the United
Kingdom.
• It was first granted in 1974 by the House of Lords in Norwich
Pharmacal Co. v Customs and Excise Commissioners, a case
concerning the alleged violation of a patent by unknown
importers of the chemical subject to the patent.
• It is granted against a third party which has been innocently
mixed up in wrongdoing, forcing the disclosure of documents
or information.

06/03/25
 NORWICH PHARMACAL ORDER
• By identifying individuals, the documents and information
sought are disclosed in order to assist the applicant for such
an order in bringing legal proceedings against individuals who
are believed to have wronged the applicant.
• Norwich Pharmacal orders are used against Internet hosting
services and Internet service providers to identify users which
have allegedly engaged in wrongdoing.
• The House of Lords held that where an innocent third party
has information relating to unlawful conduct, a court could
compel them to assist the person suffering damage by giving
them that information.

06/03/25
 NORWICH PHARMACAL ORDER
• Norwich Pharmacal orders are typically sought when legal
proceedings for alleged wrongdoing cannot be brought
because the identity of the wrongdoer is not known.
• Parties which believe they have been wronged will apply for a
Norwich Pharmacal order to the court against third parties
who can identify the wrongdoer, because they unwittingly
facilitate the wrongdoing.

06/03/25
DEFENCES
FAIR USE
 PERFECT 10, INC. V. AMAZON.COM, INC

06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC
• In 2004, the plaintiff Perfect 10, Inc., a subscription website
for images of nude models, alleged that defendants Google,
Inc. and Amazon.com, Inc. infringed its copyrights.
• Prior to filing the suit, Perfect 10 (Plaintiff) repeatedly
informed Google (Defendant) that its thumbnail images and
in-line linking to the full-size images infringed Plaintiff’s
copyright and when Defendant continued its search engine
practices, plaintiff filed a copyright infringement action
against defendant, and sought a preliminary injunction to
prevent Google (Defendant) from infringing Plaintiff’s
copyright in its images and linking to websites that provide
full-size infringing versions of Plaintiff’s photographs.

06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC
• The plaintiff alleged that Google’s search engine results for
image searches included plaintiff’s images. The image search
results were shown as reduced-sized, lower resolution
“thumbnail” versions of the original images.
• Another aspect of plaintiff’s claim related to a business
agreement Google had with Amazon.com that permitted
Google’s search engine to send search results, including
plaintiff’s images, to Amazon.com customers.

06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC
• The Google (Defendant) search engine that provides responses in
the form of images is called “Google Image Search.”
• Google Image Search provides search results as a web page of
small images called “thumbnails,” which are stored in Google’s
(Defendant) servers. The thumbnail images are reduced, lower-
resolution versions of full-sized images stored on third-party
computers.
• The process the web pages use to direct a user’s browser to
incorporate content from different computers into a single window
is referred to as “in-line linking.” The term “framing” refers to the
process by which information from one computer appears to
frame and annotate the in-line linked content from another
computer.
06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC
• The District Court granted preliminary injunction against Google,
finding harm to the derivative market for Plaintiff’s reduced-size
images.
• The court also ruled that Defendant’s search engine likely infringed
Plaintiff’s display right with regards to the infringing thumbnails, but
that Plaintiff was not likely to succeed on its claim that Google
(Defendant) violated Perfect 10’s (Plaintiff) display or distribution
right regarding its full-size infringing images.
• Defendants appealed the district court’s grant of a preliminary
injunction enjoining Google from creating and publicly displaying
thumbnail versions of plaintiff’s images.
• Whether defendants were likely to prevail on the argument that
their use of thumbnail images was a fair use of plaintiff’s images?

06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC

• Defense of Fair Use pleaded

• Factor Test-
Purpose and character of use
(transformative?)
Nature of the copyrighted work
Amount and substantiality of the portion used
Effect of use on the market

06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC
• A search engine owner’s appropriation of a copyrighted image
for use as an indexed thumbnail picture is a protected “fair
use” under the copyright law where the balance of the
statutory fair use factors favors the owner of the search
engine.
• Although Perfect 10 (Plaintiff) would likely prevail in its prima
facie case that Google’s (Defendant) thumbnail images
infringe its display rights, Plaintiff has the burden to show a
likelihood that it will prevail against an affirmative fair use
defense by Defendant.

