DECLARATION

I hereby declare that the research work embodied in this dissertation A Study on Copyright
Protection in India: An Analysis of Fair use under Copyright Law is carried out by me,
under the guidance and supervision.

Miss. Kanchan Rawat (Research Guide)

Mr. Ratnesh Srivastav (Co-Research Guide)

Place: Mohini Sharma

Date:

1
 CERTIFICATE

This is to certify that the desertation entitled A Study on Copyright Protection in India: An
Analysis of Fair use under Copyright Law submitted to Siddhartha Law College,
Dehradun by Mohini Sharma in partitial fulfillment of the requirement for the award of degree
of Masters Of Law (LLM) with specialization incorporate law is an independent original work,
prepare in under my guidance.
It is certified that desertation is fit for evaluation.

The conduct of researcher remained excellent during the period of research.

Place: (Signature of the guide)

Date:

2
 ACKNOWLEDGMENT

It is well-established fact that behind every achievement lays an unfathomable sea of gratitude to
those who have extended their support and without whom the dissertation would never have
come into existence.

I express my gratitude to Siddhartha Law College, Dehradun for providing me an opportunity

to work on this dissertation as a part of the curriculum.

I wish to express my sincere gratitude to my project guide Miss. Kanchan Rawat & Co. Guide
Mr. Ratnesh Srivastav under whose guidance the study was undertaken. Without his guidance
at each stage of the project study, the task could not have been accomplished.

Also I wish to thank all the respondents who gave me some of their valuable time to fill up the
questionnaires, without which the project study wouldnt have been a success.

Mohini Sharma

3
INTRODUCTION

Intellectual Property Rights are the legal rights that are granted to a person for any creative and
artistic work, for any invention or discovery, or for any literary work or words, phrases and
symbols or designs for a stipulated period of time. The owners of Intellectual Property are
granted certain exclusive rights through which they use their property without any disturbance
and can prevent the misuse of their property. Intellectual property is any innovation, commercial
or artistic, or any unique name, symbol, logo or design used commercially. In India, Intellectual
Property is governed under the Patents Act, 1970; Trademarks Act, 1999; Indian Copyright Act,
1957; Designs Act, 2001, etc.

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.1 It is a bundle of rights including,
inter alia, rights of reproduction, communication to the public, adaptation and translation of the
work. The only criterion to determine whether a person is entitled to copyright protection is
originality in expression.2

The term copyright is not defined under the Indian Copyright Act, 1957 (hereinafter referred to
as Copyright Act). The general connotation of the term copyright refers to the right to copy
which is available only to the author or the creator, as the case may be. Thus, any other person
who copies the original work would be amount to infringement under the Copyright Act.
Copyright ensures certain minimum safeguards of the rights of authors over their creations.
Creativity being the keystone of progress, no civilized society can afford to ignore the basic
requirement of encouraging the same. Economic and social development of a society is
dependent on creativity. The protection provided by copyright to the efforts of writers, artists,
designers, dramatists, musicians, architects and producers of sound recordings, cinematograph
films and computer software, creates an atmosphere conducive to creativity, which induces them
to create more and motivates others to create.3

1
Section 14 of the Copyrights Act, 1957
2
http://www.businessgyan.com/content/view/693/427/ as accessed on 25th May 2017 at 15:00 hrs
3
Section 51 of The Copyright Act, 1957

4
The copyright law therefore, to strike a balance between promoting innovativeness amongst the
creators and the interest of the general public has excluded a fair deal of works that is permitted
without specific permission of the copyright owners. In order to protect the interests of users,
some exemptions have been prescribed in respect of specific uses of works enjoying copyright
such as research or private study, criticism or review, reporting of events, judicial proceeding,
performance made before a non-paying audience etc.

Copyright may be acquired for almost all the visible things like script, photo, book, essay, films,
videos, architecture etc and also intangible things such as music. The most important criteria to
determine whether the said article is copyrightable or not, is based on its originality.4 Also
copyright can be only for things that are worth copying and not otherwise. For example, a baby
scribing in a pad cannot be copyrighted.

Copyright protects the expression and not the content or substance per se. For example, an
author writes about making of an aircraft. Here, the idea of making of the plane is not protected
but the only the way of expressing is protected. The idea is protected under the Patent law and
not under Copyright Act.

Copyright also does not protect the titles per se or the names, word or a set of words. But there
can be exceptions based on the facts and circumstances of each case. For example, the actor Shah
Rukh Khan has copyrights his name (SRK) and the music composer A.R. Rahman copyrighted
the title Jai Ho for the Oscar song which is currently under litigation. It is noteworthy to
mention here that the defendant can always take a stand of cancellation of copyright in any suit
unless he is estopped by any implied or express acceptance.

Copyright may also be granted for things that would come under patents, trademarks or designs.
As copyright protects only the expression and nothing more, it is not much preferred in practice
except in case of film industry. This will be dealt elaborately in forth coming topics.

4
Section 13 of the Indian Copyright Act,1957

5
Copyright is a right given by the law to the creators of literary, dramatic, musical and artistic
works and producers of cinematography 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.

Indian copyright law gives you various rights when it comes to protecting your property.
However, copyright does not protect ideas, information or concepts. So in order to manage your
intellectual property effectively and get the best out of it, you need to know exactly what is
covered by copyright, how you can use it to your advantage, and what you need to do further to
protect your intellectual property.

What exactly does copyright protect?

Indian copyright law provides you with exclusive rights to publish (digital or otherwise), control
who can copy or perform your original work, and control who can make derivative works and
attribution rights or authorize others to do so. Under the Indian Copyright Act, original literary,
dramatic, musical and artistic works are protected.

Intellectual property like original song lyrics, musical scores, academic articles, diagrams and
movie scripts are protected under copyright if they are published in India or where they are
unpublished or first published outside India, if the author is a citizen of India. Sound recordings
and cinematography are protected as long as the copyright of some other work is not infringed
while creating them. International material may also be protected by Indian Copyright Act. 5

So does what does original work mean?

In the case of Eastern Book Company & Ors vs. D.B. Modak & Ors,6 the Supreme Court of India
held that:

The word original does not mean that the work must be the expression of original or inventive
thought. For a work to be original, the work must not be copied from another work that it
should originate from the author.

5
http://laljitm.in/copy_right.php, as accessed on 26th May 2017, at 13:00 hours.
6
AIR 2008 SC 809

6
With regards to compilation, originality is a matter of degree depending on the amount of skill,
judgement or labour that has been involved in making the compilation.

Copyright exists in the expression of an idea, not the idea itself. Indian Copyright law does not
recognize property rights in abstract ideas. This means that until you express your idea in a
tangible form, you have no protection. When an idea is given embodiment in a tangible form it
becomes subject of common law property rights which are protected by the courts at least when
it can be said to be novel and new.

For example, if you were writing a business strategy or marketing plan, then the expression of
the idea in words and any associated diagrams can be protected by copyright. However,
copyright cannot prevent your competitor from implementing the idea in his business. Copyright
protects the aesthetics and not the functional. In India, copyright automatically protects the
expression from the time that it is created and no registration is required. However, copyright
registration has its own advantages.

RATIONALE OF COPYRIGHT PROTECTION

COPYRIGHT

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.

COPYRIGHT BE PROTECTED

Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity. Creativity being the keystone of progress, no
civilized society can afford to ignore the basic requirement of encouraging the same. Economic
and social development of a society is dependent on creativity. The protection provided by
copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and
producers of sound recordings, cinematograph films and computer software, creates an

7
atmosphere conducive to creativity, which induces them to create more and motivates others to
create.

Is it not true that strict application of the principle of protection of copyright hampers
economic and cultural development of the society?
Yes. If copyright protection is applied rigidly, it can hamper progress of the society. However,
copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is
maintained between the interests of the creators and of the community.

To strike an appropriate and viable balance between the rights of the copyright owners and the
interests of the society as a whole, there are exceptions in the law. Many types of exploitation of
work which are for social purposes such as education, religious ceremonies, and so on are
exempted from the operation of the rights granted in the Act. Copyright in a work is considered
as infringed only if a substantial part is made use of unauthorized. What is substantial varies
from case to case. More often than not, it is a matter of quality rather than quantity. For example,
if a lyricist copy a very catching phrase from another lyricists song, there is likely to be
infringement even if that phrase is very short.

Does the law allow any use of a work without permission of the owner of the copyright,
and, if so, which are they?

Subject to certain conditions, a fair deal for research, study, criticism, review and news reporting,
as well as use of works in library and schools and in the legislatures, is permitted without
specific permission of the copyright owners. In order to protect the interests of users, some
exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some
of the exemptions are the uses of the work

i. for the purpose of research or private study,

ii. for criticism or review,
iii. for reporting current events,
iv. in connection with judicial proceeding,
v. performance by an amateur club or society if the performance is
given to a non-paying audience, and

8
 vi. the making of sound recordings of literary, dramatic or musical
works under certain conditions.

HISTORICAL BACKGROUND COPYRIGHT LAW IN INDIA

The evolution of Copyright Law in India is spread over three phases. The law of copyright was
introduced in India during the reign of the British Rule in India via the British Copyright Act,
1911. This Act had very different provisions in comparison to todays law. The term of the
Copyright was life time of the author plus seven years after the death of the author. However the
total term of copyright cannot exceed the period of forty-two years. The government could grant
a compulsory licence to publish a book if the owner of copyright, upon the death of the author,
refused to allow its publication. Registration of Copyright with the Home Office was mandatory
for enforcement of rights under the Act.7 This was the first phase.

The second phase was in 1914, when the Indian legislature under the British Raj enacted the
Copyright Act of 1914. It was almost similar to the British Copyright Act of 1911. However the
major change that was brought in this Act was the criminal sanction for infringement. The 1914
Act was constantly amended a number of times. Subsequently, India saw the third phase of its
copyright law evolution in the introduction of the Indian Copyright Act, 1957 which was enacted
in order to suit the provisions of the Berne Convention. This Act was enacted by Independent
India and is the main Act by which we are governed till date.

Ownership
Generally, the creator or the author of the work is the owner of the work and therefore entitled to
get the copyright for the work. Where the author of the work is employed by another person, the
work belongs to the employer of the author. And where creation of the works is incidental, but
not the purpose, the work belongs to the authors. But in practice, out of the contractual
agreement between the employer and the employee, the creation during the course of
employment would be belonging to the employer.

7
British Copyright Act, 1911

9
There may be a situation where a particular final work involves many copyrightable sub-
divisions such as film wherein many works such as music, lyrics, dramatic works etc are
copyrightable. The authors in the creation of such work are many such as:
a. In the case of a musical work, the composer.
b. In the case of a cinematograph film, the producer.
c. In the case of a sound recording, the producer.
d. In the case of a photograph, the photographer.
e. In the case of a computer generated work, the person who causes the work to be created.
f. In the case of Script, the writer. Etc.

Where the work is made by the author in the course of his employment under a contract of
service or apprenticeship, for the purpose, the said employer shall, in the absence of any
agreement to the contrary, be the first owner of the copyright in the work in so far as the
copyright relates to the publication of the work, or to the reproduction of the work for the
purpose of its being so published, but in all other respects the author shall be the first owner of
the copyright in the work. For example, where the composer of the music copyrights his creation
and later provides the same to the film for some consideration, the work is still owned by the
author only.

Concept of Originality8
As per Section 13 of the Indian Copyright Act, copyright subsists in dramatic, artistic, musical
works as well as cinematographic films and sound recordings. The Copyright Act as such does
not define the term originality but the Indian courts have relied on various doctrines laid down
by the foreign courts.

The Privy Council, in the case Macmillan & Company Ltd. v. Cooper,9 approved the principle
laid down in University of London Press v. University Tutorial Press,10 which laid down that
copyright over a work arises and subsists in that work due to the skill and labour spent on that
work, rather than due to inventive thought. This is more popularly known as the sweat of the

8
Section 13 of the Indian Copyright Act, 1957
9
(1924) 26 BOMLR 292
10
[1916] 2 Ch 601

10
brow theory. It has been held that originality derives merely from the fact that sufficient labour,
skill, capital and effort (whether physical or otherwise) has been applied in the work. This sweat
of the brow theory was adopted in India, as evidenced from the Delhi High Court judgment in
the case of Burlington Home Shopping v. Rajnish Chibber,11 wherein it was held that a
compilation may be considered a copyrightable work by virtue of the fact that there was devotion
of time, labour and skill in creating the said compilation from many available works.
In the case of Feists Publication Vs Rural Telephone Services,12 the court introduced another
concept for determining originality namely minimum modicum of creativity wherein it has
been held that it must be independently created by the author and that it possesses at least some
minimal degree of creativity in it to make it eligible for attaining originality. As per the judgment
any independent creation with certain degree of creativity would be considered as original.

The Indian Supreme Court, in its landmark judgment of Eastern Book Company v. D.B.
Modak,13 departed from both these approaches and established the standard of originality that
fell midway between sweat of the brow and minimum modicum of creativity.

SCOPE OF PROTECTION IN THE COPYRIGHT ACT, 1957

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and
cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents,
copyright protects the expressions and not the ideas. There is no copyright in an idea.

Does copyright apply to titles and names?

Copyright does not ordinarily protect titles by themselves or names, short word combinations,
slogans, short phrases, methods, plots or factual information. Copyright does not protect ideas or
concepts. To get the protection of copyright a work must be original.

11
1995 IVAD Delhi 732
12
499 U.S. 340 (1991)
13
Supra, 6

11
The Statutory Nature of Copyright

It is fairly clear that "modern" copyright is a creation of statute, and in particular, the creation of
the 1709 Statute of Anne.14 Although there did exist proto-copyright mechanisms in various parts
of the world, it would appear that none of them were comparable to the form of copyright
contemplated by the 1709 statute.

The changes which have been observed over the last three hundred or so years in the realm of
copyright law have for the most part dealt with the nature of works protected, the nature of the
protection granted to copyrightable works, and the length of time for which protection would be
granted.

With respect to protectable works, it was only in 1735 that engravings began to be protected by
copyright, and in 1862 that photographs were accorded protection. In terms of the rights granted
to copyright owners, the scope of available protection under the law has increased considerably -
- for example, copyright owners in contemporary times enjoy a full translation right and a wide
right of adaptation among other rights such as the traditional reproduction right. And finally,
with respect to the term of copyright protection, the term has often been extended in various
jurisdictions with some even infamously considering extending the term of copyright protection
to a day less than forever.

Despite these changes in the copyright law, what has remained fairly constant is the
understanding that copyright is the creation of a statute. It is quite simply not a common law
right, and there are no natural rights "in the form of copyright", so to speak.

There have, over the years, of course been attempts to claim that copyright exists independently
of statute. In fact, the 1769 English case of Millar v. Taylor 15 recognised the existence of a
perpetual common law copyright, although (perhaps not too surprisingly) a Scottish Court of
Session disagreed. In 1773, it categorically held that Scotlands Common Law did not recognise

14
Also known as the Copyright Act 1710 is an act of the Parliament of Great Britain passed in 1710
15
(1769) 98 ER 201

12
copyright. A year later, the English House of Lords too rejected the existence of a perpetual
common law copyright in Donaldson v. Beckett.16

Nonetheless, the idea of copyright as a right independent of statute did not die and litigation on
the subject continued in various jurisdictions. In fact, the question was brought up in the first
copyright case before the Supreme Court of the United States in 1834 (which rejected the
existence of a common law copyright).

