THE INDIAN LAW INSTITUTE

SEMESTER ASSIGNMENT

INTELLECTUAL PROPERTY RIGHTS-I

PAPER CODE-004

Name of Student: Sourav Mandal

Class: LL. M. (Two Year Programme), 2nd Semester Roll No.: 06/LLM/09

______________________

Title of assignment: Permitted Acts in relation to Copyright

1

CONTENTS

I.

INTRODUCTION........................................................................................................03

II.

COMMON LAW EXCEPTIONS............................................................................04

III.

EXCEPTIONS TO THE INFRINGEMENT OF COPYRIGHT UNDER THE

INDIAN LAW.......................................................................................................05

a. Fair Dealing with Certain Works b. Permitted Reproductions c. Permitted Publications d. Permitted Performances and Recitations e. Exceptions in respect of Sound Recordings and Cinematographic Films f. Exceptions for Library Use g. Permitted Use of Artistic Works h. Permitted Uses of Computer Programmes i. Permitted Broadcasting IV. BIBLIOGRAPHY............................................................. ..............................20

Permitted Acts in relation to Copyright- An Assignment

__________________________________________________________________________________

The major premises behind the rationale of the copyright laws are to enable the author to exclude everyone and anyone in the society from copying the work of the author without his permission. But in certain circumstances it is possible; one of such circumstances is fair usage of the works. Major issues here are, what amounts to fair use, or to what extent of copying, the usage remains fair. The doctrine of fair dealing is being included in the copyright framework to satisfy the untoward public interest and give the masses, their legitimate right of enhancing their personality and character, which in turn leads to the further advancement of the society. For example, the work of a author is published in the form of a book, in such a case, anyone who is desirous in gathering the knowledge of that work, will have to do that, by paying a particular sum of money. This means that, knowledge and education is the exclusive domain of the haves, who are capable of buying such knowledge. But if it is so, it is wrong and the same cannot be jus tified by any parameter or notions of law and justice.

I.

INTRODUCTION

THE BASIC idea behind having permitted uses, under the Copyright Law, is to strike a balance between the interests of the intellectual on one side, and the general masses, i.e. the beneficiaries of the intellectual work, on the other side. So, at certain areas it is the masses, which have to shrink their interests and give way to the copyrighted owner of a particular work and vice versa. Any society consists of a mosaic of various diversities, largely classified under two categories for the purposes of intellectual property law. It is a inherent and inevitable fact of any society that, it is divided into two classes, first, the class of the intellectuals (who produce or create various kinds of works which have the potential of forming a new opinion or making some difference in the way of the already existing notions of the society) and secondly, the rest of the people, i.e. the general masses who are not doing anything like the former. Since, the copyright laws have been enacted, so that the legitimate interests of the authors of the following categories of works can be protected: 1. Original literary, dramatic, musical and artistic works, 2. Cinematograph films and

3. Sound recordings1 The principle of balancing the exclusive rights of the author/publisher in the work with the public interest in the free dissemination of all works got ensconced in the British legal system with the historic judgment of the House of Lords in the case of Donaldson v. Beckett2 in 1774. Since then, the common law countries including India have adhered to this principle of balance between the exclusive rights of the copyright owners and the interests of the society at large. This principle now finds place in the domestic laws of every nation3. The education, research opportunities, learning for the purposes of growing ones personality is not anyones personal domain, rather it is a matter of their legitimate right(s) of the masses because, through this the society as a whole achieves the larger goal of equality and advancement of its intellectual self.

II.

COMMON LAW EXCEPTIONS

The fundamental notion behind providing exceptional treatment by the common law courts to the certain categories of uses of copyrighted works is public interest. So, any kind of use of a copyrighted work, which is serving any public interest, is considered as an exception under the Common Law. But the common law protection is denied to a work of illegal, immoral or irreligious nature4, as it is found to be contrary to the notions of public interest. Therefore, no protection is provided to libellous, obscene, vulgar, blasphemous and fraudulent works. Fortunately or unfortunately, the Common Law Courts didnt provide any clear cut principles for such exclusions in the name of non-public acts. The court in Beloff v. Pressdram Ltd5 observed that, the courts may refuse to enforce a copyright on the grounds of public interest, even though there is no reference of the same in the Copyright Act. The scope of such denial is based upon misdeeds of a serious nature, such as breaches of national security or of law, frauds or matters destructive of the country or its people, including matters medically dangerous to the public to the public.