06/03/25
 PURPOSE AND CHARACTER OF USE
(TRANSFORMATIVE?)
• Defendant’s use of thumbnails is highly transformative.
Defendant’s search engine provides social benefit by
incorporating an original work into a new work that serves as
an electronic reference tool, thereby providing an entirely
new use for the original work.
• Defendant’s use of the thumbnails could supersede Plaintiff’s
cellphone download use and because the use was commercial
as Google’s thumbnails “lead users to sites that directly
benefit Google’s bottom line” through the AdSense program,
this fair use factor weighed “slightly” in favor of Perfect 10.

06/03/25
 NATURE OF THE COPYRIGHTED WORK
• Perfect 10’s images are “creative in nature” and therefore
“closer to the core of intended copyright protection than are
more fact-based works.”
• However, because the photos appeared on the Internet
before Google used thumbnail versions in its search engine
results, this factor weighs only slightly in favor of Plaintiff.

06/03/25
 AMOUNT AND SUBSTANTIALITY OF THE
PORTION USED
• This factor is neutral and does not weigh in favor of either
party because Google’s use of the entire photographic image
was reasonable in light of the purpose of a search engine and
since using less than the entire image would be less helpful to
a computer user.

06/03/25
 EFFECT OF USE ON THE MARKET
• Defendant’s use of thumbnails did not damage Plaintiff’s
market for full-size images.
• Plaintiff argued that the district court erred because the
likelihood of market harm may be presumed if an image’s
intended use is for commercial gain. However, this
presumption does not arise when a work is transformative
because market substitution is at least less certain, and
market harm may not be so readily inferred.
• Perfect 10 (Plaintiff) adduced no evidence that actual sales of
such images had been made for cell phone use. Any potential
harm to Plaintiff’s market remains hypothetical, and,
therefore, this factor does not favor either party.
06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC.
• While finding Google not liable for its copyright infringement
since its use was a fair use, the Court in this case nevertheless
ruled that Defendant could be held contributorily liable for
copyright infringement since an actor may be contributorily
liable for intentionally encouraging direct infringement if the
actor knowingly takes steps that are substantially certain to
result in such direct infringement.
• The Court found that the Defendant substantially helped
websites to distribute their infringing copies to a worldwide
market and helped a worldwide audience of users access
infringing materials.

06/03/25
 PERFECT 10, INC. V. AMAZON.COM, INC.

• The Court did not define what size a thumbnail is but the
examples the Court cited were only 3% of the original. Most
other major sites use a size not longer than 150 pixels on the
long size
• Specifically, the Court ruled that Google transformed the
images from a use of entertainment and artistic expression to
one of retrieving information

06/03/25
 LENZ V. UNIVERSAL MUSIC CORP.

06/03/25
 LENZ V. UNIVERSAL MUSIC CORP.
• In February 2007, Stephanie Lenz made a home video of her
young children dancing in her kitchen, in which the song “Let’s
Go Crazy” by the musical artist Prince can be heard for
approximately twenty seconds albeit with poor sound quality
• Lenz then uploaded the video to YouTube to share with friends
and family
• Universal Music Corporation (Universal), which owns the
copyright to the song, sent YouTube a DMCA takedown notice
requesting that Lenz’s video be removed due to
copyright infringement.
• The notice included a ‘good faith belief’ statement as required

06/03/25
 LENZ V. UNIVERSAL MUSIC CORP.
• After YouTube removed the video, Lenz sent a DMCA counter-
notification claiming the video did not infringe since it
constituted a fair use of Prince’s song; YouTube then restored
the video.
• Thereafter, Lenz sued with the claim that Universal had made
a misrepresentation under the Digital Millennium Copyright
Act.
• Representing by the Electronic Frontier Foundation, Lenz
argued that the music giant should have easily come to the
conclusion that the use of Prince's music in the video
constituted a fair use of copyright.