In addition to this, there have, over time, also been attempts to claim that there exist customary
rights which permit the copying of content protected by copyright in ways that copyright would
not. Arguments that custom allows copyright to be violated have, however, consistently failed. In
the 1814 case of Wyatt v. Barnard, Lord Eldon pointed out that custom could not control the law,
and said, in rather unflattering terms, of a defendant who had copied content protected by
copyright that the real defence set up by the Defendants is in fact a custom to steal, a practice
against morals, that neither on principle nor authority can be adduced as a defence. This did not
completely prevent the infringement of copyright in the nineteenth-century though. The expense
and investment required to generate their content often incentivised newspapers, for example, to
indulge in unauthorised copying, and they relied on the acquiescence of those they copied from,
along with nebulous notions of custom (which supposedly allowed copying), to protect them
from legal liability. Judges were scathing though, and in the 1892 case of Walter v. Steinkopff,
North, J went so far as to categorically state: The plea of the existence of such custom, or habit,
or practice of copying as is set up can no more be supported when challenged than the
highwayman's plea of the custom of Hounslow Heath. It has often been relied upon as a defence
in such cases, but always has been repudiated by the Courts.

As such, copyright may be considered to be, without doubt, a statutory right, which is
independent of both custom and common law. Nonetheless, there are arguments which support
the contention that copyright could be considered to be a non-statutory right. For example,
allusions could be made to the 1948 Universal Declaration of Human Rights which refers to
authors' moral and material rights. Although it makes no specific mention of copyright, it is

16
(1774) 2 Brown's Parl. Cases (2d ed.) 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257; 17 Cobbett's Parl.
Hist. 953 (1813)

13
likely that copyright could fall within the scope of the material rights of authors.
Despite this, statutes such as the Indian Copyright Act state:

No Copyright except as provided in this Act.

No person shall be entitled to copyright or any similar right in any work, whether published or
unpublished, otherwise than under and in accordance with the provisions of this Act or of any
other law for the time being in force but nothing in this section shall be construed as abrogating
any right or jurisdiction to restrain a breach of trust or confidence.

It is unclear what the rationale behind the inclusion of this provision was. At first glance, it
would appear that the provision was introduced into the statute so as to dispel any notions that
copyright could possibly be a non-statutory right, particularly in light of the heading of the
Section. Given the background of all the litigation which has taken place on the issue, it would
seem reasonable for legislators to desire to clarify the legal position (that copyright is a statutory
creation) through the language of the statute.

However, emphasising that copyright is a creation of statute does not by itself explain the
provisions in Section 16. One possible interpretation of the key terms in the Section is:
"any work" refers to both published and unpublished works considering the placement of
the commas in the provision. The mention of "published and unpublished works" is
merely intended to dispel doubts about whether different provisions would apply to
published and unpublished works, or whether Section 16 would, in its entirety, apply only
to one or the other.
"the provisions of this Act or of any other law for the time being in force" means any law
whether or not statutory.
"any similar right" means (a) any right which protects what could be a copyrightable
work, or (b) any right similar to copyright protecting a non-copyrightable work. In
relation to (a), photographs come to mind: they were not always considered
copyrightable, and even after being accorded copyright protection, not all photographs
were immediately considered to be eligible to be protected by copyright. In relation to

14
 (b), one could consider rights which are recognised by business practice but which are
not explicitly recognised by copyright law such as format rights.
As far as the so-called neighbouring rights are concerned, it may also be possible to argue
that "any similar right" does not include the performer's right as it is exercised in respect
of a performance which is not a work, although the term "any similar right" could include
the broadcast reproduction right as this latter right may be considered to be exercised in
respect of a work which is broadcast [except, possibly, in the case of live broadcasts]. In
consequence, it may be possible to legitimately argue that the performer's right is not
exclusively a statutory right.17
If these meanings and interpretations ascribed to the Section were valid, the Section would state
(prior to the coordinate conjunction "but"): "A person would only be entitled to protect works in
accordance the law." This is an amazingly broad (and inane) interpretation which perhaps defeats
the ostensible intention of incorporating the Section into the statute at all. Further, considering
how broad this interpretation of the provision is, it is unclear why it is required as it merely states
the obvious -- not to mention that if one were to consider the second part of the Section, it is
unclear how the first part of the Section could possibly be considered or interpreted to restrict
"any right or jurisdiction to restrain a breach of trust or confidence" in any manner.

As such, in order for the Section to have any value (beyond stating the obvious), it would be
necessary to limit the meaning of "any other law for the time being in force" to "any other
[statutory] law for the time being in force". This would satisfy (a) the ostensible historical need
for the Section, (b) the impression generated by the heading of the Section, and (c) the hope that
the Section would have "value" beyond stating the obvious. Further, interpreting the Section
such that "any other law" should be read as "any other [statutory] law" also provides value to the
second part of the Section since breaches of trust or confidence in India fall under the realm of
tort law, and not statutory law. Thus, in effect, the Section would, according to the second
interpretation, mean that statutory law cannot limit tort law or common law, for the purpose of
enforcing rights in works.

17
Section 16 of the Copyright Act, 1957

15
Thus, it appears that, considered as a whole, the Section states that rights must be derived from
statute but whether or not so derived, actions for breach of trust or confidence would not be
restrained. This is the only interpretation which allows for an action under tort law to be initiated
in respect of a creative work in instances of breach of trust or confidence. And, in fact, although
not clarified in case law, it would appear that this is the interpretation which courts follow, if one
were to draw inferences from the mechanisms to protect format rights in India.

Whether or not a work has been published does not appear to be especially relevant to Section
The crux of the issue appears to be that Section 16 intends to explain the possible alternative
mechanisms through which copyright and comparable rights may be protected. Unfortunately, in
doing so, the Section does not appear to be entirely clear.

Note on Neighbouring Rights:

Crucially, Section 16 of the Indian Copyright Act applies to works alone. The term work is
defined in Section 2(y) of the Act as meaning any of the following works, namely: (i) a literary,
dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording. The
definition is exhaustive, and not inclusive. Therefore, Section 2(y) of the Indian Copyright Act
lays down the paramaters of Section 16 of the same statute in the first instance, and clearly
demonstrates that Section 16 does not apply to anything which is not a work. In other words,
Section 16 of the Indian Copyright Act does not apply to ideas and facts or anything else which
does not constitute a work, and contracts relating to all such things would not be governed
exclusively by the Indian Copyright Act.

The scope of Section 16 of the Indian Copyright Act is also further limited by Section 39A of the
same statute. This latter Section belongs to the Chapter of the Act which deals with the so-called
neighbouring rights and enumerates which provisions of the statute that apply to copyright
would also apply, with necessary adaptations and modifications, to the neighbouring rights (i.e.
the performers right and the broadcast reproduction right). Section 16 is not included in this list
of provisions, and, as such, a bare reading of the text of the Indian Copyright Act indicates that
the scope of neighbouring rights is not limited by the Copyright Act, and that the statute does not
lay down limitations with regard to neighbouring rights.

16
If one were to analyse the neighbouring rights, it could be argued that the performers right
cannot possibly be limited by Section 16 of the Copyright Act being exercised, as it is, in respect
of performances, which, quite simply, are not works. (Section 16, as explicated earlier, applies
only to works.) With regard to the broadcast reproduction right, the situation may be more
nuanced with differentiations being made between broadcasts of recorded works (such as
cinematograph films and sound recordings) on one hand, and broadcasts of live broadcasts of
performances and other events on the other hand. While convoluted arguments may be employed
to argue that there is an indirect application of Section 16 of the Indian Copyright Act where
recorded works are broadcast, there is no indication in the statute that Section 16 of the Indian
Copyright Act applies to live broadcasts. Section 39A of the Indian Copyright Act, as mentioned
earlier, explicitly omits Section 16 from the list of Sections in the Indian Copyright Act which
apply to the performers right and the broadcast reproduction right.

When it comes to comes to Indian statutory law, there appears to be no ambiguity regarding the
preemption of claims not related to copyright in the text of the statute. The determinations of
High Courts have, unfortunately, not been entirely consistent with each other, and the issue has
not been conclusively determined by the Supreme Court of India.

APPLICATION IN INDIA

REPRODUCTION
The Copyright confers upon the assessee the sole right to reproduce the authored work. In other
words, no other person except the author shall make copies (one or many) of the work or copy
the substantial part of the work in any form including sound and film recording etc without the
permission of the copyright owner. For example, a person buys a film CD and the person makes
multiple copies of it and sells it to others. This would amount to copyright infringement.

COMMUNICATION

Communication to the public means making any work available to general public for the purpose
of being seen or heard or otherwise enjoyed by the public directly or by any means of display or

17
diffusion. It is not necessary that any member of the public actually sees, hears or otherwise
enjoys the work so made available. For example, a cable operator may transmit a cinematograph
film, which no member of the public might have seen. Still it is a communication to the public.
The fact that the work in question is accessible to the public is enough to say that the work is
communicated to the public.

ADAPTATION
Adaptation involves the preparation of a new work in the same or different form based upon an
already existing work. The Copyright Act defines the following acts as adaptations:

a. Conversion of a dramatic work into a non-dramatic work

b. Conversion of a literary or artistic work into a dramatic work
c. Re-arrangement of a literary or dramatic work
d. Depiction in a comic form or through pictures of a literary or
dramatic work
e. Transcription of a musical work or any act involving re-
arrangement or alteration of an existing work.

The making of a cinematograph film of a literary or dramatic or musical work is also an

adaptation.

Can any person translate a work without the permission of the owner of the copyright in
the work?

No. A person cannot translate a work enjoying copyright without the permission of the copyright
owner.

Is there any copyright over news?

No. There is no copyright over news. However, there is copyright over the way in which a news
item is reported.

For example, the book Five Point Someone written by Chetan Bhagat was made as a film
named 3 Idiots in Hindi. It is noted that the concept of the film alone was taken and not the

18
whole of its expression. Again, the remake of the film 3 idiots was done in Tamil in the name
of Nanban. Again here some alterations were made to suit the targeted audience and therefore,
only amounted to copying of idea and not the expression.

TRANSLATION
Similarly, the owner has the full and sole authority to translate the work done by him in one
language to one or many other languages. Any other person interested in doing so must get the
prior permission of the owner. For example, a film taken in English can be dubbed or remade
only by the owner or any other person with the consent of the owner.

Life of Right
Generally copyright lasts for Life + 60 years in India.

Work Life 60-year from the year following the death of the author. In
Original literary, dramatic, case of joint authorship, the date has reference to author
musical and artistic works who dies last.
Posthumous Work 60 years from the date of demise of the owner
Anonymous and 60 years from beginning of the calendar year following
pseudonymous publications the year of publication.
Photographs 60 years from the beginning of the calendar year next
following the year in which the photograph is published
Work of Government, Public 60 years from the year next to the year of
undertaking and

WORK

A work means any of the following , namely, a literary, dramatic, musical or artistic work, a
cinematograph film, or a sound recording.

19
Joint Authorship

"Work of joint authorship" means a work produced by the collaboration of two or more authors
in which the contribution of one author is not distinct from the contribution of the other author or
authors.

What are the classes of works for which copyrights protection is available in India?

Copyright subsists throughout India in the following classes of works:

o Original literary, dramatic, musical and artistic works;

o Cinematograph films; and

o Sound recordings.

Artistic Work

An artistic work means-

o a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an

engraving or a photograph, whether or not any such work possesses artistic
quality;

o a work of architecture; and

o any other work of artistic craftsmanship.

Musical Work

"Musical work" means a work consisting of music and includes any graphical notation of such
work but does not include any words or any action intended to be sung, spoken or performed
with the music. A musical work need not be written down to enjoy copyright protection.

20
Sound Recording

"Sound recording" means a recording of sounds from which sounds may be produced regardless
of the medium on which such recording is made or the method by which the sounds are
produced. A phonogram and a CD-ROM are sound recordings.

Cinematograph Film

"Cinematograph film" means any work of visual recording on any medium produced through a
process from which a moving image may be produced by any means and includes a 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.

Government Work

"Government work" means a work which is made or published by or under the direction or
control of

o the government or any department of the government

o any legislature in India, and

o any court, tribunal or other judicial authority in India.

Indian Work

"Indian work" means a literary, dramatic or musical work,

o the author of which is a citizen of India; or

o which is first published in India; or

o the author of which, in the case of an unpublished work is, at the time of the
making of the work, a citizen of India.

21
Foreign Works

Copyright of foreign works protected in India

Copyrights of works of the countries mentioned in the International Copyright Order are
protected in India, as if such works are Indian works.

Copyright subsist in a foreign work

Copyright of nationals of countries who are members of the Berne Convention for the Protection
of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are
protected in India through the International Copyright Order.

DIFFERENT RIGHTS18

Are copyrights same for all classes of works?

No. The rights vary according to the class of work.

What are the rights in the case of a literary work?

In the case of a literary work (except computer programme), copyright means the exclusive right

To reproduce the work

To issue copies of the work to the public

To perform the work in public
To communicate the work to the public.
To make cinematograph film or sound recording in respect of the work
To make any translation of the work
To make any adaptation of the work.

18
http://www.copyright.gov.in/Documents/handbook.html

22
Is translation of an original work also protected by copyright?

Yes. All the rights of the original work apply to a translation also.

Are computer programmes protected under Copyright Act?

Yes. Computer programmes are protected under the Copyright Act. They are treated as literary
works.

Special Rights In Computer Programmes

Yes. In addition to all the rights applicable to a literary work, owner of the copyright in a
computer programme enjoys the rights to sell or give on hire or offer for sale or hire, regardless
of whether such a copy has been sold or given on hire on earlier occasion.

THE RIGHTS IN A DRAMATIC WORK

In the case of a dramatic work, copyright means the exclusive right

o To reproduce the work

o To communicate the work to the public or perform the work in public
o To issue copies of the work to the public
o To include the work in any cinematograph film
o To make any adaptation of the work
o To make translation of the work.

THE RIGHTS IN AN ARTISTIC WORK

In the case of an artistic work, copyright means the exclusive right

o To reproduce the work

o To communicate the work to the public
o To issue copies of the work to the public
o To include the work in any cinematograph film
o To make any adaptation of the work.

23
THE RIGHTS IN A MUSICAL WORK

In the case of a musical work, copyright means the exclusive right

o To reproduce the work

o To issue copies of the work to the public
o To perform the work in public
o To communicate the work to the public
o To make cinematograph film or sound recording in respect of the work
o To make any translation of the work
o To make any adaptation of the work.

THE RIGHTS IN A CINEMATOGRAPH FILM

In the case of a cinematograph film, copyright means the exclusive right

o To make a copy of the film including a photograph of any image forming part
thereof
o To sell or give on hire or offer for sale or hire a copy of the film
o To communicate the cinematograph film to the public.

THE RIGHTS IN A SOUND RECORDING

o To make any other sound recording embodying it

o To sell or give on hire, or offer for sale or hire, any copy of the sound recording
o To communicate the sound recording to the public.

THE RIGHT OF REPRODUCTION

The right of reproduction commonly means that no person shall make one or more copies of a
work or of a substantial part of it in any material form including sound and film recording
without the permission of the copyright owner. The most common kind of reproduction is
printing an edition of a work. Reproduction occurs in storing of a work in the computer memory.

24
RIGHT OF COMMUNICATION TO THE PUBLIC

Communication to the public means making any work available for being seen or heard or
otherwise enjoyed by the public directly or by any means of display or diffusion. It is not
necessary that any member of the public actually sees, hears or otherwise enjoys the work so
made available. For example, a cable operator may transmit a cinematograph film, which no
member of the public may see. Still it is a communication to the public. The fact that the work in
question is accessible to the public is enough to say that the work is communicated to the
public.19

PERFORMERS RIGHTS20

Performer

As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who
makes a performance.

Performance

"Performance" in relation to performers right, means any visual or acoustic presentation made
live by one or more performers.

The Rights Of A Performer

A performer has the following rights in his/her performance:

Right to make a sound recording or visual recording of the performance;

Right to reproduce the sound recording or visual recording of the performance;

Right to broadcast the performance;

19
Ibid
20
Ibid.

25
 Right to communicate the performance to the public otherwise than by broadcast.

PROTECTION OF PERFORMERS RIGHTS

Performers rights subsist for 25 years.