Section 13(1) of the Copyright Act, 1957 [subject matter of copyrighted works] 4 Burr 2408 3 V K Ahuja, Intellectual Property Rights in India (I) 251 (Lexis Nexis, 2009) 4 Supra note 3 5 (1973) 1 All ER 241
2

The concept of public interest depends upon public policy of the state. These are issues which never remain static or stagnant to any geographical boundaries, and are henceforth bound to change time and again from society to society. For example, in the US courts are of the view that, public has an over-riding interest in the prominent public figures6.

III.

EXCEPTIONS TO THE INFRINGEMENT OF COPYRIGHT UNDER THE INDIAN LAW

Copyright as such is exclusionary or a negative form of right. But there are certain works which do not amount to infringement of copyright, even when they are used, without authorisation from the copyright owner. These are the works which are provided statutory immunity. So, a copyrighted work can be used broadly in the following ways: 1. By taking the permission/licence from the copyright holder, or 2. By paying adequate/requisite compensation to the copyright owner, or 3. Without taking permission from the copyright holder, in case the nature and extent of such usage of the copyrighted work is a fair use, i.e. if it falls within the ambit of Section 52 of the Copyright Act, 1957 7. In case of the former two options, the scope and extent of the usage of the copyrighted work depends upon the discretion of the copyright holder, as he is supposed to take such a decision. In case of the later, there is no need to take any permission from anyone for the usage of the copyright work, provided that, the scope and extent of the usage of the copyrighted work falls within the statutory limitations prescribed by the Section 52 of the Act. This kind of a usage is known as fair use or fair deal or permitted use. But since section 52 also comprises of language, therefore the words are subject to the judicial interpretation. Such provisions are enacted for the purposes of balancing the rights of owners with the society as a whole. The Berne Convention 8 also provides the right of reproduction of protected works in special cases, provided the following two requisites are satisfied: 1. The reproduction does not conflict with the normal exploitation of the work, and
Rosemant Enterprises Incorp. v. Randon House Incorp., 1966 IInd Cir F 366; Times Incorporation v. Bernard Gees Association, 1968 F 293 Supp 130, the court justified defendants unauthorised duplication of several flames of a film called Zarpharder in its magazine regarding the assassination of John F Kennedy. 7 Hereinafter called the Act. 8 Article 9(2) bis
6

2. Such reproduction does not unreasonably prejudice the legitimate interests of the author. Now, what amounts to the violation of the legitimate interests of the author depends upon the legislative and the judicial thinking of a state. Only if the national law chooses to disregard one or both of the conditions laid down by the Article 9(2) bis would the member country be in the breach of the Convention 9. Permitted usage of the copyrighted works is prescribed under section 52 of the Act and the same can be understood under the following heads:

Certain works not to be infringement of copyright

a fair dealing with literary, dramatic, musical and artistic works

permited reproduct ions

permited publicatio ns

permited performa nce and recitation

exception s in respect of sound recording s and cinemato graph films

exception s for library use

permited use of artistic works

reconstru ction of work of architectu re

permited use of computer programs

permited broadcast ing

FAIR DEALING WITH CERTAIN WORKS The expression fair dealing is never defined in the Act, except explanation to the Section 52(1) (b) which states that the, publication of a compilation of addresses or speeches delivered in public is not a fair dealing of that work within the meaning of this clause.

S.M. Stewart, International Copyright and Neighbouring Rights 122 (Butterworths, London, 2 nd Edn., 1989)

Throughout all these years of the existence of the doctrine of fair dealing, in the world laws, it has been almost impossible to draw a hard jacket formula to restrict or define the scope and extent of Fair Dealing. The Justice Hand of the 2nd Circuit Court, in the US has described the doctrine of fair use as the most troublesome in the whole law of copyright 10. In Hubbard v. Vesper11, Lord Denning explained fair dealing as; You must first consider the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review that may be a fair dealing. If they are used to convey the same information as the author for a rival purpose, they may be unfair. Next you must consider the proportions. To take long extracts and make short comments may be unfair. But short extracts and long comments may be fair. Other considerations may come to mind also. But after all is said or done, it is all a matter of impression. The basis of the doctrine of fair dealing or fair use is to allow the public to reproduce or copy some portions of copyrighted works for the purposes of research, private study, criticism, news reporting, teaching, review etc12. The Fair Dealing with literary, dramatic, musical and artistic works for the following purposes does not constitute an infringement: 1. PRIVATE USE INCLUDING RESEARCH: Section 52 (1)(a)(i) of the Act provides private use of any literary, dramatic, musical and artistic works for any kind of private use or research work. Now, what kind of works fall under the ambit of private use or research works is for the courts to define and interpret. The Oxford English Dictionary defines research as, a search or investigation directed to the discovery of some fact by careful consideration or study of subject; a course of critical or scientific inquiry13. The term private use is said to include, study. The Federal Court of Australia, in De Garis v. Neville Jeffress Pidler Pvt. Ltd14 defined study as, the application of mind to the acquisition of knowledge, as by reading, investigation or reflection; a particular course of effort to acquire knowledge; a thorough
Deller v. Samuel Goldwyn, Inc., 104 F.2d 661 (2 nd Cir. 1939) (1972) 2 QB 84 12 Supra note 3 13 Oxford English Dictionary, vol VIII 14 (1990) 18 IPR 291
11 10