06/03/25
 LENZ V. UNIVERSAL MUSIC CORP.
• The case spent many years being litigated and resulted in a
significant decision in September 2015 by the 9th Circuit
Court of Appeals.
• The appellate circuit agreed with Lenz that copyright holders
must consider fair use before sending takedown notices, but
added, "If, however, a copyright holder forms a subjective
good faith belief the allegedly infringing material does not
constitute fair use, we are in no position to dispute the
copyright holder’s belief even if we would have reached the
opposite conclusion”.
• It took a while, but the U.S. Supreme Court has finally decided
that it won't review the case.
06/03/25
 CAMPBELL V. ACUFF-ROSE MUSIC, INC.
• In 1964, Roy Orbison and
William Dees wrote a rock
ballad “Oh Pretty
Woman”
• Orbison and Dees
assigned their rights in
the ballad to Acuff-Rose
Music, Inc.
• Acuff-Rose Music
registered the song for
copyright protection
06/03/25
 CAMPBELL V. ACUFF-ROSE MUSIC, INC.
• The members of the rap music
group 2 Live Crew—composed a
song called "Pretty Woman," a
parody based on ”Oh, Pretty
Woman"
• The group's manager asked
Acuff-Rose Music if they could
get a license to use Orbison's
tune for the ballad to be used as
a parody.
• Acuff-Rose Music refused to
grant the band a license but 2
Live Crew nonetheless produced
and released the parody in 1989

06/03/25
 CAMPBELL V. ACUFF-ROSE MUSIC, INC.
• For fair use purposes, is the commercial purpose of a work
the decisive element of the inquiry into the purpose and
character of the work?
• Almost a year later, after nearly a quarter of a million copies
of the recording had been sold, Acuff-Rose sued 2 Live Crew
and its record company, Luke Skyywalker Records,
for copyright infringement.
• The District Court granted summary judgment for 2 Live Crew,
holding that their song was a parody that made fair use of the
original song under § 107 of the Copyright Act of 1976.

06/03/25
 CAMPBELL V. ACUFF-ROSE MUSIC, INC.
• The Court of Appeals reversed and remanded, holding that the
commercial nature of the parody rendered it presumptively unfair
under the first of four factors relevant under § 107; that, by taking
the "heart" of the original and making it the "heart" of a new
work, 2 Live Crew had taken too much under the third § 107
factor; and that market harm for purposes of the fourth §107
factor had been established by a presumption attaching to
commercial uses.
• Campbell appealed to the Supreme Court and the Supreme Court
while reversing the decision of the appellate court, held that for
fair use purposes, the commercial purpose of a work is only one
element of the inquiry into the purpose and character of the
work.

06/03/25
 CAMPBELL V. ACUFF-ROSE MUSIC, INC.
• The other elements to be considered are the nature of the
copyrighted work, the amount and substantiality of the portion
used in relation to the copyrighted work as a whole, and the effect
of the use upon the potential market for the copyrighted work.
• In this case, it was error for the court of appeals to conclude that
the commercial nature of 2 Live Crew’s (Defendant) parody
rendered it presumptively unfair.
• No such evidentiary presumption exists for either the first factor
(the character and purpose of the use) or the fourth factor (market
harm).
• The court also erred in holding that 2 Live Crew (Defendant) had
copied excessively from the Orbison original, considering the satiric
purpose of their version.

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF
THE UNIVERSITY OF OXFORD V. RAMESHWARI
PHOTOCOPY SERVICES
• In 2012, 5 foreign publication houses namely, i) Oxford
University Press, ii) Cambridge University Press, United
Kingdom (UK), iii) Cambridge University Press India Pvt. Ltd.,
iv) Taylor & Francis Group, U.K. and, v) Taylor & Francis Books
India Pvt. Ltd., (hereinafter ‘Plaintiffs’) sought a permanent
injunction restraining the Defendants, ‘Rameshwari
Photocopy Services’ (Defendant No. 1), a photocopy shop in
the premises of the University of Delhi and the University of
Delhi (Defendant No. 2), from photocopying, reproducing and
distributing copies of the Plaintiffs’ works.