Rights of A Performer In A Cinematograph Film

Once a performer has consented for incorporation of his performance in a cinematograph film,
he shall have no more performers rights to that performance.

BROADCASTERS RIGHTS

Broadcast

"Broadcast" means communication to the public:

by any means of wireless diffusion, whether in any one or more of the forms of signs,
sounds or visual images; or

by wire.

The Rights Of a broadcasting organization

The rights of a broadcasting organization with reference to a broadcast are :

right to re-broadcast the broadcast;

right to cause the broadcast to be heard or seen by the public on payment of any charges;

right to make any sound recording or visual recording of the broadcast;

right to make any reproduction of such sound recording or visual recording where such
initial recording was done without licence or, where it was licensed, for any purpose not
envisaged by such licence; and

26
 right to sell or hire to the public, or offer for such sale or hire, any sound recording or
visual recording of the broadcast.

REGISTRATION OF COPYRIGHT

Necessary To Register A Work To Claim Copyright

No. Acquisition of copyright is automatic and it does not require any formality. However,
certificate of registration of copyright and the entries made therein serve as prima facie evidence
in a court of law with reference to dispute relating to ownership of copyright.

PROCEDURE FOR REGISTRATION

Copyright comes into existence as soon as a work is created and no formality is required to be
completed for acquiring copyright. However, facilities exist for having the work registered in the
Register of Copyrights maintained in the Copyright Office of the Department of Education. The
entries made in the Register of Copyrights serve as prima-facie evidence in the court of law. The
Copyright Office has been set up to provide registration facilities to all types of works and is
headed by a Registrar of Copyrights and is located at B.2/W.3, C.R. Barracks, Kasturba Gandhi
Marg, New Delhi- 110 003, Tel: 338 4387

THE GUIDELINES REGARDING REGISTRATION OF A WORK

Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration
of a work. Copies of the Act and Rules can be obtained from the Manager of Publications,
Publication Branch, Civil Lines, Delhi or his authorised dealers on payment. The procedure for
registration is as follows:

a. Application for registration is to be made on Form IV ( Including Statement of Particulars

and Statement of Further Particulars) as prescribed in the first schedule to the Rules ;
b. Separate applications should be made for registration of each work;
c. Each application should be accompanied by the requisite fee prescribed in the second
schedule to the Rules ; and

27
 d. The applications should be signed by the applicant or the advocate in whose favour a
Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by
the party and accepted by the advocate should also be enclosed.21

Each and every column of the Statement of Particulars and Statement of Further Particulars
should be replied specifically.

Both published and unpublished works can be registered. Copyright in works published before
21stJanuary, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered,
provided the works still enjoy copyright. Three copies of published work may be sent along with
the application. If the work to be registered is unpublished, a copy of the manuscript has to be
sent along with the application for affixing the stamp of the Copyright Office in proof of the
work having been registered. In case two copies of the manuscript are sent, one copy of the same
duly stamped will be returned, while the other will be retained, as far as possible, in the
Copyright Office for record and will be kept confidential. It would also be open to the applicant
to send only extracts from the unpublished work instead of the whole manuscript and ask for the
return of the extracts after being stamped with the seal of the Copyright Office.

When a work has been registered as unpublished and subsequently it is published, the applicant
may apply for changes in particulars entered in the Register of Copyright in Form V with
prescribed fee.

INFRINGEMENT
Bring proportionality back to copyright penalties

Over the last three decades, Congress has repeatedly increased the penalties for copyright
infringement. As a result, copyright infringement is now punishable by as much as $150,000 per
work.

These disproportionate penalties have had devastating consequences for both individuals and
businesses. A decade ago, the threat of having to pay as much as $150,000 per work forced

21
Chapter VI of the Copyright Rules, 1956

28
the pioneering locker service to settle its lawsuit with major labels before it had a chance to
appeal.

Single mother Jammie Thomas-Rasset has been fighting six-figure penalties for close to a decade
in one of the few file-sharing cases to make it into a courtroom. She is accused of sharing just 24
songs, which have a retail value of around $24.

And the threat of astronomical damages has been a potent weapon in the hands of copyright
trolls like Prenda Law. Prenda's Paul Duffy pointed to the $222,000 verdict against Thomas-
Rasset as a cautionary tale in his communications with alleged infringers.

Penalties for copyright infringement are appropriate, but the punishment should fit the crime.
The current penalties are at least an order of magnitude too large.

Rein in asset forfeiture in copyright cases

In January 2012, the federal government froze the worldwide assets of file-sharing site
Megaupload and its founder, Kim Dotcom. The operation was made possible by the 2008 PRO-
IP Act, which for the first time gave the government broad authority to use the power of civil
asset forfeiture in copyright cases.

The seizures amounted to a corporate death sentence for Megaupload. With no cash, the firm
was forced to lay off its employees. Legitimate users who relied on the service suddenly lost
access to their data with no recourse.

Dotcom hasn't been the only target of copyright-related asset seizures. In 2010, the government
seized a hip-hop blog called Dajaz1, holding it for almost a year before finally returning it.
Evidently, the government didn't have a case against its owner.

Dajaz1 was just one of hundreds of domain names seized by the government over the last three
years as part of "Operation In Our Sites." While many of these sites do appear to have been
engaged in illegal activities, it's troubling that the government has the power to shut them down
before their owners have any opportunity to defend themselves.

Mega upload may be guilty of copyright infringement, but the firm should have had its day in
court before having its assets seized and its site shut down. The operator of Dajaz1 should have
had a chance to respond to the government's accusations before losing control of his site.

29
Pre-conviction asset seizures may be appropriate in conventional piracy cases where, for
example, the government finds a warehouse full of pirated DVDs. But the tactic is simply too
crude a weapon to use against websites and online services.

Reform the Digital Millennium Copyright Act22

Modern music software such as iTunes has long included a feature to rip your CD collection onto
your computer. Yet almost two decades after DVDs were introduced, legal software to rip them
is not available.

The difference is the Digital Millennium Copyright Act, which Congress passed in 1998. It
criminalizes circumvention of copy protection schemes like the Content Scrambling System
found on DVDs. The result has been stunted progress in digital media technologies. Firms that
have tried to develop innovative technology related to the DVD without the permission of the
DVD cartel have faced ruinous lawsuits.

Even worse, the DMCA has been wielded to limit user freedom in areas that have no plausible
connection to piracy. In 2012, the Librarian of Congress sparked outrage when it changed
DMCA-related regulations to effectively make it illegal to unlock a cell phone in order to take it
to another carrier. In another case, Blizzard used the DMCA to shut down the use of a World of
Warcraft bot.

Recently, some members of Congress have proposed narrow legislation to legalize cell phone
unlocking. But the deeper problem is the DMCA's anti-circumvention rule itself. Congress
should narrow the DMCA's restrictions on circumvention, and should consider repealing the
provisions altogether.

Reduce copyright terms

America's original copyright system granted authors 14 years of protection with the option to
renew for an additional 14 years. By the mid-20th Century, that had been expanded to a 28-year
initial term and another 28 years after renewal. But since 1976, we've been in an era of perpetual
copyrights. Congress added 20 years to older works and changed the term for new works to the

22
U.S. Copyright Act, 1998

30
life of the author plus 50 years. In 1998, Congress retroactively extended copyright terms by
another 20 years.

As a result, the public domain has been practically frozen for forty years. If a work was under
copyright in 1978, it will probably still be under copyright in 2018.

It's a virtual certainty that major copyright holders will seek yet another extension of copyright
terms before 2018. Congress should not only refuse to grant another extension, but it should
consider reducing the terms already in effect. Copyright protections that last more than a century
are far more than are necessary to accomplish copyright's function of encouraging creativity.

Create a mandatory database of copyrighted works

For most of the 20th century, getting copyright protection for a work required marking it with a
copyright notice and registering it with the Library of Congress. Authors also had to renew their
works after 28 years in order to keep copyright protection.

But starting in 1976, Congress eliminated these requirements, known as "formalities." Today,
almost everything you writeyour emails, your diary, and sketches you draw on cocktail
napkinsare copyrighted, whether you want them to be or not. And that protection could last for
more than a century with no renewal requirement.

The result has been a huge "orphan works" problem. Thousands of books, films, and other works
created in the mid-20th Century are deteriorating on our library shelves. Digitization and
republication could give these works a second lease on life, but doing so is legally hazardous
because no one can figure out who holds the copyrights. The problem will only get worse as
works published after 1978 start to show their age. These works may not even have a copyright
notice to identify their authors.

One argument for eliminating the registration and renewal requirements was that they created too
much of a burden for authors. But registration need not be burdensome in the age of the Internet.
Registration could be done online and the Librarian of Congress could charge a nominal fee such
as $1. Renewal could be as simple as logging into the Librarian of Congress's website and
updating an author's contact informationthe Librarian of Congress could even send out helpful
e-mail reminders when a work comes up for renewal.

31
Congress should once again require registration as a pre-condition of copyright protection and
periodic renewal to keep copyright protection in effect. That would allow the Library of
Congress to build a national database of copyrighted works. People who wanted to use older
works would either be able to use the database to identify a work's owners, or to verify that the
work has fallen into the public domain and was free for anyone to copy.

COPYRIGHT INFRINGEMENTS

The following are some of the commonly known acts involving infringement of copyright:

i. Making infringing copies for sale or hire or selling or letting them

for hire;
ii. Permitting any place for the performance of works in public where
such performance constitutes infringement of copyright;
iii. Distributing infringing copies for the purpose of trade or to such an
extent so as to affect prejudicially the interest of the owner of
copyright ;
iv. Public exhibition of infringing copies by way of trade; and
v. Importation of infringing copies into India.

the owner of an auditorium or a hall any liability while renting out the place for
communication to the public of a copyrighted work

If a person permits for profit any place to be used for the communication of a work to the public,
where such communication constitutes an infringement of the copyright in the work, unless he
was not aware and had no reasonable ground for believing that such communication to the public
would be an infringement of copyright, he will be deemed to have committed an offence under
the Copyright Act.

32
REMEDIES UNDER COPYRIGHT

CIVIL REMEDIES FOR COPYRIGHT INFRINGEMENT

A copyright owner can take legal action against any person who infringes the copyright in the
work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

The Court Having Jurisdiction Over Civil Remedies In Copyright Cases

The District Court concerned has the jurisdiction in civil suits regarding copyright infringement.

Proof of the authorship of a work

Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that
of the author or the publisher appears on copies of the work as published, or, in the case of an
artistic work appeared on the work where it was made, the person whose name so appears or
appeared shall, in any proceeding in respect of copyright in such work, be presumed, unless the
contrary is proved, to be the author or the publisher of the work, as the case may be.

The Rights Of owner over infringing copies and equipments used for making infringing
copies

All infringing copies of any work in which copyright subsists and all plates used or intended to
be used for the production of such infringing copies shall be deemed to be the property of the
owner of the copyright.

REMEDIES IN THE CASE OF GROUNDLESS THREAT TO LEGAL PROCEEDINGS

Where any person claiming to be the owner of copyright in any work, by circulars,
advertisements or otherwise, threatens any other person with any legal proceedings or liability in
respect of an alleged infringement of copyright, any person aggrieved thereby may institute a
declaratory suit that the alleged infringement to which the threats related was not in fact an
infringement of any legal rights of the person making such threats and may in any such suit

33
 a. obtain an injunction against the continuance of such threats; and
b. recover such damages, if any, as he has sustained by reason of such threats.

Is copyright infringement a criminal offence

Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work
commits criminal offence under Section 63 of the Copyright Act.23

THE PUNISHMENTS FOR A CRIMINAL OFFENCE UNDER THE COPYRIGHT LAW

The minimum punishment for infringement of copyright is imprisonment for six months with the
minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum
punishment is imprisonment for one year and fine of Rs. one lakh.

Copyright Infringement a cognizable offence

Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in
respect of the infringement of copyright in any work has been, is being, or is likely to be
committed, seize without warrant, all copies of the work and all plates used for the purpose of
making infringing copies of the work, wherever found, and all copies and plates so seized shall,
as soon as practicable be produced before a magistrate.

Responsible For Copyright offence committed by a company24

Every person who at the time the offence was committed was in charge of, and was responsible
to the company for, the conduct of the business of the company, as well as the company shall be
deemed to be guilty of such offence and shall be liable to be proceeded against.

Police Officer Seize Infringing Goods without warrant

Yes. A police officer not below the rank of sub inspector can seize without warrant all infringing
copies of the work.

23
Section 63 of the Copyright Act,1957
24
Supra, 18

34
COMPARATIVIVE STUDY

COMPARISION BETWEEN US & CHINA25

China and the U.S. have signed the Berne Convention and the Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS Agreement). These two agreements set minimum
standards for copyright regulation. Under these agreements, creators are granted automatic
rights to any work they produce. Consequently, the creators receive copyright protection without
the need of registering their works. Moreover, the agreements state that all works except
photographic and cinematographic shall be copyrighted for at least 50 years after the authors
death, but parties are free to provide longer terms.

While the copyright laws of China and the U.S. conform to the abovementioned provisions, the
enforcement of the copyright laws in these countries differ in two aspects, namely, the use of
administrative protection (Section 2) and the strictness of the enforcement of the copyright laws
(Section 3).

The use of administrative protection

In the U.S., a legal relief for a copyright infringement can be obtained only through judicial
proceedings. In contrast, the laws of China allow the Chinese government to punish serious
infringements of copyright that do not rise to the level of a crime. In this regard, it should be
noted that the Chinese government has the right to impose fines, confiscate infringing products
and illicit income, and destruct the infringing products.

Actually, according to Chinas 2007 White Paper on IPRs, the majority of copyright cases are
resolved in an administrative way. To be specific, 10,344 out of 10,559 cases concerning
intellectual property rights were concluded by administrative authorities at all levels across the
country; 8,524 of the concluded cases were concluded with administrative punishment decisions,
1,585 were concluded with mediation arrangements, and 235 were transferred to judicial
authorities. It is worth mentioning that cyberspace is currently the main domain where copyright

25
http://resources.infosecinstitute.com/copyright-enforcement-the-u-s-and-china/

35
violations occur in China. Below, an example of administrative enforcement of copyrights in the
field of cyberspace is provided.

In April 2006, Autodesk, a leading U.S. design and media software company, submitted a
complaint to Jiangsu Province Copyright Bureau (JSPCB) against Viscount Industries (Kunshan)
Ltd. (Viscount Industries). Autodesk wrote in the complaint that several of Viscount Industries
computers used Autodesk software without authorization. Subsequently, the JSPCB inspected
Viscount Industries and discovered that four computers owned by Viscount Industries
Department for Research and Development had downloaded and installed pirated Autodesk
software. In December 2007, the JSPCB fined Viscount Industries RMB 800,000. The fine was
based on the value of the infringing software. Moreover, JSPCB ordered Viscount Industries to
remove the Autodesk software from the four computers immediately. At the time of the
imposition, the fine was the biggest fine regarding copyright infringement. The case marked a
unique milestone in the fight against software piracy.

The strictness of the enforcement of the copyright laws

Despite cases such as Autodesk vs. Viscount Industries,26 China enforces its copyright laws less
strictly than the U.S. A clear indicator of the weak enforcement of copyright laws in China is a
report published by the International Intellectual Property Alliance. The report found that 90
percent of the DVDs distributed in China are unauthorized copies. In this regard, it should be
also noted that the U.S. trade representative, responsible for developing and coordinating U.S.
international trade, commodity, and direct investment policy, and overseeing negotiations with
other countries, stated in relation to Chinas inclusion in the Priority Watch List in 2009:

While the Chinese Government continues to provide increased attention to the IPR
environment, the shared goal of significantly reducing IPR infringement throughout China has
not yet been achieved. Chinas IPR enforcement regime remains largely ineffective and non-
deterrent.