examination or analysis of a particular subject. In Blackwood and Sons Ltd. v. AN Parasuraman 15, the Madras High Court held that, dealing with a work for private study is such a dealing that does not involve any publication. Copinger states that, private study covers only the case of a student copying out of a book for his own use, but not the circulation of copies among other students 16. In Williams & Wilkins Co v United States17 the court held that it was fair use for the defendant to photocopy articles from plaintiffs medical journals for distribution to medical researchers because the copyright owner has not shown that it was or would be, substantially harmed by the practice. The test to determine, what amounts to fair use, is to find out whether the use is likely to harm the potential market or the value of the copyrighted work.18 In Ashdown v. Telegraph Group Ltd 19., the court laid down the following test: The authors suggest that the success or failure of the defence depends upon three factors: (1) whether the alleged fair dealing is in commercial competition with the owners exploitation of work, (2) whether the work has already been published or otherwise exposed to public and (3) the amount and importance of the work taken. 2. CRITICISMS OR REVIEW: Section 52 (1)(a)(ii) of the Act puts criticisms or review of any literary, dramatic, musical and artistic work under the category of fair use. If one has to criticise or review the work of someone, then the critic has to inevitably use some of the extracts or use certain substantial part of someones work. The reviewer or critic is not liable to for infringement, if he uses the extracts without permission from the author, i.e. the copyrighted owner. In the UK, under the section 30(i) of the Copyright, Designs and Patents Act, 198820 the protection provided to the critics or reviewers is subject to a condition that, he/she has to acknowledge the

AIR 1959 Mad 410 Kevin Garnett, QC; Gillian Davies et. al. (eds.), Copinger & Skone James on Copyright 773 (Sweet and Maxwell, 15th Ed. 2009) 17 487 F.2d 1345(1973) 18 Civic Chandran v Amini Amma 1996 Patent and Trademark Reporter 142; also held the same in Hubbard v Vosper (1972) 2 QB 84 (CA); Sony Corporation v Universal City Studios, Inc 464 US 417 (1984) 19 (2001) 4 All ER 666 20 Hereinafter referred as CDPA, 1988.
16

15

source of the extract that he/she is using while criticising or reviewing a particular work.

The objective of this provision is to protect a reviewer or a commentator who wants to use extracts from a work to illustrate his/her view, criticism, review or comment. So, the amount and extent of fair dealing varies from the facts and circumstances of various cases, as what is fair in one case, may be unfair in another. In Syndicate of Press, University of Cambridge v. Kasturi Lal & Sons 21, the Delhi High Court observed that, the verbatim lifting of the text to the extent of copying the complete set of exercise and the key to such exercises in no manner be termed as review, criticism or guide to the original work.

3. REPORTING OF CURRENT EVENTS: The Section 52(1)(b) excludes reporting by of current events by journalists or by normal citizens in a newspaper, magazine or similar periodical, or by broadcast or a cinematograph film or by means of photographs as outside the purview of infringing works.

To be a part of this exception, the events reported must be of current origin and not a matter of history. The exception is only limited to the extent of simple reporting of news and not to any kind of editorial writing or any form of sensational reporting for that matter. The doctrine of fair use is used as an affirmative defence and it is applied once it is established that the defendants work is, in fact substantially similar to the plaintiffs. It is an extraordinary flexible doctrine in the sense that its application typically turns on the particular facts in issue22.