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF
THE UNIVERSITY OF OXFORD V. RAMESHWARI
PHOTOCOPY SERVICES (CONTD.)

• The Defendant No. 1 had obtained a license from the

Defendant No. 2 to make course packs for the students of the
university.
• The Plaintiffs’ claim was that photocopying of their books in
the premises amounted to infringement of their copyrights.
• The publishers sought a ban on all course packs, in an
aggressive interpretation of the Indian Copyright Act, 1957.

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• Over 300 authors and academics petitioned against the lawsuit in
an open letter to the publishers. Of these, 33 were authors
mentioned in the suit, whose books the publishers claimed had
been copied in the course packs. The letter stated, unequivocally:
• “As authors and educators, we would like to place on record our
distress at this act of the publishers, as we recognize the fact that in
a country like India marked by sharp economic inequalities, it is
often not possible for every student to obtain a personal copy of a
book. In that situation the next best thing would have been for
multiple copies of the book to be available in the library so that
students are able to access these books without any difficulty. But
given the constraints that libraries in India work with, they may only
have a single copy of a book and in many instances, none at all.”

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• In this regard, the Hon’ble court had to address the following
important issues:
1. Whether making of course packs by the first and Defendants
No. 2 amounted to infringement of copyright of the Plaintiffs;
2. Whether making of course packs by the Defendants fall under
one of the sub-sections of Section 52; and
3. Whether the action of Defendant No. 2 allowing Defendant
No. 1 to make photocopies and to supply photocopies to the
students, would tantamount to infringement by the
Defendant No.1 or the Defendant No.2 University of the
copyright in the said books?

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• The Court, addressing the first issue, said that the Defendant No. 2
was entitled to issue books, published by the Plaintiffs and
purchased by it from its library. However, they would not be entitled
to make photocopies of substantial part of the books.
• With respect to the same, the Court observed that if the students
would ultimately take photocopies/ photographs of the books
issued in the library, and if that would not amount to infringement,
the Defendant’s action should not too.
• To address the second issue, the Defendants too had relied on the
Section 52 of the Copyright Act of 1957. It was agreed to and held
that the use (photocopying, reproduction or distribution in the
university) of literary works of the Plaintiffs amounted to “fair use”
of the same, under Section 52 of the Copyrights Act.
06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• Section 52(1)(i) defines the exception of infringement of copyrighted
materials where there is a reproduction of any literary, dramatic,
musical or of any artistic work by -:
• By any teacher or pupil in the course of instruction,
• As part of the question to be answered in an examination
• In answers to such questions.
• The word ‘instruction’ in section 52 (1)(i) do not confine in a lecture
room or classroom, thus the scope of this provision is not limited to
reproduction of a work by a teacher in the course of a lecture but also
includes reproduction for the purpose of making and issuing course
packs.
• The term ‘teacher’ in Section 52 (1)(i) is not limited to an individual
teacher but includes the whole educational institution.
06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• The learned judge said - “Copyright, especially in literary works,
is thus not an inevitable, divine, or natural right that confers on
authors the absolute ownership of their creations. It is designed
rather to stimulate activity and progress in the arts for the
intellectual enrichment of the public. Copyright is intended to
increase and not to impede the harvest of knowledge. It is
intended to motivate the creative activity of authors and
inventors in order to benefit the public.”
• With regard to the license between Defendant No. 1 and
Defendant No. 2, the Court held that the Defendant no.2 had
not permitted the Defendant No.1 to photocopy entire books,
bind the same and offering or displaying the same for sale.

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)

“If a student needs 33 readings for a course like Agrarian Sociology, it could
take three to four months to collect the readings from different books in the
library. I make life easier for students – I get the readings and compile them in
course packs,” says Dharam Pal Singh, owner of Rameshwari Photocopy
Service.
06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• Justice Endlaw further stated that the situation was similar to
advocates getting photocopies of relevant material from the Bar
Association Libraries.
• The same would not hence, amount to infringement.
• On 11 May of 2012 in the case of Cambridge University Press v.
Becker it was decided by the United States District Court for the
northern district of Georgia, that university does not require a
license to photocopy below threshold value of 10%.
• The fact cannot be denied that India is quite behind in the aspect of
economic growth from other developed countries. There is a need
for bigger threshold value because of the higher theoretical studies
in the universities but even though there should be some specific
limitation in % of making copies of copyrighted stuff.
06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
• Aggrieved by the order of Single Judge the Publishers filed an
appeal to the Division Bench.
• On March 9, 2017 the Publishers withdrew the suit from the
Delhi High Court.
• In addition to withdrawing the case from the Delhi High Court,
the Publishers assured that they were not going to take up the
issue before any other higher court, such as the Supreme
Court of India.