26
(2006) 24 FCR 147

36
A significant difference in the copyright laws of China and the U.S. is that China does not
criminalize copyright infringement conducted without the intent of gaining profit. For example, a
person buying a software product in China and distributing it to all his friends will not go to jail.
In contrast, the American courts may impose criminal punishments on copyright infringers
acting without the intent of gaining monetary profit. In such cases, the Courts will apply the No
Electronic Theft Act (the NET Act).

The NET Act is a federal law passed in 1997 providing for criminal prosecution of individuals
engaged in copyright infringement under certain circumstances, even when the infringer acted
without the intent of gaining monetary profit. Under the NET Act, the maximum penalties can be
five years in prison and up 250, 000 USD in fines. The first publicized judgment against an
individual under the NET Act was reported by the U.S. Justice Department in 1999. In that case,
an Oregon student pleaded guilty to illegally posting software, musical recordings, and digitally
recorded movies on his Web site.

Chinas problems in relation to the copyright enforcement are caused by three categories of
factors, namely, (1) cultural factors, (2) social factors, and (3) legal factors. Below, these three
categories are discussed in more detail.

Cultural factors
One of the reasons for the weak enforcement of copyright laws in China is that many Chinese
people do not believe that copying is wrong. As Anna Han, an expert in Chinese law stated, The
greatest compliment that a Chinese artist can receive is having someone copy their work. In this
context, Anna Han noticed that many foreign copyrighted works were reprinted and sold for
profit. She noticed that in some cases even the words [a]ll rights reserved had also been
reprinted.

It is worth mentioning that the Chinese government sponsors the search engine Baidu which
provides links to third-party websites offering counterfeited intellectual property goods. The
Chinese government dominates 70% of the revenue received by Baidu.

37
Baidu offers various services, including a search engine for audio files, websites, and images.
It garners nearly 9 billion hits per month. Baidu was established in 2000 by Robin Li and Eric
Xu, Chinese nationals who studied abroad. During the second quarter of 2010, more than 50
percent of the search queries in China were made through Baidu. In 2007, Baidu became the first
Chinese company to be added to the NASDAQ-100 index.

Baidu has been recently under legal attack of copyright holders. In particular, in September
2012, a Beijing court awarded seven Chinese authors, including the blogger Han Han, who is
widely known in China, damages against Baidu for copyright infringement. The court found that,
by publishing copies of the plaintiffs works without authorization, Baidus literature searching
service violated the intellectual property rights of the plaintiffs. Therefore, the court ordered
damages amounting to RMB 145,000 (USD 22,937) to be provided to the seven authors.

Social factors
Social factors that contribute to the weak enforcement include
(1) The longstanding practice in China of not deterring copyright infringements and
(2) Corruption of public officials.

In regard to the practice of not deterring copyright infringements, it should be noted that Chinese
people regard litigation as bad conduct. That is why the integrity, authority, and enforcement of
the copyright law may remain problematic for a long time.

Pertaining to the corruption, it should be noted that the low salaries of the public officials make
them more susceptible to bribes. Moreover, the parties may use the Guanxi to unduly influence
or bribe the judge for a favorable result. Guanxi refers to a network of contacts that an individual
can call upon when he or she needs something done. The importance of Guanxi in China should
not be underestimated. Often, the right Guanxi makes all the difference in ensuring that a
business venture will be successful. For a company, having the right Guanxi significantly
reduces the disappointments and frustrations when conducting business in China. Guanxi does
not have to be based on money. It is legal in China and not regarded as bribery in any way. So
persons using it do not have to feel uncomfortable about it.

38
Legal factors
As discussed above, the Chinese copyright law does not provide for criminal penalties against
copyright infringers who act without intention of profit. This lack of criminal penalties
significantly reduces the effectiveness of copyright protection because there is no true deterrent
for the majority of the people.

INTERNATIONAL COPYRIGHT TREATIES

Several international treaties encourage reasonably coherent protection of copyright from

country to country. They set minimum standards of protection which each signatory country then
implements within the bounds of its own copyright law.

Berne Convention

Oldest and most important treaty

Signed in 1886 (but has been revised many times since)

Ratified by nearly 180

Establishes minimum standards of protection

o Types of works protected
o Duration of protection
o Scope of exceptions
o Limitations
o Principles such as national treatment (works originating in one signatory
country are given the same protection in the other signatory countries as each
grants to works of its own nationals)
o Principles such as automatic protection (copyright inheres automatically in a
qualifying work upon its fixation in a tangible medium and without any required
prior formality).

39
LIST OF COUNTRIES INCLUDED IN THE INTERNATIONAL COPYRIGHT ORDER,
1999

I. Berne Convention Countries which have ratified/accepted/acceded to the 1971

Text of the Convention

Albania, Argentina, Australia, Austria, Bahamas, Bahrain, Barbados, Belarus, Benin,

Bolivia, Bosnia & Herzogovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cameroon, Cape
Verde, Central African Republic, Chile, China, Colombia, Congo, Costa Rica , Cote dIvoire,
Croatia , Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark,
Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Finland,
France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-
Bissau, Guyana, Haiti, Holy See, Honduras ,Hungary, Iceland, Indonesia, Italy, Jamaica,
Japan, Kenya, Latvia, Lesotho, Liberia, Libya, Lithuania , Luxembourg, Malawi, Malaysia,
Mali, Malta, Mauritania, Mauritius, Mexico, Monaco, Mongolia, Morocco, Namibia,
Netherlands, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal,
Republic of Korea, Republic of Moldova, Russian Federation, Rwanda, Saint Kitts & Nevis,
Saint Lucia, Saint Vincent and the Grenadines, Senegal, Slovakia, Slovenia, South Africa,
Spain, Sri Lanka, Suriname ,Sweden, Switzerland, Thailand, The Former Yugoslavia
Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United
Kingdom, United Republic of Tanzania, United States of America, Uruguay, Venezuela,
Yugoslavia, Zambia, Zimbabwe (Total - 116 Countries).

WIPO Copyright Treaty

Signed in 1996

Makes clear that computer programs and databases are protected by copyright

Recognizes that the transmission of works over the Internet and similar networks is an
exclusive right within the scope of copyright, originally held by the creator.

Categorizes as copyright infringements both

o The circumvention of technological protection measures attached to works
40
 o The removal from a work of embedded rights management information.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

Signed in 1996

Signed in 1996

Administered by the World Trade Organization

Includes a number of provisions related to the enforcement of IP rights.

Says that national laws have to make the effective enforcement of IP rights possible,
and describes in detail how enforcement should be addressed.

Copyright regulations in Europe

Efforts in the European Union to harmonize copyright law have resulted in a number of
regulations, including the 2001 Directive on Copyright in the Information Society.

The Directive on the harmonisation of certain aspects of copyright and related rights in the
information society (2001/29/EC) had two main objectives

To reflect technological developments in copyright law in Europe

To transpose into the law of all the EU countries the provisions in the two WIPO treaties
of 1996.

The Directive harmonized across European Union Member States:

the rights of reproduction

distribution and communication to the public

legal protection of technical protection measures and rights management systems.

It also included an exhaustive list of limitations and exceptions to copyright, most of which
optional for the Member States to implement in their national laws. A later study by the
Institute for Information Law (Univ. of Amsterdam) concluded that those options provided to the
Member States had substantially interfered with harmonization.

41
Another important piece of European legislation is the 2004 Directive on Enforcement of
Intellectual Property Rights, which was followed by the creation in 2009, of the European
Observatory on Counterfeiting and Piracy.

The Berne Convention provides that, at a minimum, copyright protection in all signatory
countries should extend to literary and artistic works, including every production in the
literary, scientific and artistic domain, whatever may be the mode or form of its expression.

The detailed list of categories of works that are protected by copyright and the specific
definition and scope of each of them may slightly vary from country to country, but it
generally includes scientific articles, essays, novels, short stories, poems, plays and other literary
works; drawings, paintings, photographs, sculptures and other two- and three-dimensional pieces
of art; films and other audiovisual works; musical compositions; software and others.

The International Copyright Conventions Of Which India Is A Member

Copyright as provided by the Indian Copyright Act is valid only within the borders of the
country. To secure protection to Indian works in foreign countries, India has become a member
of the following international conventions on copyright and neighbouring (related) rights:

i. Berne Convention for the Protection of Literary and Artistic works.

ii. Universal Copyright Convention.
iii. Convention for the Protection of Producers of Phonograms against
Unauthorised Duplication of their Phonograms.
iv. Multilateral Convention for the Avoidance of Double Taxation of
Copyright Royalties.
v. Trade Related Aspects of Intellectual Property Rights (TRIPS)
Agreement.

Different types of rights

Most national copyright laws recognize two different types of rights within copyright:

Economic rights

42
 Moral rights

Countries in the Anglo-American tradition, including the United Kingdom, the United States,
Canada, Australia and New Zealand, tend to minimize the existence of moral rights in favor of
an emphasis on economic rights in copyright.

ECONOMIC RIGHTS

Rights Relating to Reproduction and Distribution of a Work

The heart of copyright law is the right to make copies of a protected work. This is called
the "right of reproduction." The copyright holder has the exclusive right to make or authorize
such copies. Creating a copy without the authorization of the holder infringes upon the copyright,
unless permitted by an exception to or limitation on the reproduction right. The right of
reproduction is widely acknowledged by international agreements. As we will soon discuss,
however, those same agreements also empower member countries to create exceptions and
limitations to this (and other) rights. The copyright statutes of virtually all countries recognize
the right of reproduction.

What does "reproduction" mean? Most obviously, it includes making a copy in the literal sense --
for example, by photocopying a book or article. It also includes converting a copyrighted work
into a new format -- such as using a tape recorder to copy a vinyl album. Less obviously, it
includes making a new work that is "substantially similar" to an existing work, while having that
existing work in mind. So, for example, an art student who stands in front of a painting and
paints a faithful replica of it would violate the original painter's right of reproduction (unless the
student could invoke one of the exceptions or limitations discussed previously). As one might
imagine, the question of how close one work must be to another to be "substantially similar" is
highly controversial and is often litigated.

Closely related to the right of reproduction is the right of adaptation, which provides copyright
holders with the right to adapt a copyrighted work from one form of expression to another, or to
authorize another to do so. Examples of adaptations include transforming a book into a movie or
a song into a musical. The right of adaptation is also found in virtually all copyright systems. For

43
example, Article 12 of the Berne Convention27 requires member countries to grant authors the
right to authorize adaptations, arrangements, and other alterations of copyrighted works. The
right of adaptation also encompasses the right to translate a work into other languages. Article 8
of the Berne Convention requires member countries to recognize this right of translation. In
some legal systems, the right of adaptation is expressed as the right to make derivative works,
which use the original work as a starting point but are not direct copies of the original work.

In most countries, the reproduction right and the adaptation right are closely aligned. In other
words, the majority of activities that violate the adaptation right also violate the reproduction
right. However, there are exceptions. For example, cutting up a photograph to include it in a
collage may violate the adaptation right (unless of course that behavior is excused by one of the
exceptions or limitations). But, because that activity did not entail making a new copy, it would
not violate the right of reproduction. However, the degree of overlap between these two rights
varies somewhat by country. Which of the two rights is implicated by a particular case will
sometimes make a difference -- for example, if the copyright owner has granted a license for one
of the rights but not the other.

How far do these rights reach? That copyright only protects the expression of ideas, not the
ideas or facts themselves. Thus, a work that is inspired by the ideas contained in another work
but does not use any of the protected expression from the initial work is neither a reproduction
nor an adaptation, and will not violate the copyright holder's rights. Also, note that Article 2(3)
of the Berne Convention provides that authorized adaptations are protected by their own,
separate copyright, in addition to the copyright protection given to the original work.

Finally, a copyright holder also has the exclusive right to distribute his or her work, and the right
to import copies of the work subject to certain exceptions. The right to distribute encompasses
the right to sell or authorize the initial sale of a copy of the work.

Rights Relating to Communication of a Work to the Public

Another important economic right of a copyright holder is the right to communicate the work to
the public. In many countries, this right is expressed as the right of public performance and
public display. The right of public performance relates to showings of plays, movies, and music.

27
Berne Convention, 1886

44
The right of public display relates to the display of artwork such as paintings and
sculptures. Article 11 of the Berne Convention28 requires member countries to grant the holders
of copyrights in dramatic and musical works the right to control public performances of those
works by any means or process (including, for example, a live performance or playing a
recording of a performance). Article 11 also extends the right of public performance to
translations of a copyrighted work. It also requires that copyright holders be given the right to
authorize the broadcasting or public communication of the copyrighted work by wire,
loudspeaker, or any analogous instrument transmitting, by signs, sounds, or images.

As their labels indicate, the rights of public display and public performance only control
activities that are public. Thus, persons who own authorized copies of copyrighted works may
display or broadcast the works in non-public settings without risk of infringement. For example,
a person who owns a copy of a movie may play the movie in her home to a group of social
guests without infringing the right of public performance. Similarly, a person who owns a
painting or sculpture may display the work in her home without infringing the right of public
display.

The copyright holders right to control the public performance of her work extends to many
communications that might not initially seem like performances. For example, as indicated
above, it grants a copyright holder the right to authorize broadcasts of her work. This includes
television broadcasting, cable distribution, satellite distribution, and re-broadcasts of a work. It
can also encompass on-demand digital transmissions and pay-per-view broadcasts. At least in
some countries, the right also extends to performances in settings that don't seem especially
"public" in the ordinary sense -- for example, in schools, nursing homes, and prisons.

The WIPO Copyright Treaty (WCT)29 and WIPO Performers and Phonograms Treaty (WPPT),30
altered this set of rules subtly -- and in ways that have not yet been fully resolved. Article 8 of
the WCT and Articles 10 and 12 of the WPPT require member countries to recognize a right to
make a copyrighted work "available" to the public. The United States has taken the position that
these treaty provisions do not require any change in the way that the US has formulated and
enforced the right of public performance. Not all countries agree. The EU, for example, has
28
Ibid.
29
1996
30
Ibid.

45
taken the position that the "making available" right adds something new. The principal
circumstance in which this disagreement might make a difference is when someone posts a
copyrighted document on a website, but no one has yet downloaded it. The treatment of such
cases may vary by country.

MORAL RIGHTS

Many countries provide authors moral rights in addition to economic rights. Unlike economic
rights, moral rights usually cannot be transferred to other persons, although many countries allow
them to be waived -- either altogether (for example, in the United States) or in conjunction with
specific licenses of economic rights (for example, in France). The limits on transfers of moral
rights reflects the rationale that underlie them -- namely, that the works produced by an author
are an extension of his or her self and bear the an imprint of his or her personality. Accordingly,
moral rights protect certain copyrighted works from destruction or mutilation, partially to protect
the authors expression of her personality, and partially to protect the authors reputation from
harm. Moral rights are recognized especially broadly in countries with civil law traditions.

Recognition of a limited subset of moral rights is mandated by Article 6 of the Berne

Convention.31 Article 6 requires that the author of a work be given at least two types of moral
rights. The first is commonly know as the "right of attribution." It encompasses not only the right
of an author to have her name associated with her works, but also the right to not have her name
associated with works that are not hers. The right of attribution also gives an author the right to
publish a work under a pseudonym. The second moral right required by Article 6bis is the
author's right to object to the destruction or modification of her work in a way that would harm
her honor or reputation. This is commonly known as the "right of integrity."

Although Article 6 recommends that these moral rights extend after the authors death, at least
until the economic rights expire, it also allows member countries to limit moral rights to the life
of the author. However, the protections of Article 6 are not as strong as they may seem, because
it is the only provision in the Berne Convention that is not incorporated by the TRIPS

31
Supra, 28

46
Agreement. Thus the teeth32 provided by the WTO dispute resolution system are not available
to compel member countries to recognize moral rights.