21 22

(2006) 32 PTC 487 (Del.) Dr. Alka chawla, Copyright and Related Rights: National and International Perspectives 138 (Macmillan, New Delhi 2005)

PERMITED REPRODUCTIONS The following reproduction of work without the authorisation of the copyright owner is not infringement: 1. The reproduction of literary, dramatic, musical and artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding.23 Although the Act doesnt define, judicial proceedings. In the absence of any definition, this term may be given a wider meaning and it may include proceedings before any court, tribunal, enquiry commission or a person vested with the powers to hear, receive and examine evidence on oath24. In Eastern Book Co. v. Navin J. Desai25 the court held that: A work which is made or published under the direction or control of any court, tribunal or judicial authority in India is a government work. Under section 52(1)(q), the reproduction, publication of any judgment or order of a court, tribunal or judicial authority shall not constitute infringement of copyright of the government in these works. It is thus clear that, it is open to everybody to reproduce and publish the government work including the judgment or order of the court. However, if a person by the application of his sheer judgment and skill has produced commentaries on the judgement of the court, then it is entitled to copyright protection, because it is his original literary work. The orders and judgments of a court do not have any copyright, but it does not mean that, anyone can make a copy of that, merely on the ground that, he has published it at the first instance26. 2. The reproduction or publication of a literary, dramatic, musical and artistic works prepared by the secretariat of a legislature or where the legislature consists of two houses, by the secretariat of either house of the legislature, exclusively for the use of the members of the legislature.27 3. The reproduction of any literary, dramatic, musical and artistic work in a certified copy made or supplied in accordance with any law for the time being in force.28 4. The reproduction of a literary, dramatic, musical and artistic work29:
Section 52(1)(c) of the Act Supra note 3 25 2001 (21) PTC 57 (Del) 26 Supra. Note 10 27 Section 52(1)(d) of the Act 28 Section 52(1)(e) of the Act
24 23

10

a. By a teacher to the pupil in the course of instruction; b. As a part of the questions to be answered in an examination; c. In answers to such questions. The Act does not define, teacher and pupil. So, it needs to be interpreted broadly and the same depends and varies from case to case. But it simply describes a relationship based on good faith between a person, teaching to a set of student(s) who receive such instructions. 5. The reproduction in a newspaper or a magazine or other periodical of an article on the current economic, political, social or religious topics, unless the author of the article has expressly reserved to himself the right of such reproduction. 30

The reason for having this permitted use in the Act is to make more utilisation of the diminishing use of an article on the current topic. However, the Act takes care of the authors interest by providing that where the author has reserved to himself the right to reserve the article, n one else can reproduce it. 6. The reproduction, for the purpose of research or private study or with a view to the publication, of an unpublished literary, dramatic, musical works kept in a library, museum or other institution to which public has access.31 Provided that where the identity of the author of any such work or in the case of the work of joint authorship of any of the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause shall apply only if such reproduction is made at a time more than 60 years from the date of the death of the author, or in the case of the work of joint authorship, from the death of the author whose identity is known from the death of such authors who died last.32 7. The reproduction or publication of 33a. Any matter which has been published in the official gazette except an act of the legislature;

29 30

Section 52(1)(h) of the Act Section 52(1)(m) of the Act 31 Section 52(1)(p) of the Act 32 Id. 33 Section 52(1) (q) of the Act

11

b. Any act of a legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter. c. the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government; d. any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;

PERMITED PUBLICATIONS The following publications are not an infringement under the copyright Act: 1. The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists. Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years. [section 52(1)(g)]

Explanation.- In the case of a work of joint authorship, references in this claus to e passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person. The Act does not define the term educational institution. Further what is a short passage is also not defined. Therefore, it is a question of fact, degree and impression in which the surrounding circumstances are to be taken. The exception is only provided for literary and dramatic works34. 2. The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public is not an infringement of copyright. [section 52(1)(n)]

34

Supra note 3.

12

Delivery in relation to lecture includes delivery by means by any mechanical instrument or by broadcast. Only a report of a lecture can be made public, under this provision and not otherwise and not the entire lecture. 3. The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunderi. if no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or ii. where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public: Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government; [section 52(1)(r)] 4. the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture; [section 52(1)(s)] 5. the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access, [section 52(1)(t)]

PERMITED PERFORMANCE & RECITATION 1. The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recordings if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording. [section 52(1)(i)] The exception is wider in scope as the parents and guardians of the students also constitute part of the audience, so allowed. 2. The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.
13

Explanation:- For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage. [section 52(1)(za)]

Religious ceremonies are said to include marriage ceremonies and other social festivals. In Super Cassette Indistries v. Nirulas Corner House (P) Ltd.35, the Delhi High Court stated that, section 52(1)(za) is an exception to section 51. Such an exception involving the communication of a work to the public or of a sound recording, in the course of any bona fide religious ceremony is not a public performance.