06/03/25
 THE CHANCELLOR, MASTER AND SCHOLARS OF THE
UNIVERSITY OF OXFORD V. RAMESHWARI PHOTOCOPY
SERVICES (CONTD.)
i. The Publishers jointly made a public statement that-
"We continue to stand by our principles stated throughout this case. We
support and seek to enable equitable access to knowledge for students
and we understand and endorse the important role that course packs
play in the education of students. We support our authors in helping
them produce materials of the highest standard and we maintain that
copyright law plays an important part in balancing the interests of those
creating, curating, and disseminating learning materials with those
requiring access to them.
ii. "We look forward to working even more closely with academic
institutions, teachers and students to understand and address their
needs, while also ensuring that all those who contribute to and improve
India's education system—including authors and publishers—continue to
do so for the long term."

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.

• On December 14, 2004, Google stunned the library, literary,

technology, and copyright worlds, announcing it would start scanning
millions of books from the collections of leading research libraries to
create a comprehensive database of books that would be searchable
online.
• Initially, most of the libraries, including the New York Public Library
and Harvard University, limited their cooperation to books in the
public domain.
• But the University of Michigan and then some other libraries agreed
also to turn over copyrighted books to the program, which was then
called Google Print.
06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• Google’s goal was to amass an unrivaled digital library, using
these books to draw users to its website, strengthen its
dominance of the search-engine market, and increase its
advertising.
• The libraries, in turn, wanted to digitize their collections,
which they legally would not have been able to do
themselves, other than in certain circumscribed
circumstances.
• Libraries buy books, preserve them, and lend them to readers,
but when the books are in copyright, they may not make
copies unless an exception to copyright applies. Nor may a
private company, like Google.
06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• In September 2005, the Authors Guild and a group of
individual writers sued Google for copyright infringement. The
following month, the Association of American Publishers
(AAP) launched a lawsuit of its own.
• Google has now scanned some 20 million books, and it
displays what it calls “snippets”—short passages—from 4
million that are still in copyright.
• It has given digital copies to libraries as well, for their own
use, in payment for their cooperation.

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• Google argued that its book-search program (now called
Google Books) offers great public benefits and therefore the
copying should be protected under the legal doctrine of “fair
use.”
• The plaintiffs did not believe that private companies should be
able to make full digital copies of copyrighted books en-masse
for commercial purposes under the fair use doctrine—that is,
without compensating the rights holders.
• The authors, publishers, and Google sat down to reach a
compromise.
• After 30 months of talks, an agreement was reached in October
2008: Google would pay out $125 million.
06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• Some money would go to the owners of the books that were
scanned without permission; the rest would fund the Book
Rights Registry, an organization that would track down and
distribute fees to authors.
• Also, the settlement required Google to provide portals in
every public library and more than 4,000 colleges and
universities in the U.S., allowing widespread access.
• But to become effective, the settlement agreement needed
court approval, and many people raised objections.
• Harvard Library, one of the original contributing libraries to
Google Library, choosing to withdraw its partnership with
Google if "more reasonable terms" could not be found.
06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• As part of the $125 million settlement signed in October 2008,
Google created a Google Book Settlement web site that went
active on February 11, 2009. This site allowed authors and
other rights holders of out-of-print (but copyright) books to
submit a claim by June 5, 2010.
• In return they were to receive $60 per full book, or $5 to $15
for partial works.
• Google was to be able to index the books and display snippets
in search results, as well as up to 20% of each book in preview
mode.
• Also, to be able to show ads on these pages and make
available for sale digital versions of each book.
06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• Authors and copyright holders were to receive 63 percent of
all advertising and e-commerce revenues associated with
their works.
• After claiming a book, rights holders would also have the
ability to alter the default display settings.
• American author Ursula K. Le Guin launched a petition against
the settlement, which was signed by almost 300 authors.
• In November 2009, the parties amended the settlement
agreement.
• The amended agreement included several significant changes:

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• It limited the scope to foreign books that are registered with
the U.S. Copyright Office or published in the UK, Canada, or
Australia, added board members to the Books Rights Registry
from the UK, Canada, and Australia, gave the rights holder the
ability to renegotiate the revenue share, gave Google added
flexibility in discounting, created a fiduciary to hold payments
due to orphan works.
• If the rights holder is never ascertained, the funds are
distributed cy-près instead of redistributed among rights
holders, and increased the number of public licenses allowed
for a library.

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• Some favoured the settlement because they thought Google’s
copying should be protected; while others, including the Justice
Department, opposed it because they feared that Google would
gain a monopoly over digitized books. In March 2011, the court
rejected it.
• With a settlement apparently out of the picture, the parties set
about working on their cases. Google argued that its copying is
“fair use” because it serves a useful public purpose, and also
argued that it does not harm the market for the books. Author’s
Guild argued that, because Google is using authors’ copyrighted
works for commercial benefit, and because Google Books will
indeed harm the market for books, Google ought to have to pay
for its use of those works.

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• Google Books can create a very real negative economic impact on
the books it has digitized for two principal reasons. Rather than
drive researchers to buy books, readers for many books can find
all they need on Google Books. Further, if Google’s doing so is fair
use, then it sets a precedent allowing anyone to digitize books for
similar purposes, which inevitably will lead to widespread, free,
and unrestricted availability of books online.
• Judge Chin was persuaded by the argument that Google Books
provides great public utility, and in November 2013 he ruled in
favor of Google. He declared the program to be fair use because,
he found Google’s use to be “transformative”— he stated, “words
in books are being used in a way they have not been used before.”

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• He further added, “Even assuming Google’s principal motivation is
profit, the fact is that Google Books serves several important
educational purposes.”
• The decision of the District Court was appealed against in the United
States Court of Appeals for the Second Circuit, and it was argued
that the authors weren’t trying to shut down Google Books, rather,
they were seeking some damages for past infringements, and an
order that Google Books operate on a licensing basis going forward.
• While agreeing that Google Books is a good thing, but one for which
authors should be compensated, like other search databases such as
J-Stor, Westlaw, and Lexis/Nexis.
•

06/03/25
 AUTHORS GUILD V. GOOGLE, INC.
(CONTD.)
• In the Second Circuit, a unanimous three-judge panel found
fair use.
• On December 31, 2015, the Authors Guild filed a petition with
the Supreme Court of the United States requesting that it
review the Second Circuit’s decision. The Court hasn’t heard a
fair use case since 1994, and in the past 20-plus years of fair
use law.
• The Supreme Court declined to review the case.

06/03/25
 ORACLE V. GOOGLE
• At issue in Oracle v. Google was whether Oracle can claim a
copyright on Java APIs and, if so, whether Google infringes these
copyrights?
• When it implemented the Android OS, Google wrote its own
version of Java. But in order to allow developers to write their own
programs for Android, Google's implementation used the same
names, organization, and functionality as the Java APIs.
• APIs (Application Programming Interfaces) are, generally speaking,
specifications that allow programs to communicate with each
other. So when you read an article online, and click on the icon to
share that article via Twitter, for example, you are using a Twitter
API that the site’s developer got directly from Twitter.

06/03/25
 ORACLE V. GOOGLE
• The final decision came in the favour of Google.
• The court clearly understood that ruling otherwise would
have impermissibly—and dangerously—allowed Oracle to tie
up “a utilitarian and functional set of symbols,” which
provides the basis for so much of the innovation and
collaboration we all rely on today. Simply, where “there is only
one way to declare a given method functionality, [so that]
everyone using that function must write that specific line of
code in the same way,” that coding language cannot be
subject to copyright.
•

06/03/25