In addition to the right of attribution and the right of integrity, many countries also recognize a
right of disclosure and a right of withdrawal. The former gives an author the exclusive right to
determine when she will release a work to the public. This right takes precedence even over a
contractual commitment by the author to transfer the work to a client or patron. The latter
permits an author to withdraw works from publication or circulation if she determines that she no
longer wants to be represented by or associated with those particular works. This right is much
less powerful in practice than it first appears, both because the author would have to pay the
people from who the copies are withdrawn and because the right of withdrawal is trumped by the
right of a purchaser to keep goods he or she has purchased. As a result, it is almost never
invoked.

It is important to check your countrys statutory provisions relating to moral rights. Nations vary
considerably on the rights they recognize, the duration of those rights, whether they may be
waived, and so forth. For example, in Spain, seven moral rights are recognized: the right of
disclosure, the right to publish under the author's real name or a pseudonym, the right to be
acknowledged as the author of the work, the right to the integrity of the work (which includes the
right to prevent distortion or modification of the work), the right to modify the work (limited by
other statutory provisions), the right to withdraw the work, and the right of access to a single or
rare copy of the work, even if that copy is owned by a third party (though the authors exercise of
this right is limited by certain considerations for the holder of the copy).

NEIGHBORING AND "SUI GENERIS" RIGHTS

Neighboring rights (also called related rights) consist of the rights of those who assist the
author of a copyrighted work, but who do not qualify for a copyright in the work. They include
the rights of broadcasters and broadcasting organizations in their transmissions of programs (as
opposed to the copyrights in the programs themselves), the right of an artist in her performance
of a piece (as distinguished from the copyright in the underlying work itself), and the right of the
producer of a record (as opposed to the copyright in the musical compositions that the record

32
Supra, 29

47
embodies). It is important to keep these neighboring rights in mind, in addition to the rights of
the copyright holder, when considering what uses of a given work are permissible.

In addition to the neighboring rights attached to performances, some countries recently have
recognized rights in databases, semiconductor chip designs, boat-hull designs, and so forth.
These rights are commonly known as sui generis rights -- although the distinction between
"neighboring rights" and "sui generis" rights is largely arbitrary. Of these new rights, the only
one that might significantly affect the activities of librarians is the protection of databases. As
indicated above, most countries use ordinary copyright law to protect original ways in which the
data in a database is selected or arranged. But, so far, only in the European Union are
the contents of the database protected.

The EU's database protection system is highly controversial. Critics contend that it is
unnecessary to provide incentives for the creation of databases and merely impedes the flow of
factual information. However, efforts to test this criticism empirically by comparing the rates of
database innovation in countries with and without database protection rules have thus far been
inconclusive. Until the dispute is resolved, database protection is unlikely to spread to
developing countries.

RENTAL AND LENDING RIGHTS

In addition to the rights described above, in some countries the holders of copyrights in some
kinds of works have been given rights of various sorts in situations where their works are
temporarily made available to other persons. Two quite different rights must be distinguished.
A rental right governs situations in which a copy of a copyrighted work is rented to someone for
commercial advantage. A public lending right governs situations in which a copy of a
copyrighted work is provided temporarily by an institution to a patron for free. The lending
practices of almost all public and academic libraries would fall under the second heading.

Both rights are relatively new and remain highly controversial. The TRIPS Agreement (in Article
11), the WCT (in Article 7), and the WPPT (in Articles 9 and 13) now all require member
countries to recognize rental rights -- but only with respect to three narrow categories of works:
computer programs, movies, and phonograms. None of these agreements -- and no other
multilateral treaty -- requires member countries to recognize public lending rights. Thus far, only

48
one regional agreement requires member countries to establish public lending rights: the 1992
Rental and Lending Rights Directive of the EU. Articles 1 and 2 of that directive require
members to extend both rental and lending rights, not just to performers, phonogram producers,
and film producers, but also to "authors." Article 5 of the directive permits member countries to
limit the lending right, but only if authors are compensated, or to exempt categories of
institutions from its coverage, but only if they do not thereby effectively exempt all institutions.
The directive proved extremely controversial, and formal proceedings were necessary to force
several EU members to conform to it.

Given the highly incomplete coverage of rental and public lending rights in the supranational
agreements, it is not surprising that many countries currently do not recognize them. Of
particular importance to libraries, currently only 29 countrieshave established public lending
rights systems. Most of those countries are in Europe. The United States does not have one, nor
does any country in Latin America, Africa, or Asia.

Librarians in developing countries may soon be called upon to participate in discussions

concerning whether their countries should adopt a public lending right system. What position
should they take? The International Federation of Library Associations and Institutions
(IFLA) offers two sensible recommendations. First, librarians should not accept any legislative
proposals that would require the libraries themselves to pay fees to authors, performers, and
producers. The only ways that libraries could make such payments would be either to charge
users or to withdraw scarce resources from other programs. Either strategy would fundamentally
impair the libraries' core mission. In short, the only acceptable version of a public lending system
would be one in which the government, not the libraries, paid the fees -- as occurs in most
European countries. Second, the IFLA argues that even a system in which the government paid
the fees would be unwise in developing countries, because it would reduce the money the
government could spend on even more essential social or cultural functions -- such as providing
its citizens adequate health care or basic educations.

This issue will almost certainly require librarians' close attention in the near future.

49
EXCEPTIONS AND LIMITATIONS

All of the international copyright agreements permit countries to make certain exceptions to the
rights we have described thus far. Every country has indeed made such exceptions. The purposes
of these exceptions vary. Some are justified by the need to respect freedom of expression or
privacy. Others are intended to prevent copyright law from frustrating rather than fostering
creativity. Still others recognize the impossibility of monitoring and charging for some uses. The
list of exceptions is very long. In general, the exceptions should be considered just as important
as the rights they qualify. Together, they are intended to strike a balance between the interests of
authors and the interests of users and the public at large. For this reason, it is sometimes said that
the exceptions create "user rights."

The exceptions take one of two forms. Exceptions of the first type identify specific permissible
activities. An influential example of this approach is Article 5 of the EU Copyright Directive.
Section 2 of that article authorizes EU member countries to provide for the following exceptions
to the right of reproduction:

(a) in respect of reproductions on paper or any similar medium, effected by the use of any kind
of photographic technique or by some other process having similar effects, with the exception of
sheet music, provided that the right holders receive fair compensation;

(b) in respect of reproductions on any medium made by a natural person for private use and for
ends that are neither directly nor indirectly commercial, on condition that the right holders
receive fair compensation which takes account of the application or non-application of
technological measures referred to in Article 6 to the work or subject-matter concerned;

(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational
establishments or museums, or by archives, which are not for direct or indirect economic or
commercial advantage;

(d) in respect of ephemeral recordings of works made by broadcasting organisations by means of

their own facilities and for their own broadcasts; the preservation of these recordings in official
archives may, on the grounds of their exceptional documentary character, be permitted;

50
(e) in respect of reproductions of broadcasts made by social institutions pursuing non-
commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair
compensation.''

Section 3 then authorizes member states to create any of the following exceptions both to the
right of reproduction and to the right to communicate or make works available to the public:

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the
source, including the author's name, is indicated, unless this turns out to be impossible and to the
extent justified by the non-commercial purpose to be achieved;

(b) uses, for the benefit of people with a disability, which are directly related to the disability and
of a non-commercial nature, to the extent required by the specific disability;

(c) reproduction by the press, communication to the public or making available of published
articles on current economic, political or religious topics or of broadcast works or other subject-
matter of the same character, in cases where such use is not expressly reserved, and as long as
the source, including the author's name, is indicated, or use of works or other subject-matter in
connection with the reporting of current events, to the extent justified by the informatory purpose
and as long as the source, including the author's name, is indicated, unless this turns out to be
impossible;

(d) quotations for purposes such as criticism or review, provided that they relate to a work or
other subject-matter which has already been lawfully made available to the public, that, unless
this turns out to be impossible, the source, including the author's name, is indicated, and that
their use is in accordance with fair practice, and to the extent required by the specific purpose;

(e) use for the purposes of public security or to ensure the proper performance or reporting of
administrative, parliamentary or judicial proceedings;

(f) use of political speeches as well as extracts of public lectures or similar works or subject-
matter to the extent justified by the informatory purpose and provided that the source, including
the author's name, is indicated, except where this turns out to be impossible;

(g) use during religious celebrations or official celebrations organised by a public authority;

51
(h) use of works, such as works of architecture or sculpture, made to be located permanently in
public places;

(i) incidental inclusion of a work or other subject-matter in other material;

(j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent
necessary to promote the event, excluding any other commercial use;

(k) use for the purpose of caricature, parody or pastiche;

(l) use in connection with the demonstration or repair of equipment;

(m) use of an artistic work in the form of a building or a drawing or plan of a building for the
purposes of reconstructing the building;

(n) use by communication or making available, for the purpose of research or private study, to
individual members of the public by dedicated terminals on the premises of establishments
referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or
licensing terms which are contained in their collections;

(o) use in certain other cases of minor importance where exceptions or limitations already exist
under national law, provided that they only concern analogue uses and do not affect the free
circulation of goods and services within the Community, without prejudice to the other
exceptions and limitations contained in this Article.

Many of these exceptions plainly benefit the libraries (and their users) in the EU countries that
have recognized them. Especially noteworthy are the exceptions for "specific acts of
reproduction made by publicly accessible libraries" so long as they are not for "economic or
commercial advantage" and "uses for the benefit of people with a disability."

That said, the set of exceptions contained in Article 5 of the EU Copyright Directive is surely not
the only example of the enumerated-list approach. The three-step test, discussed in Module 2,
gives individual countries considerably more latitude in selecting exceptions and limitations than
the EU has exercised. Some countries have gone a good deal further.

The second general approach is to state some general guidelines for permissible uses and then
delegate to the courts responsibility for applying those factors to individual cases. The premier

52
example of this approach is the fair use doctrine in the United States, which is also embodied in
section 107 of the U.S. Copyright Act:

Notwithstanding the [statutory provisions granting copyright holders exclusive rights], the fair
use of a copyrighted work, including such use by reproduction in copies or phone records or by
any other means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include (1) the purpose and character of the
use, including whether such use is of a commercial nature or is for nonprofit educational
purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the
potential market for or value of the copyrighted work. The fact that a work is unpublished shall
not itself bar a finding of fair use if such finding is made upon consideration of all the above
factors.

Courts in the United States have relied on this provision to recognize exceptions for a wide range
of activities, including the making of a parody of a copyrighted work, reproducing a portion of a
copyrighted work for the purpose of scholarship, and using a videocassette recorder to record a
television program or movie for viewing at a later time.

In between these two general approaches is a strategy sometimes known as "fair dealing." A
good example is the system used in Australia. The Australian Copyright Act (as amended in
2006) identifies some broad circumstances in which an unauthorized use of a copyrighted work
might be considered fair: research, criticism or review, news reporting, legal advice, and parody
or satire. Merely falling into one of these boxes does not mean, however, that a particular activity
will be deemed fair. Rather, the courts consider individual cases by consulting a set of factors
that loosely parallel the factors used in the US system. In general, the courts will excuse conduct
within these boxes if they deem it appropriate "judged by the criterion of a fair minded and
honest person." The Australian approach is generally thought to be less unpredictable -- but also
less flexible -- than the US approach.

A separate and nearly universal exception to the rights of a copyright holder is the first sale
doctrine. The first sale doctrine says that once a consumer has lawfully purchased a copy of a

53
copyrighted work, the copyright holder no longer has the ability to control that particular copy.
For this reason, resale, lending, or rental of a lawfully purchased copyrighted work is generally
permissible. However, countries can impose certain limitations on these rights. They may restrict
or require compulsory licenses for certain uses of copyrighted works. For example, as indicated
above, a nation may prohibit the rental of goods that are easily and frequently copied, such as
software or phonorecords. Additionally, a nation may require that the author of the work be paid
a certain fee upon resale of a copy of a copyrighted work. (This so-called "droit de suite" only
exists in a few jurisdictions, and even there only applies to unique works of fine art.)

The operation of the first sale doctrine is less intuitive with digital works. This is because what
may seem like normal use from a consumers perspective may actually involve the making of
additional digital copies. This in turn could be prohibited by the authors exclusive right of
reproduction. For example, if a consumer purchases a CD, she can listen to it on any CD player
without worrying about infringing the authors copyright. She can also, because of the first sale
doctrine, lend that CD to a friend who can listen to it on a CD player and then give it back,
without worrying about infringing the authors rights. However, if that same consumer purchases
a sound recording online, listens to it, and then emails a copy to a friend, she will have violated
the copyright law (even if she deletes her original copy) because the original recording has been
reproduced. There remains a serious policy question as to whether the first sale doctrine to
govern such cases, but as yet that has not occurred.

LIBRARY EXCEPTIONS

Last but not least, the copyright laws of many countries contain exceptions or limitations
designed to enable librarians to use copyrighted materials in ways that advance their missions.
These provisions vary widely by country. For a thorough review of the library exceptions in
limitations in 128 countries, you should consult Kenneth Crewss Study on Copyright
Limitations and Exceptions for Libraries and Archives.

Set forth below are descriptions of some common situations in which librarians need flexibility
in using copyrighted materials, plus summaries of the ways in which many countries deal with
those situations.

Allowing Library Patrons to Use the Librarys Copy Machines or Other Copy Equipment

54
Patrons frequently wish to make copies of excerpts of library-owned materials. Unless the book
or article the patron is copying is in public domain, such copying is regulated by the countrys
copyright statute. If the copying exceeds the maximum set by other exceptions and limitations,
the patron may be committing copyright infringement. In some situations, absent a statutory or
other safe harbor, the library could be held secondarily or indirectly liable for allowing the
infringement to take place by providing the equipment. (The concepts of secondary and indirect
liability will be discussed in more detail in Module 7.)

Fortunately, many countries have enacted specific statutory provisions that shield librarians and
libraries from liability for copyright infringement committed by patrons who use photocopiers or
other equipment the library provides. To qualify for the statutory exemption, libraries typically
must post a notice and a disclaimer, stating that the making of photocopies or other reproductions
is governed by copyright law, and that the person using the equipment is liable for any
infringement.

Making Copyrighted Materials Available On The Library's Computers

Libraries sometimes make materials available to the public on computers. For example, they
sometimes operate websites and post on those websites materials that the public at large can
reach via the Internet. If those materials are subject to copyright, and if the library fails to obtain
permission for displaying them, it may be subject to liability. However, many countries have
enacted so-called safe harbor exceptions to limit the liability of online service providers. To
the extent that universities and libraries may be considered such providers, they are shielded
from liability, as long as they comply with the procedures set forth in each countrys laws.

Making Copies for Library Patrons

Library patrons often ask librarians to make copies of copyrighted materials for their personal
use. Many countries provide statutory exceptions that permit librarians to make limited copies
for this purpose. Some allow such reproductions only for certain specified classes of works such
as periodicals, while others make no such distinctions. Further, some countries only permit
copying for purposes such as research, while others do not have this limitation.

By way of example, the United Kingdom allows librarians to make copies of articles in
periodicals, but limits such copying to a single article per issue, and requires the patron to prove

55
that the copy is for private noncommercial research or study. Canada, on the other hand, does not
have the single-article restriction, but does limit the reproduction exception to articles published
in scholarly, scientific, or technical journals. Canada also excludes works of fiction, poetry, etc.
from the class of works that may be copied.

Making Digital Copies for Preservation and Replacement

Librarians are permitted, in certain circumstances, to make copies of library materials for their
preservation or replacement. These circumstances are typically tightly regulated by local
copyright statutes. Many countries permit copying as long as:

the library owns the original work

the work is publicly accessible
the original is at risk for damage or deterioration, is in obsolete format, or cannot be
viewed because of the conditions in which it must be kept.