EXCEPTIONS IN RESPECT OF SOUND RECORDINGS & CINEMATOGRAPHIC FILMS 1. The causing of a recording to be heard in public by utilising it,i. in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or ii. as part of the activities of a club or similar organisation which is not established or conducted for profit; iii. as part of the activities of a club, society or other organisation which is not established or conducted for profit; [section 52(1)(k)] Illustration: A sound recording is played in a common room of a university hostel. It is no infringement. But a sound recording played without authorisation from the producer in the lobby of a hotel, is an infringement.

Section 52(1)(k) is an exception to Section 51. In the section 52(1)(k)(i), the use of words as part of amenities provided is not clear. The major issue of contradiction is between section 52(1)(k)(i) and (ii), as non-profit purpose of the

institution/club/organisation is included in the clause (ii), whereas it is not clear in (i), that whether the residential viewers are supposed to pay anything in monetary terms for hearing the sound recordings. The only precondition involved here is, communication to the public. The exceptional use of terms, hotel or similar

35

(2008) PTC 237 Del, at 245

14

commercial establishment clearly establishes the legislative intention of excluding these premises from the purview of permitted acts. As far as the terms hotel or similar commercial establishment is to be interpreted restrictively. As held in Hubbard v. Vosper36, the House of Lords observed that, the proportions or quantum of usage is to be seen, before deciding the copyright infringement action. Therefore, for instance, the placing of a television or a radio set37 in an aircraft or a Tea Stall on roadside or a ship deck or any such place is not an infringement of any copyright of the sound recording. But if it is a tea stall, located within the hotel premises or such likely commercial establishment, then it is a violation of copyright of the owner of sound recording. 2. the inclusion in a cinematograph film ofi. any artistic work permanently situate in a public place or any premises to which the public has access; or ii. any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film Illustration: A draws and carves out a statue in a garden. While shooting for a cinema, a producer uses a scene, where the cine hero and heroine run around the statue in a romantic manner. The producer of the film has not infringed any copyright. 3. in relation to a literary, dramatic or musical work recorded or reproduced in any cinematograph film the exhibition of such film after the expiration of the term of copyright therein Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (a) of clause (b) and clauses (d), (f), (g), (m) and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgmenti. ii. identifying the work by its title or other description; and unless the work is anonymous or the author of the work has previously agreed or required that no acknowledgement of his name should be made, also identifying the author. [section 52(1)(y)] 4. the making of sound recordings in respect of any literary, dramatic or musical work, if:

36 37

(1972) 1 All ER 1072 Whereby communication to the public is obvious.

15

i.

sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work;

ii.

the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalities in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf:

Provided thati. no alterations shall be made which have not been made previously by or with the consent of the owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose of making the sound recordings; ii. the sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity; iii. no such sound recording shall be made until the expiration of two calendar years after the end of the year in which the first sound recording of the work was made; and iv. the person making such sound recordings shall allow the owner of rights or his duly authorise agent or representative to inspect all records and books of account relating to such sound recording: Provided further that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this clause, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty. [section 52(1)(j)]

Version recording means, sound recording made of an already published song by using another voices and with different musicians and arrangers. Version recording is neither a copy nor reproduction of the original recording. In Gramophone Company of

16

India Ltd v. Super Cassette Industries Ltd 38, the Delhi High Court held that, records made by the defendants were only a version recording by using another voice or voices and with different musicians and arrangers, which clearly falls within the scope of Section 52(1)(j). Therefore, consent was not required, in cases of version recording, in case the intention of the defendant is not making copies of the already published recording, but to make another sound recording by employing an entirely different set of musicians and singers. The only thing that the defendant uses in cases of version recording is the lyrics of the already published sound recordings. Therefore, section 52(1)(j)(ii) was an exception to the general provisions of the Act39.

EXCEPTIONS FOR LIBRARY USE The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of a person in charge of a public library for the use of such library if such book is not available in India. [section 52(1)(o)]

Illustration: The librarian buys a very costly book from an Indian shop. The shop has a number of copies of the book but the librarian chooses to make three Photostat copies of the book for the library. The librarian has infringed the copyright of the author of the book as the book is available in the bookshop.