The permitted reproduction is often limited to a small number of copies. If an appropriate copy is
commercially available, the right to reproduce for preservation or replacement is typically
limited. Further, copying is often limited to paper reproduction, and copies made in digital
format typically may not be made available to the public outside of the library premises.

Creating Course Packs for Students

University librarians are sometimes asked to create course packs. Course packs are typically a
collection of excerpts from journals, articles, book chapters, and so forth that a teacher assigns
for students enrolled in a particular course.

In the United States, many universities used to assemble course packs without obtaining
permission from the copyright holders of the individual articles, believing that such copying
qualified for the fair use exception for academic purposes. However, court decisions in the
1990s held that the preparation and sale of such course packs by commercial "copy shops" did
not constitute fair use. It is not certain that those decisions would apply to universities, but the
lawyers advising most universities have taken a cautious approach. At their urging, most US
universities have now adopted systems for obtaining licenses to all materials included in course
packs.

56
It is possible that a country that, unlike the United States, relies upon a list of specific exceptions
and limitations, rather than a general fair use doctrine, to set the limits of copyright protection
may have a specific provision that authorizes the creation of course packs. If not, librarians in
such a country must obtain a written license from the copyright holders in order to create course
packs. To reduce the administrative burden of seeking permission from many different copyright
holders, librarians may wish to contract with collective management organizations. These private
services who enter into affiliations with academic publishers and obtain blanket clearance
licenses for the publishers entire catalog, or enter into agreements with a collective management
organization representing publishers.

Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons

In most countries, specific exemptions allow librarians to provide modified copies of works to
serve the needs of visually impaired patrons. A more detailed discussion of the copyright
exception for visually impaired persons can be found in Judith Sullivans report of the Fifteenth
Session of the WIPO Standing Committee on Copyright and Related Rights, which is
available here. This situation may change soon if a treaty currently being considered by WIPO is
adopted.

In some cases, a country may not have a specific statutory library exception. Yet libraries may
still be entitled to engage in many of the activities described above, if those countries have a
broader provision that would permit any citizen, which would include librarians and library
patrons, to undertake these activities. This is true, for example, in Iraq and Namibia. Some
countries limit their exceptions to a list of designated libraries; in other countries, the exceptions
are available to all libraries that meet certain requirements, such as being open to the public and
acting for non-commercial purposes.

Compulsory Licenses

In addition to the exceptions and limitations surveyed above, many countries limit the rights of
copyright holders with so-called "compulsory licenses." Compulsory licenses are often seen as
compromises between the economic interests of copyright holders and the publics interest in
using copyrighted material. For example, Article 13 of the Berne Convention gives countries the
authority to impose compulsory licenses for the use of musical compositions. Examples of

57
compulsory licenses existing in some countries include the right of public lending by libraries,
and the right of private coping of audio recordings in exchange for a tax on blank CDs.

Collective licensing at an international level

In many countries, copyright collective management organizations (also known as collecting

societies or collective management organizations or CMOs)

license large-scale use of works on behalf of large numbers of rightsholders

collect royalties for those uses

distribute these royalties back to rightsholders

There are collective management organizations that specialize in different categories of works
and creators. In the field of text and image-based works these organizations are
called Reproduction Rights Organisations (RROs). They typically deal with the licensing of
secondary uses of books, journals, newspapers and magazines in both their paper formats AND
their online or digital formats and in some cases also with visual content such as motion
pictures, photographs and illustrations.

Copyright Clearance Center (CCC), the parent organization of Rights Direct, is an RRO
itself. There are RROs in almost 80 countries, ranging from sophisticated organizations with
long histories to start-up organizations in developing countries. Most RROs belong to
the International Federation of Reproduction Rights Organisations (IFRRO).

RROs around the world work with different licensing models either required or permitted by
their local copyright law. According to IFRROs Quick Guide there are three basic types of RRO
licensing models

Voluntary collective licensing

Voluntary collective licensing with legislative support

Legal licenses

58
Some RROs offer a combination of features from the three licensing models. RRO licenses can
also differ in the number and types of works they include, the types of uses they allow, and their
geographic scope.

DURATION OF COPYRIGHT

The duration of copyright may vary from country to country according to the type of work (and
the particular right in question). Although Berne sets a minimum duration of a copyright in a
literary work equal to the life of the author plus 50 years, in most cases and countries today, the
general rule is that copyright in literary, dramatic, musical or artistic works lasts for the life of
the author and then until 31 December of the year 70 years after his or her death (usually
referred to as life plus 70).

In some countries, specific rules may apply that alter or add to the general rule of life plus 70
years (for example, granting extensions for the period of World War II). In addition, some
countries had different copyright terms that were in effect before adoption of the general rule.
For example, the United States did not adopt a life plus copyright duration until 1978. These
differences in national laws imply the fact that in some cases a specific work can still be in
copyright in some countries but out of copyright (that is, in the public domain) in others.

PUBLIC DOMAIN

The public domain refers to works

(i) no longer protected by copyright (that is, where the copyright has expired)

(ii) belonging to categories of works not protected by copyright law.

In addition, in some countries (including the United States and, for certain purposes, the United
Kingdom) government works are defined by law as being in the public domain (not protected by
copyright) from the moment of their creation.

Thus, differences in how national copyright laws define the duration of copyright and list the
categories of works protected, result in different definitions of the public domain on a country-
by-country basis.

59
In Europe, the European Connect project has developed a helpful Public Domain
Calculation tool.

FAIR DEALING AND FAIR USE

While most countries specifically identify the exceptions and limitations to copyright that they
have created, the United Kingdom and the United States have each created broad exceptions in
their respective statutes.

In the United Kingdom and many of its former colonies (including Ireland, Canada, Hong Kong,
Australia and New Zealand), the principle of fair dealing covers a substantial scope of uses
where prior permission is not needed. The criteria for what is considered to be fair dealing are
listed in the law in each of those countries, without mentioning every specific possible use. In the
United States (and, more recently, Israel, Poland and possibly a few other countries), the
concept of fair use covers certain uses that, on balance, are deemed not to impinge on the
rights of the copyright holder sufficiently, and/or are deemed to serve a sufficiently
important public-policy goal, that they are permitted without the authorization of the
copyright holder. The factors assessed by a court to determine fair use are set forth in each
countrys statute and case law.

At the outset, it should be mentioned that the Fair Use of the work depends upon facts and
circumstances of each case. In a copyright infringement case dealing with fair use, the duty of
the court is to first determine whether the defendant has use the copyrighted information in a
natural or justifiable manner or has taken advantage of already existing work of the plaintiff. In
deciding that, the court has to deal with the above mentioned factors before coming to any
conclusion. The purpose and character of the use plays a major role in determining the copyright
infringement. If the defendant has used it for a purpose which is justifiable or excusable under
the Copyright Act, it may not constitute infringement. It is important that the each fact is
weighted properly in deciding fair use. For example, if a person writes a book on topic Mother s
care and gets his book copyrighted and subsequently, another person with title Mother s care
writes a article on mother s care on child. Under ordinary circumstances, it may be an
infringement, but here it is just an article on care of mother towards the child to an non-paying
audience with no commercial element involved in it. Therefore, it would be come under fair use

60
not amounting to infringement. In the case of Harper & Row v. Nation Enterprises, Former
President Gerald Ford had written a memoir including an account of his decision to pardon
Richard Nixon. Ford had licensed his publication rights to Harper & Row, which had contracted
for excerpts of the memoir to be printed in Time. Instead, The Nation magazine published 300 to
400 words of verbatim quotes from the 500-page book without the permission of Ford, Harper &
Row, or Time magazine. The Nation asserted as a defense that Ford was a public figure, and his
reasons for pardoning Nixon were of vital interest, and that appropriation in such circumstances
should qualify as a fair use. The court ruled that fair use is not a defense to the appropriation of
work by a famous political figure simply because of the public interest in learning of that
political figure's account of an historic event. As stated before, the concept of fair use come into
play once the act of the defendant is justifiable or is excusable under the law. In the case of
Eastern Book Company Vs D.B.Modak,33 the plaintiff reported the judgments of the courts along
with a head notes giving synopsis of the judgment.

In the case of S.K. Dutt vs Law Book Co. And Ors.34 the court determined the amount of
substantiality should be more than half of the total work. It has also held that where the half of
the work is copied and the remaining being original work, it does not constitute infringement. a.
If there are no similarities, no amount of evidence of access will suffice to prove copying. b. If
evidence of access is absent, the similarities must be so striking as to preclude the possibility that
plaintiff and the defendant arrived at the same result. Therefore, to summarise the Condition to
prove infringement can be summarized as follows: a. Closely Similarity b. Unlawful c. Some
connection d. Access to original work, Tests Applied The Protected Expression Test The first
test for improper appropriation is to identify whether the defendant s work copies any protected
expression from the plaintiff s work, i.e., exclude those elements from the plaintiff s work, which
are not protectable under law. Examples of such elements are expressions which to which the
Idea-Expression Doctrine applies or the doctrine of Scenes a faire applies. This arises in
situations where the idea and expression merge and since copyright law does not protect ideas
per se, that element is not protected under copyright. Also, this relates to those elements, which
necessarily have to be present in any form of expression of an idea and hence, not protected
under copyright. The Court first separates these elements from the work that is alleged to be

33
AIR 2008 SC 809
34
AIR 1954

61
copied. Of course, in reality, the most difficult task is to determine the point at which the
unprotectible ideas in a copyrighted work end and where the protected expression starts.

Overlap between copyright, patent, and trademark There can be some overlap between
Copyright, trademark and patents, especially between copyright and trademark. If you paint a
picture, that picture is protected by copyright. What if someone sees your picture and wants to
use it as a logo for the company they run? Now, that same picture could be a trademark. The
picture s status as a trademark does not affect its copyright status. Both protections will be there,
and it is only a question of which protection you use to enforce your rights in the work. That, in
turn, depends on how those rights are violated. If your picture is just copied, it s a copyright
infringement. If it s used to sell a different product, it s probably a trademark infringement as
well. Licensing The copyright owner may grant a license and transfer some or all of his rights to
others to exploit his work for monetary benefits. A license is different from an assignment as
licensee gets certain rights subject to the conditions specified in the license agreement but the
ownership of those rights is not vested with him while in case of an assignment the assignee
becomes the owner of the interest assigned to him. A license may be exclusive or of
nonexclusive type. Voluntary Licensing The owner of the Copyright in any existing or future
work may grant any interest in the work by way of license. As regards the future works the
license shall take effect only when the works comes into existence. For a license to be valid it
must be in writing and signed by either the owner or his duly authorized agent. And where a
person to whom a license relating to copyright in any future work dies before the work comes
into existence, his legal representative shall be entitled to the benefit of the license. A License
Agreement generally contains the following particulars: Identification of the work licensed
Duration of the license Territorial extent of the license Amount of royalty payable Conditions
relating to revision, extension and/or termination of license.

Any dispute in respect of the license shall be settled by the Copyright Board or by way of
Arbitration. Allowability of sub-licensing etc. Compulsory Licensing Compulsory Licensing can
be invoked under certain circumstances with respect to both published works and unpublished
works. Compulsory licenses can also be obtained for the purposes of production and publication
or translation of the work. The procedure for obtaining compulsory licensing with respect to the
Indian works and foreign works is different Compulsory licensing on Published Works With

62
respect to the Indian works published or performed in public, compulsory licenses can be
obtained by making a complaint to the Copyright Board on the ground that the owner has:
Refused to re-publish or allow the republication of the work or has refused to allow the
performance of the work in public and by reason of such refusal the work is withheld from the
public. Refused to allow the communication of the work to the public by broadcast of the work
or work in the sound recording on such terms, which the complainant considers reasonable.
Refused to allow the performance of the work in pubic and by reason of such refusal work is
withheld from public; Compulsory licensing on Published Works Compulsory licenses can also
be obtained with respect to the unpublished works by making an application to the Copyright
board in the following circumstances: Author is dead Author is unknown Author cannot be
traced Author cannot be found

Before making an application in respect of an unpublished work the applicant is required to

publish his proposal in one issue of a daily newspaper in the English language having circulation
in major part of the country and also in one issue of any daily newspaper in that language.
Compulsory licensing with regard to copyright is mostly paper realism as books or films are
seldom licensed compulsorily. Recently, the compulsory licensing was enforced in the field of
Patents which were not welcomed by the foreign counterparts as this would reduce their income.
This law supported by conventions such as Vienna Conventions and TRIPS has to be taken
advantage to include the foreign works and the foreign books must be made available to the
general public at a lesser cost. Cancellation of License The Copyright Board can cancel the
license granted on any of the following grounds: The licensee has failed to produce and publish
the translation of the work within the specified period or the extended period. The license was
obtained by fraud or misrepresentation as to any essential fact. The licensee has contravened any
of the terms and conditions of the license. Assignment The owner of the copyright in an existing
work or the prospective owner of the copyright in a future work may assign to any person the
copyright either wholly or partially and either generally or subject to limitations and either for
the whole term of the copyright or any part thereof. A right to assign work under the Copyright
Act 1957 arises naturally when the work comes into existence. However, certain rights are
specific to certain types of subject matter/work. Further an author/owner is entitled to multiple

63
rights broadly categorised as Economic rights and Moral rights.35 The owner of a copyright may
grant an interest in the copyright by a License. The Act prescribes that a prospective owner of a
copyright in future work may assign the copyright, to any person, either wholly or partially,
although the assignment shall take effect only when the work comes into existence.

The requirements for a valid assignment

a. It must be in writing.

b. It should be signed by the Assignor.

c. The copyrighted work must be identified and must specify the rights assigned.

d. It should have the terms regarding revision, royalty and termination.

e. It should specify the amount of royalty payable, if any, to the author or his legal heirs.

f. In the event the Assignee does not exercise the rights assigned to him within a period of one
year, the assignment in respect of such rights is deemed to have lapsed unless otherwise specified
in the Agreement.

g. If the period of assignment is not stated, it is deemed to be five years from the date of
assignment, and if no geographical limits are specified, it shall be presumed to extend within
India.

h. If the territorial extent of assignment of the rights is not specified, it shall be presumed to
extend within the whole of India.

The above provisions apply both to registered and unregistered copyright. Apart from the above
requirements, in case of registered copyright, the following additional steps also have to be
taken. In case of Registered Copyright the Assignee has to make an application for registration of
changes in the particulars of copyright entered in the Register of Copyrights in Form V under
Rule 16 of Copyright Rules, 1958 to be delivered by hand or registered post. Attested copies of
the deeds of assignments should be enclosed with the application. Difference between
Assignment and License a. Assignment of copy right and copyright license are two forms of
contract involved in the exploitation of copyright work by a third party. License is an

35
Brad Sherman and Lionel Bently, Intellectual Property Laws, oxford university press, 1st edition.

64
authorization of an act without which authorization would be an infringement. Licensing usually
involves licensing of some of the rights and not the whole. Licenses can be exclusive or non
exclusive.36

An assignment involves the disposal of the copyright.

a. The author (assigner) assigns the copyright to another person (assignee) or

transfers the ownership of the copyright.
b. Assignee will be the owner of the copyright as regard rights so assigned. The
owner will be the owner of the copyright of remaining rights. The assignment
could be for whole duration of the copyright or for a short duration. In case of
Licensing, the ownership shall always vest with the owner (Licensor).
c. The licensee can join with the owner of the copyright and as a party to the
infringement, and take an action for infringement against third party but a
bonafide purchaser in good faith and for consideration of the proprietors interest
without notice of previous licensee is unaffected by it.On the other hand, in case
of assignment, where the ownership is transferred, the assignee himself can take
action against the third party.
d. The licensee can however, sue the licensor for damages for breach of contract if
the latter does not protect his interest. A licensee has a right to make alterations
except in so far as his license expressly or impliedly restricts the right. A failure to
pay royalties enables the licensor to revoke the license. But in the case of
assignment it is not possible. But if there is any harsh terms which affects the
author s right, it can lead to revocation if a complaint is made to the copyright
Board. Where the assignee of a copyright becomes entitled to any right comprised
in the copyright, the assignee as respects to the rights so assigned, and the
assignor as respects the rights not assigned, shall be treated for the purposes of
this Act as the owner of copyright and the provisions of this Act shall have effect
accordingly.
e. Under Section 30 of the Copyright Act,37 if the licensee in the case of future work
dies before the work comes in to existence his legal representatives shall be

36
Bharat Law House Vs. Wadhwa AIR 1988

65
 entitled to such works, in the absence of any provision to the contrary. The
expression "assignee" as respects the assignment of the copyright in any future
work includes the legal representatives of the assignee, if the assignee dies before
the work comes into existence. The owner of the copyright has the power to
assign his entire rights or assign only some of the rights. In case the rights are
split up there is only partial assignment.38

OBTAINING PERMISSION TO USE A COPYRIGHTED WORK

Copyright law dictates that purchasing a copy of a work, such as a book, scientific journal,
magazine or a newspaper, does not give the buyer the right to make any copyright-sensitive use
of that work (even though it gives the buyer the right to dispose of the purchased copy however
she wants to) meaning that, although the purchased copy may be read or otherwise enjoyed,
and may be re-sold, given away or destroyed, the work embodied in the copy may not be
reproduced, publicly performed or otherwise used within the scope of the copyright law.

In the case where a copyright-sensitive use needs to be made (such as a reproduction for business
use), permission can usually be obtained:

directly from the rights holder

from a third party organization that has been authorized by the rights holder to grant
the permission on his or her behalf.

In some countries, that permission is granted by law (a legal license) in exchange for a
designated payment.

AUTHORSHIP AND OWNERSHIP

Whose rights are protected by copyright?

Copyright protects the rights of authors, i.e., creators of intellectual property in the form of
literary, musical, dramatic and artistic works and cinematograph films and sound recordings.

37
Copyright Act, 1957
38
Gramophone Co of India Ltd v. Shanti Films Corpn AIR 1997 Cal 63

66
Who is the first owner of copyright in a work?

Ordinarily the author is the first owner of copyright in a work.

AUTHOR

In the case of a literary or dramatic work the author, i.e., the person who creates the work.

In the case of a musical work, the composer.

In the case of a cinematograph film, the producer.

In the case of a sound recording, the producer.

In the case of a photograph, the photographer.

In the case of a computer generated work, the person who causes the work to be created.

RIGHTS IN A MUSICAL SOUND RECORDING

There are many right holders in a musical sound recording. For example, the lyricist who wrote
the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who
performed the background music, and the person or company who produced the sound recording.

Necessary to obtain any licence or permission to use a musical sound recording for public
performance

A sound recording generally comprises various rights. It is necessary to obtain the licences from
each and every right owner in the sound recording. This would ,inter alia, include the producer
of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the
music.

OWNER OF COPYRIGHT IN A GOVERNMENT WORK

In the case of a government work, government shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein.

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OWNER OF COPYRIGHT IN THE WORK OF A PUBLIC UNDERTAKING

In the case of a work made or first published by or under the direction or control of any public
undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be
the first owner of the copyright therein.

OWNER OF COPYRIGHT IN WORKS BY JOURNALISTS DURING THE COURSE

OF THEIR EMPLOYMENT

In the case of a literary, dramatic or artistic work made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical under a contract of
service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first
owner of the copyright in the work in so far as the copyright relates to the publication of the
work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the
purpose of its being so published, but in all other respects the author shall be the first owner of
the copyright in the work.

OWNER OF A WORK PRODUCED DURING THE COURSE OF THE AUTHORS

EMPLOYMENT

In the case of a work made in the course of the authors employment under a contract of service
or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the
first owner of the copyright therein.

owner of the copyright in the case of a work produced for valuable consideration at the
instance of another person

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a

cinematograph film made, for valuable consideration at the instance of any person, such person
shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

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Copyright Assignable

Yes. The owner of the copyright in an existing work or the prospective owner of the copyright in
a future work may assign to any person the copyright either wholly or partially and either
generally or subject to limitations and either for the whole term of the copyright or any part
thereof.

Mode Of Assigning Copyright

It shall be in writing signed by the assignor or by his duly authorised agent. It shall identify the
specific works and specify the rights assigned and the duration and territorial extent of such
assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal
heirs during the currency of the assignment and the assignment shall be subject to revision,
extension or termination on terms mutually agreed upon by the parties.

Does an assignment lapse automatically?

Where the assignee does not exercise the rights assigned to him within a period of one year from
the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed
after the expiry of the said period unless otherwise specified in the assignment.

COPYRIGHT BOARD

ADMINISTRATION OF COPYRIGHT LAW

Advisory Body On Copyright Matters

The government has set up a Copyright Enforcement Advisory Council (CEAC). The present
composition of the CEAC is at Appendix- II.

69
Are there special courts for copyright

No. There are no special courts for copyright cases. The regular courts try these cases. There is a
Copyright Board to adjudicate certain cases pertaining to copyright.

THE POWERS OF COPYRIGHT BOARD

The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a
Chairman and two or more, but not exceeding fourteen, other members for adjudicating certain
kinds of copyright cases. The Chairman of the Board is of the level of a judge of a High Court.
The Board has the power to:

i. hear appeals against the orders of the Registrar of Copyright;

ii. hear applications for rectification of entries in the Register of
Copyrights;
iii. adjudicate upon disputes on assignment of copyright;
iv. grant compulsory licences to publish or republish works (in certain
circumstances);
v. grant compulsory licence to produce and publish a translation of a
literary or dramatic work in any language after a period of seven
years from the first publication of the work;
vi. hear and decide disputes as to whether a work has been published
or about the date of publication or about the term of copyright of a
work in another country;
vii. fix rates of royalties in respect of sound recordings under the
cover-version provision; and
viii. fix the resale share right in original copies of a painting, a
sculpture or a drawing and of original manuscripts of a literary or
dramatic or musical work.

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TERM OF COPYRIGHT BOARD

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic,
musical and artistic works the 60-year period is counted from the year following the death of the
author. In the case of cinematograph films, sound recordings, photographs, posthumous
publications, anonymous and pseudonymous publications, works of government and works of
international organisations, the 60-year period is counted from the date of publication.

Registrar of Copyrights any judicial powers

Yes. The Registrar of Copyrights has the powers of a civil court when trying a suit under the
Code of Civil Procedure in respect of the following matters, namely,

a. summoning and enforcing the attendance of any person and examining him on oath;
b. requiring the discovery and production of any document;
c. receiving evidence on affidavit;
d. issuing commissions for the examination of witnesses or documents;
e. requisitioning any public record or copy thereof from any court or office;
f. any other matters which may be prescribed.

COLLECTIVE ADMINISTRATION OF COPYRIGHTS

Collective administration of copyright is a concept where management and protection of

copyright in works are undertook by a society of owners of such works. Obviously no owner of
copyright in any work can keep track of all the uses others make of his work. When he becomes
a member of a national copyright society, that society, because of its organisational facilities and
strength, is able to keep a better vigil over the uses made of that work throughout the country and
collect due royalties from the users of those works. Because of the countrys membership in
international conventions, the copyright societies are able to have reciprocal agreements with
similar societies in other countries for collecting royalties for the uses of Indian works in those

71
countries. From this it can automatically be inferred that it will be in the interests of copyright
owners to join a collective administration organisation to ensure better protection to the
copyright in their works and for reaping optimum economic benefits from their creations. Users
of different types of works also find it easy to obtain licences for legal exploitation of the works
in question, though the collective administrative society.

COPYRIGHT SOCIETY

A copyright society is a registered collective administration society. Such a society is formed by

copyright owners. The minimum membership required for registration of a society is seven.
Ordinarily, only one society is registered to do business in respect of the same class of work. A
copyright society can issue or grant licences in respect of any work in which copyright subsists
or in respect of any other right given by the Copyright Act.

The Functions of A Copyright Society

A copyright society may:

i. Issue licenses in respect of the rights administered by the society.

ii. Collect fees in pursuance of such licenses.
iii. Distribute such fees among owners of copyright after making
deductions for the administrative expenses.

REGISTERED COPYRIGHT SOCIETIES IN INDIA

The following are the registered copyright societies in India:

i. Society for Copyright Regulation of Indian Producers for Film and Television
(SCRIPT) 135 Continental Building, Dr. A.B. Road, Worli, Mumbai 400 018, (for
cinematograph and television films).
ii. The Indian Performing Right Society Limited (IPRS), 208, Golden Chambers,
2nd Floor, New Andheri Link Road, Andheri (W), Mumbai- 400 058 (for musical
works).

72
 iii. Phonographic Performance Limited (PPL) Flame Proof Equipment Building,
B.39, Off New Link Road, Andheri (West), Mumbai 400 053 (for sound
recordings).

Is it necessary to obtain licences from more than one society for exploitation of a work

In many cases, it is necessary to obtain licences from more than one society. For example,
playing of the sound recording of music may involve obtaining a licence from the IPRS for the
public performance of the music as well as a licence from the PPL for playing the records, if
these societies have the particular work in their repertoire.

SUGGESTION

The future of copyright in India:

The copyright laws in India are set to be amended with the introduction of the provisions for
anti-circumvention and Rights Management Information in the Indian copyright regime although
India is under no obligation to introduce these changes as it is not a signatory to WCT or WPPT.

With the amendment of the Copyright Act in 1994, which came into force on 10 May 1995, the
situation with regard to copyright enforcement in India has improved. According to Ramdas
Bhatkal of Popular Prakashan, Bombay, "We had problems of piracy relating to medical
textbooks before the law was amended. At that time we found that while the law may be on our
side, it was necessary to get a court order for search and this meant that there was sufficient
notice to the pirate to take defensive action before the court order could be implemented.
Therefore we preferred to accept the situation and did nothing. Since the changes which make
copyright violation a cognizable offence it has been possible to use the legal mechanism as a
deterrent."

Section 64 of the Indian Copyright Act 1957 provides that "Any police officer, not below the
rank of a sub-inspector, may, if he is satisfied that an offence under Section 63 in respect of the
infringement of copyright in any work has been, is being, or is likely to be, committed, seize
without warrant, all copies of the work, wherever found, and all copies and plates used for the

73
purpose of making infringing copies of the work, wherever found, and all copies and plates so
seized shall, as soon as practicable, be produced before a magistrate."

"Copying a book is similar to stealing somebody's jewellery. Large scale organized copying is
like robbing a jeweller's shop or a bank. But then, there is a major difference. In the case of a
bank robbery the newspapers are full of sensational news and the whole might of the State,
especially the police, jumps in to catch the culprit, there is pressure of public opinion even on the
judge trying the case. The effect is electric.

On the other hand, in the case of a book pirate, the police justify their inaction by pointing to
murder dockets; the State deflects the desperate appeals of Copyright owners with nonchalance
and the judge sits with a `so what' attitude while the man on the street remains in stark oblivion.

"The copyright does not protect the idea but it does protect the skill and the labour put in by the
authors in producing the work. A person cannot be held liable for infringement of copyright if he
has taken only the idea involved in the work and given expression to the idea in his own way.
Two authors can produce two different works from a common source of information each of
them arranging that information in his own way and using his own language. The arrangement of
the information and the language used should not be copied from a work in which copyright
subsists."

Before I conclude, I must make it clear that despite the variety of cases given in this paper, there
is not much piracy of books in India. By and large, to save their business interests, publishers and
distributors try to enforce copyright to the best of their abilities. Yet, piracy hurts them hard
because the books which get pirated invariably are the few with good margin and high demand.
Deprived of the profits from such bestsellers the book industry starved of the much needed
capital for growth and investment in literary works of significance but low sales potential,
especially by up-coming authors. Harsher measures are therefore needed to curb piracy.

Another area of copyright infringement which needs to be tightened up relates to protection of

author's rights vis-a-vis the assignee or the licensee. There is need to develop a model contract,
too, which should also provide protection for the author's rights in the fast changing scenario of
electronic publishing, Internet, etc.

74
CONCLUSION
The provisions of the abovementioned two enactments show that the Copyright protection in
India is strong and effective enough to take care of the Copyright of the concerned person. The
protection extends not only to the Copyright as understood in the traditional sense but also in its
modern aspect. Thus, on-line copyright issues are also adequately protected, though not in clear
and express term. To meet the ever- increasing challenges, as posed by the changed
circumstances and latest technology, the existing law can be so interpreted that all facets of
copyright are adequately covered. This can be achieved by applying the purposive interpretatio
technique, which requires the existing law to be interpreted in such a manner as justice is done in
the fact and circumstances of the case. Alternatively, existing laws should be amended as per the
requirements of the situation. The existing law can also be supplemented with newer ones,
specifically touching and dealing with the contemporary issues and problems. The Information
Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to
meet the challenges posed by the Intellectual Property Rights regime in this age of information
technology. Till the country has such a sound and strong legal base for the protection of
Intellectual Property Rights, the judiciary should play an active role in the protection of these
rights, including the copyright. The situation is, however, not as alarming as it is perceived and
the existing legal system can effectively take care of any problems associated with copyright
infringement.

75
BIBLIOGRAPHY

Important Bills on Copyright laws in India:

Copyright Amendment Bill 2012 on:
1) Provisions for Persons with Disabilities

2) Extension of Fair Dealing to All Works

3) Term of Copyright for Photographs has increased.

Articles, Writing And Others:

1. Daniel A. Tysver. "Works Unprotected by Copyright Law". Bitlaw.

2. Lee A. Hollaar. "Legal Protection of Digital Information". p. Chapter 1: An Overview of
Copyright, Section II.E. Ideas Versus Expression.
3. Copyright, University of California, 2014, retrieved 2014-12-15
4. http://www.jetlaw.org/publish/journal-conventions/
5. 17 U.S.C. 106, United States of America, 2011, retrieved 2014-12-15
6. "International Copyright Law Survey". Mincov Law Corporation.
7. Copyright in Historical Perspective, p. 136-137, Patterson, 1968, Vanderbilt Univ. Press
8. Bettig, Ronald V. (1996). Copyrighting Culture: The Political Economy of Intellectual
Property. Westview Press. p. 917. ISBN 0-8133-1385-6.
9. Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar
Publishing. p. 13. ISBN 978-1-84542-282-0. Archived from the original on 19
November 2011.
10. "Statute of Anne". Copyrighthistory.com. Retrieved 2012-06-08.
11. Frank Thadeusz (18 August 2010). "No Copyright Law: The Real Reason for Germany's
Industrial Expansion?". Der Spiegel. Retrieved 11 April 2015.
12. "Berne Convention for the Protection of Literary and Artistic Works Article 5". World
Intellectual Property Organization. Retrieved 2011-11-18.
13. Garfinkle, Ann M; Fries, Janet; Lopez, Daniel; Possessky, Laura (1997). "Art
conservation and the legal obligation to preserve artistic intent". JAIC 36 (2): 165179.