PERMITED USE OF ARTISTIC WORK The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work, Provided that he does not thereby repeat or imitate the main design of the work. [Section 52(1)(v)]

RECONSTRUCTION OF A WORK OF ARCHITECTURE

(1995) PTR 64; where the defendant company launched a version of recording of the songs of Hindi Film Hum apke hai kaun. The plaintiff raised the contention that, the defendant by creating the version recording infringed the copyright of musical work in the film. 39 Gramophone Co. of India Ltd v. Mars recording Pvt Ltd., (2000) PTC 117
38

17

The reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed, Provided that the original construction was made with the consent or licence of the owner of the copyright in such drawings and plans. [Section 52(1)(x)]

Illustration: P demolishes his building in Delhi. P reconstructs the building making use of the original drawing or plan. P has not infringed the copyright of the architect, although has had not taken permission of the architect again before reconstruction40.

PERMITED USES OF COMPUTER PROGRAMS 1. The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy: i. in order to utilise the computer programme for the purposes for which it was supplied; or ii. to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied. [Section 52(1)(aa)] Illustration: A buys a computer programme. A copy of it is made into the RAM for running of the programme or for any repair. No infringement takes place. A makes a copy of the computer programme for his son, studying in Ahmadabad. A has infringed the copyright of the author off the computer programme41.

2. the doing of any act necessary to obtain information essential for operating inter operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available. [section 52(1)(ab)] 3. the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied. [section 52(1)(ac)]

40 41

Infra. Note 10 at page 145 Id.

18

4. The making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use. [section 52(1)(ad)]

Illustration: P buys a CD having application software. P makes copies of this CD and gives it as a gift to his friends. P has infringed the copyright of application software as his action though no-commercial is not for personal use. If P makes a backup copy for his personal library, no infringement takes place.

PERMITED BROADCASTING The making of an ephemeral recording, by a broadcasting organisation using its own facilities for its own broadcast by a broadcasting organisation of a work which it has the right to broadcast; and the retention of such recording for archival purposes on the ground of its exceptional documentary character. [Section 52(1)(z)] In Video Master v. Nishi Productions 42, the Bombay High Court rejected the argument of the plaintiff that the preparation of the Betachem cassettes by the defendants for the purpose of satellite broadcasting, infringed his copyright.

42

(23) IPLR 388 (1998)

19

BIBLIOGRAPHY

BOOKS 1. V K Ahuja, Intellectual Property Rights in India (I) 251 (Lexis Nexis, 2009) 2. S.M. Stewart, International Copyright and Neighbouring Rights 122 (Butterworths, London, 2 nd Edn., 1989) 3. Kevin Garnett, QC; Gillian Davies et. al. (eds.), Copinger & Skone James on Copyright 773 (Sweet and Maxwell, 15th Ed. 2009) 4. Dr. Alka chawla, Copyright and Related Rights: National and International Perspectives 138 (Macmillan, New Delhi 2005) CASES 1. Rosemant Enterprises Incorp. v. Randon House Incorp., 1966 IInd Cir F 366; 2. Times Incorporation v. Bernard Gees Association, 1968 F 293 Supp 130 3. Deller v. Samuel Goldwyn, Inc., 104 F.2d 661 (2 nd Cir. 1939) 4. Civic Chandran v Amini Amma 1996 Patent and Trademark Reporter 142 5. Hubbard v Vosper (1972) 2 QB 84 (CA) 6. Sony Corporation v Universal City Studios, Inc 464 US 417 (1984) 7. Gramophone Co. of India Ltd v. Mars recording Pvt Ltd., (2000) PTC 117 8. Video Master v. Nishi Productions (23) IPLR 388 (1998) 9. Gramophone Company of India Ltd v. Super Cassette Industries Ltd (1995) PTR 64 10. Super Cassette Indistries v. Nirulas Corner House (P) Ltd (2008) PTC 237 Del, at 245 11. Eastern Book Co. v. Navin J. Desai 2001 (21) PTC 57 (Del) 12. Syndicate of Press, University of Cambridge v. Kasturi Lal & Sons (2006) 32 PTC 487 (Del.) 13. Blackwood and Sons Ltd. v. AN Parasuraman AIR 1959 Mad 410 14. Williams & Wilkins Co v United State 487 F.2d 1345(1973) 15. Ashdown v. Telegraph Group Ltd (2001) 4 All ER 666 16. De Garis v. Neville Jeffress Pidler Pvt. Ltd (1990) 18 IPR 291 17. Beloff v. Pressdram Ltd (1973) 1 All ER 241 18. Donaldson v. Beckett 4 Burr 2408

20