76
14. "International Copyright Relations of the United States", U.S. Copyright Office Circular
No. 38a, August 2003.
15. Parties to the Geneva Act of the Universal Copyright Convention Archived 25 June 2008
at the Wayback Machine. as of 2000-01-01: the dates given in the document are dates of
ratification, not dates of coming into force. The Geneva Act came into force on 16
September 1955, for the first twelve to have ratified (which included four non-members
of the Berne Union as required by Art. 9.1), or three months after ratification for other
countries. "Archived copy" (PDF). Archived from the original (PDF) on 25 June 2008.
Retrieved 2007-01-29.
16. 165 Parties to the Berne Convention for the Protection of Literary and Artistic Worksas
of May 2012.
17. MacQueen, Hector L; Charlotte Waelde; Graeme T Laurie (2007). Contemporary
Intellectual Property: Law and Policy. Oxford University Press. p. 39. ISBN 978-0-19-
926339-4.
18. 17 U.S.C. 201(b); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)
19. "Copyright Ownership: Who Owns What? - Copyright Overview by Rich Stim -
Stanford Copyright and Fair Use Center". fairuse.stanford.edu. Retrieved 2017-05-09.
20. "Copyright Ownership: Who Owns What? - Copyright Overview by Rich Stim -
Stanford Copyright and Fair Use Center". fairuse.stanford.edu. Retrieved 2017-05-09.
21. Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related
rights. Greenwood Publishing Group. p. 346. ISBN 978-0-275-98883-8.
22. World Intellectual Property Organization. "Understanding Copyright and Related
Rights" (PDF). WIPO. p. 8. Retrieved 11 August 2016.
23. Simon, Stokes (2001). Art and copyright. Hart Publishing. pp. 4849. ISBN 978-1-
84113-225-9.
24. Express Newspaper Plc v News (UK) Plc, F.S.R. 36 (1991)
25. "Subject Matter and Scope of Copyright" (PDF). copyright.gov. Retrieved 4 June 2015.
26. "Copyright in General (FAQ)". U.S Copyright Office. Retrieved 11 Aug 2016.
27. "Copyright Registers" Archived 5 October 2013 at the Wayback Machine., United
Kingdom Intellectual Property Office

77
28. "Automatic right", United Kingdom Intellectual Property Office.
29. See Harvard Law School, Module 3: The Scope of Copyright Law. See also Tyler T.
Ochoa, Copyright, Derivative Works and Fixation: Is Galoob a Mirage, or Does the
Form(GEN) of the Alleged Derivative Work Matter?, 20 SANTA CLARA HIGH TECH. L.J.
991, 9991002 (2003) ("Thus, both the text of the Act and its legislative history
demonstrate that Congress intended that a derivative work does not need to be fixed in
order to infringe."). The legislative history of the 1976 Copyright Act says this difference
was intended to address transitory works such as ballets, pantomimes, improvised
performances, dumb shows, mime performances, and dancing.
30. Jump up^ Copyright Act of 1976, Pub.L. 94553, 90 Stat. 2541, 401(a) (19 October
1976)
31. The Berne Convention Implementation Act of 1988 (BCIA), Pub.L. 100568, 102 Stat.
2853, 2857. One of the changes introduced by the BCIA was to section 401, which
governs copyright notices on published copies, specifying that notices "may be placed
on" such copies; prior to the BCIA, the statute read that notices "shall be placed on all"
such copies. An analogous change was made in section 402, dealing with copyright
notices on phonorecords.
32. Taylor, Astra (2014). The People's Platform:Taking Back Power and Culture in the
Digital Age. New York City, New York, USA: Picador. pp. 144145. ISBN 978-1-250-
06259-8.
33. "U.S. Copyright Office Information Circular" (PDF). Retrieved 2012-07-07.
34. 17 U.S.C. 401(d)
35. Taylor, Astra (2014). The People's Platform: Taking Back Power and Culture in the
Digital Age. New York, New York: Picador. p. 148. ISBN 978-1-250-06259-8.
36. Owen, L. (2001). "Piracy". Learned Publishing. 14: 67
70. doi:10.1087/09531510125100313.
37. Butler, S. Piracy Losses "Billboard" 199(36)
38. Tobias Kretschmer & Christian Peukert (2014). "Video Killed the Radio Star? Online
Music Videos and Digital Music Sales". Social Science Electronic
Publishing. ISSN 2042-2695. SSRN 2425386.

78
39. Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related
rights. Greenwood Publishing Group. p. 346. ISBN 978-0-275-98883-8.
40. Tom G. Palmer, "Are Patents and Copyrights Morally Justified?" Accessed 5 February
2013.
41. "U.S Copyright Office Copyright Law: Chapter 1" (PDF). Retrieved 2012-06-27.
42. The Duration of Copyright and Rights in Performances Regulations 1995, part II,
Amendments of the UK Copyright, Designs and Patents Act 1988
43. Nimmer, David (2003). Copyright: Sacred Text, Technology, and the DMCA. Kluwer
Law International. p. 63. ISBN 978-90-411-8876-2. OCLC 50606064.
44. "Copyright Term and the Public Domain in the United States.", Cornell University.
45. See Peter B. Hirtle, "Copyright Term and the Public Domain in the United States 1
January 2015" online at footnote 8 Archived 26 February 2015 at the Wayback Machine.
46. Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. Rev. 1057, 1065 (2001)
47. (2012) Copyright Protection Not Available for Names, Titles, or Short Phrases U.S.
Copyright Office
48. "John Wiley & Sons Inc. v. Kirtsaeng" (PDF).
49. "US CODE: Title 17,107. Limitations on exclusive rights: Fair use". .law.cornell.edu.
2009-05-20. Retrieved 2009-06-16.
50. Copyright Law of the USA, Chapter 1 Section 121
51. "Copyright (Visually Impaired Persons) Act 2002 comes into force". Royal National
Institute of Blind People. 1 January 2011. Retrieved 11 Aug 2016.
52. WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual
Property Organization. 2004. p. 15. ISBN 978-92-805-1271-7.
53. WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual
Property Organization. 2004. p. 8. ISBN 978-92-805-1271-7.
54. WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual
Property Organization. 2004. p. 16. ISBN 978-92-805-1271-7.
55. "Creative Commons Website". creativecommons.org. Retrieved 24 October 2011.
56. Rubin, R. E. (2010) 'Foundations of Library and Information Science: Third Edition',
Neal-Schuman Publishers, Inc., New York, p. 341

79
 APPENDICES

Appendix-1

Form IV - Application for Registration of Copyright

To,

The Registrar of Copyrights

Copyright Office

New Delhi- 110 001.

Sir,

In accordance with Section 45 of the Copyright Act, 1957 (14 of 1957), I hereby apply for
registration of Copyright and request you that entries may be made in the Register of Copyrights
in the enclosed Statement of Particulars sent herewith in triplicate.

I also send herewith completed the Statement of Further Particulars relating to the work.

(For Literary, Dramatic, Musical and Artistic works only)

2. In accordance with Rule 16 of the Copyright Rules, 1958, I have sent by prepaid registered
post copies of this letter and of the enclosed Statement(s) to other parties concerned, as shown
below:

Name and addresses of the parties Date of dispatch

See columns 7, 11, 12 and 13 of the Statement of Particulars and the party referred in Col. 2 (e)
of the Statement of Further Particulars.)

3. The prescribed fee has been paid, as per details below:-

4. Communications on this subject may be addressed to: -

80
5. I hereby declare that to the best of my knowledge and belief, no person, other than to whom a
notice has been sent to as per paragraph 2 above has any claim or interest or dispute to my
copyright of this work or to its use by me.

6. I hereby verify that the particulars given in this Form and in the Statement of Particulars and
Statement of Further Particulars are true to the best of my knowledge, belief and information and
nothing has been concealed therefrom.

Yours faithfully,

Signature by the applicant

List of enclosures:

Place:

Date:

Statement of Particulars

(to be sent in triplicate)

1. Registration No. (to be filled in by the Copyright Office)

2. Name, address & nationality of the Applicant

3. Nature of the Applicants interest in the Copyright of the work

4. Class and description of the work

5. Title of the work

6. Language of the work

81
7. Name, address & Nationality of the Author and if the author is deceased, the date of decease

8. Whether the work is published or unpublished

9. Year and Country of first publication (Name, address and nationality of the publisher)

10. Years and countries of subsequent publications if any, and name, addresses and nationalities
of the publishers

11. Names, address and nationalities of the owners of various rights comprising the copyright in
the workand the extent of rights held by each, together with the particulars of assignments and
licence, if any

12. Names, addresses and nationalities of other persons if any, authorised to assign or licence the
rights comprising the copyrights

13. If the work is Artistic the location of the original work, including name and address and
nationality of the person in possession of the work, (in case of an architectural work, the year of
completion of the work should also be shown).

13A. If the work is an Artistic work which is used or is capable of being used in relation to any
goods, the application should include a certification from the Registrar of Trade Marks in terms
of the proviso to Sub-Section (i) of Section 45 of the Copyright Act, 1957.

14. Remarks, if any

Signature of the Applicant

Place:
Date:

82
Statement of Further Particulars: Application for Copyright Registration.

(To be sent in triplicate)

(For Literary, Dramatic, Musical and Artistic works only)

1. Is the work to be registered

a. an original work?
b. a translation of a work in the public domain?
c. A translation of a work in which Copyright subsists?
d. an adaptation of a work in the public domain?
e. an adaptation of a work in which Copyright subsists?

2. If the work is a translation or adaptation of a work in which Copyright subsists:

a. Title of the original work

b. Language of the original work
c. Name, address and nationality of the author of the original

work and if the author is deceased, the date of decease

d. Name, address and nationality of the publisher, if any,

of the original work

e. Particulars of the authorization for a translation or adaptation

including the name, address and nationality of the party

authorizing:

3. Remarks, if any

83
Signature
Place:
Date:

Instructions for filling up the Statement of Particulars annexed to Form IV for the Registration of
Copyrights

Col.3:- State whether the applicant is the author or publisher of the work or whether he/she is the
owner assignee or licencee of any right comprising the copyright in the work or whether he has
any other interest in the work.

Col.4:- State whether the work is "Literary work" or "Dramatic Work" or "Musical work" or
"Computer Software work" or "Artistic Work" or "Cinematograph Film" or "Sound Recording",
[see sub- section (i) of Section 13]. Describe in brief the nature of the work (i.e. Drama, Novel,
Biography, Poems, Lecturers Opera, Painting, Engraving, Photograph, Disco tapes, etc.)

Col. 5 In regard to a work, a title must be given.

Col. 6 If the work is in more than one language, all the languages should be shown.

Col. 7 For the definition of Author see clause d of Section 2. Moreover, irrespective of the
personwho gave the ideas or suggestions, the author is the person who has actually drawn or
executed the work in question.

Col. 8 For definition of Publication see Section 3 of the Act, and if the work is posthumous
work, see sub-section (2) of Section 24.

Col. 9 If a work is published simultaneously in more than one country, state particulars of
countries in which it is published and the exact date of publication (and not merely the year of
publication) in each country. For meaning of simultaneous publication see section 5.

Col. 10 In case of subsequent publication, state briefly the changes, if any, made in the first
publication.

84
Col.11 For the rights comprising the Copyright, see Section 14. If the rights are owned
separately by different persons the rights of each person should be stated separately, including
the extent of rights held by each person. In the case of a Cinematograph Film or Sound
Recording also state in full particulars (viz. full names, addresses and nationalities) of the
owners of Copyright of the work recorded in the Sound Recording like the composers, lyricists,
story writers, etc.

Col. 2 State the Particulars of the persons other than those mentioned in Col. 11, authorized to
assign or licence the rights comprising the copyrights, if any.

Col.13 State where and with whom the original work is located. This information is required to
be supplied in case of artistic work as defined in Section 2 (c).

Col.13A In case an artistic work is used or is capable of being used in relation to any goods,
a Search Certificate from the Trade Marks Registry u/s 45 (1) of the Copyright Act, 1957 as
amended from time to time, has to be procured, and enclosed in original with the application for
registration of Copyright.

THE APPLICANTS/THEIR LEGAL REPRESENTATIVES MAY VISIT COPYRIGHT

OFFICE BETWEEN 2.30 PM AND 4.00 PM ON ANY WORKING DAY.

Second schedule to the Copyright Rules, 1958 (As amended from time to time) enlisting
various fee payable under the Copyright Act, 1957.

For a licence to republish a Literary, Dramatic, Musical or Artistic work Rs. 400/-
(Section 31, 31-A and 32-A) per work

Rs. 600/-
For licence to republish a Cinematograph Film (Section 31)
per work

Rs. 400/-
For a licence to republish a sound recording (Section 31)
per work

85
For a licence to perform an Indian work in public or to communicate the Rs. 200/-
work to the public by Broadcast (Section 31) per work

For an application for a licence to produce and publish a translation of a Rs. 200/-
Literary or Dramatic work in any Language ) (Section 32 & 32-A per work

For an application for registration or copyright in a:

Rs. 50/-
Literary, Dramatic, Musical or Artistic work
per work

Provided that in respect of a Literary or Artistic work which is used or is Rs. 400/-
capable of being used in relation to any goods (Section 45) per work

For an application for change in particulars of copyright entered in the

Register of Copyrights in respect of a:-

Rs. 50/-
Literary, Dramatic, Musical or Artistic work
per work

Provided that in respect of a literary or Artistic work which is used or is Rs. 200/-
capable of being used in relation to any goods (Section 45) per work

For an application for registration of Copyright in a Cinematograph Film Rs. 600/-

(Section 45) per work

For an application for registration of change in particulars of copyright

Rs. 400/-
entered in the Register of Copyrights in respect of Cinematograph film
per work
(Section 45)

For an application for registration of copyright in a Sound Recording Rs. 400/-

(Section 45) per work

For an application for registration of changes in particulars of copyright

Rs. 200/-
entered in the Register of Copyrights in respect of Sound Recording (Section
per work
45)

86
 Rs. 20/-
For taking extracts from the indexes (Section 47)
per work

Rs. 20/-
For taking extracts from the Register of Copyrights (Section 47).
per work

For a certified copy of an extract from the Register of Copyrights of the Rs. 20/-
indexes (Section 47) per work

For a certified copy of any other public document in the custody of the Rs. 20/-
Register of Copyright or the Copyright Board per work

For an application for prevention of importation of infringing copies (Section Rs. 400/-
53) per place of entry per work

Appendix-2

COMPOSITION OF COPYRIGHT ENFORCEMENT ADVISORY COUNCIL

Chairman
Additional Secretary, Department of Education, Ministry of Human Resource Development (Ex-
officio)

Vice-Chairman

Joint Secretary in-charge of Book Promotion and Copyright Division, Department of Education
(Ex-officio)

Members

1. Joint Secretary (Films), Ministry of Information & Broadcasting (Ex-officio)

2. Joint Secretary, Department of Electronics (Ex-officio)
3. Director General of Police, Government of Uttar Pradesh

87
 4. Director General of Police, Government of Andhra Pradesh
5. Director General of Police, Government of Gujarat
6. Director General of Police, Government of Punjab
7. Director General of Police, Administration of Chandigarh
8. Representative of the Federation of Indian Publishers, New Delhi.
9. Representative of Authors Guild of India, New Delhi.
10. Representative of the Federation of Publishers and Booksellers Associations in India,
New Delhi.
11. Representative of Film Federation of India, Mumbai
12. Representative of National Association of Software Service Companies, New Delhi
13. Representative of Phonographic Performance Limited, Mumbai.
14. Representative of Indian Performing Right Society Ltd., Mumbai
15. Representative of Cine Artistes Association, Mumbai

Appendix-3

COMPOSITION OF COPYRIGHT BOARD

Chairman
Mr.S. Ramaiah (Former Law Secretary to the Government of India)

Members

1. Joint Secretary-in-charge of Copyrights Ministry of Human Resource Development

Department of Secondary Education and Higher Education, Government of India
2. Joint Secretary and Legal Adviser in the Ministry of Law, Justice and Company Affairs)
dealing with Department of Secondary Education and Higher Education, Government of
India
3. Law Secretary, Government of Kerala
4. Law Secretary, Government of Karnataka
5. Law Secretary, Government of Rajasthan

88
6. Law Secretary, Government of West Bengal
7. Law Secretary, Government of Meghalaya
8. Law Secretary, Government of Maharashtra
9. Law Secretary, Government of Uttar Pradesh

89