IP is an intellectual work which is produced by intellectual human brain. Ex:-
Literary work, Musical work, inventions, etc. It is an intangible property. It
is described as property because it is capable of sale, purchase, mortgage, etc.
The owner if IP has rights over his intangible property. No one can make use of
IP without the consent of the owner.
In simple words, Intellectual property give rights of intangible property which
is non-physical and derives from ideas and skills and talent. IPR is made to
protect their rights and the infringement. Its object is to motivated other
authors, painters and artists to come forward to show their original skills
without being fear of that they will be copied by others.
And the rights which a
person enjoys with respect to his IP are his intellectual property rights. And
the law that protects the intellectual property rights is known as intellectual
property law. It is indispensable in nature which provide access to knowledge,
experience and expertise that results to mutual benefit to all.
- Copyright law protects the copyright of authors, musicians, etc.
- Patent law protects the inventions of the inventors.
- Trademark law protects the trademark.
In short and simple words, copyright is basically a right to copy. One is
allowed to copy the original work but only if the author give the permission to
Illustration:- 1. A is a painter who created a master piece, and showed it to
the his friend B, but B who is also a painter copied his idea and draws a same
piece and earn some revenue from it. Later when A get to know about the fact
that he copied his idea without his consent, then he sued him for infringement
Illustration:-2. X who is an author told his friend that he has written a book
on B.R Ambedkar and gave him a copy to read it and give him the feedback. His
Friend Z, published it without his consent. So this will also be a case of
infringement of Copyright.
Copyright is a term describing rights given to creators for their literary and
artistic works. It includes: literary works such as novels, poems, plays,
reference works, newspapers and database, films and artistic works such as
painting, drawings, photographs. It is an intellectual property, if a person
owns the copyright to something, then he is the only owner of it and also the
decider that who can copy it. In short, Copyright is to reproduce the work in
which copyright subsists.
According to Sec. 14 of the Copyright Act, 1957, copyright means the
exclusive right to do or authorize others to do certain acts in relation to:
- Literary, Dramatic or Musical Works
- Artistic works
- Cinematography film, and
- Sound recording.
Copyright is a creation of statute. According to present law there is no such
thing as a common law copyright. Sec. 16 of The copyright Act, 1957 says that
no person shall be entitled to copyright or any similar right in any work,
whether published or unpublished, otherwise than this Act.
The object of copyright law is to motivate the new ideas of the authors,
composers, painters and artists and to create the original work without the fear
of exploitation of their work or matter. The copyright laws by extending
economic benefits to authorship encourages writing original works. Today
copyright includes a variety of industries like: the information industry and
the entertainment industry and industrial designs.
The Copyright Act 1957, based
on Berne Convention and the copyright Act, 1911, which has been amended in 1983,
1984, 1992, 1994, 1999 and 2012. The 1957 Act has created a copyright Office and
a Copyright Board in India to facilitate registration of copyright and to settle
kinds of disputes arising under the act and for compulsory licensing of
copyright. The Act defines the infringement of copyright and provides civil and
criminal remedies against infringement.
Thought the amendment in the year 1994
was quite comprehensive, only minor changes were introduced through the
amendment made in 1999 and most of the changes were brought in the year of 2012
in the act.
Eastern book co. v Navin J. Desai (AIR 2001 Del 185)
The facts of the case are that applicant was the author of law publishing books
and the applicant developed a CD-ROM in which there are different case laws and
judgements and proceeding. And the software developed by the author is known as
SCC Online Supreme Court Case Finder which includes more than 84,000 cases headnotes. They claim that it is their copyright and no one can use and copy it
without their consent or permission.
Later, the applicant came to know about the fact that the respondent is copying
the matter from his software without his consent. The applicant claim that the
respondent is copying everything the headnotes, the judgements and even the font
and color everything. It was held in this case that there cannot be any monopoly
in the subject matter which the author has borrowed from public domain. Others
are at liberty to use the same material. The material in which no one has the
copyright is available to all.
The concept of copyright was first introduced with the passing of the Statute of
Anne in April 1710, which provides the protection of 14 years for works
published after commencement of the act. Further, various judicial
pronouncements developed the concept of copyright in Britain. and largely
through various juristic opinions.
And later, British System adopted the
Copyright Act of United States of America in 1790. It was provided for the
protection of books, maps, and charts for a period of 11 years from the first
publication, which could be renewed for a further term if the author was still
And The English copyright act of 1842, (a new era in the regime of
copyright law in England) expanded the scope and nature of copyright. In 1884,
an International Copyright Act was empower her Majesty to provide protection to
the authors of books and works of giving foreign jurisdiction.
Historical Background Of Copyright Law In India:
In India, the copyright law was introduced by the East India company regime in
1847 through an enactment. According to the 1847 enactment, Copyright is a term
which can be used for lifetime and even after the death of the author under some
In this Act, it was provided that under a contract of service
copyright in any encyclopedia, review, magazine, periodical work or work
published in a series of books or parts shall vest in the proprietor, projector,
publisher or conductor.
Infringing copies were deemed to be copies
of the proprietor of copyrighted work. Importantly, unlike today, copyright in a
work was not automatic. Registration of copyright was mandatory for the
enforcement of rights under the Act. However, the Act also specifically reserved
the subsistence of copyright in the author, and his right to sue for its
infringement to the extent available in law other than the 1847 Act.
In 1914, the Indian legislature enacted a new Copyright Act which extended most
portions of the United Kingdom Copyright Act of 1911 to India. It did makes
minor changes in the act.
- Firstly, it introduced criminal sanctions for copyright infringement (sections 7
- Secondly, it changes the scope of copyright; under section 4 the sole
the author to produce, reproduce, perform or publish a translation of the work
shall subsist only for a period of ten years from the date of the first
publication of the work.
The author, however, retained her sole rights if
within the period of ten years she published or authorized publication of her
work a translation in any language in respect of that language.
The 1914 Act was continued with minor adaptations and changes till the 1957 Act
was brought into force on 24th January, 1958.
Rights Of Copyright Owners
Copyright is a bundle of rights which includes:
- Economic Rights: rights of reproduction, communication to the
public, adaptation and translation of the work, assignment/licensing of
- Moral Rights; and
- Related Rights.
Section. 14: Economic Rights.
The rights conferred by Sec. 14 on a copyright owner are economic rights because
the exploitation of the work by the author by exercising these rights may bring
Indian express newspapers ltd. v. Jagmohan ( AIR 1985 BOM. 229)
In this case, the defendant made a stage play and a movie based on the articles
published by the plaintiff, namely, Kamla. According to plaintiff the entire
sequence of the events on which articles were bases have been bodily lifted and
taken by the defendants and converted into a film. Further, the entire film is
pure work of fiction and at the beginning of the film it has been clarified that
the characters in the film do not bear any resemblance to any real life
It was held that there cannot be a copyright in an event which has actually
taken place. There is a difference between the material upon which one claiming
copyright has worked and the product of the application of his skill, judgement,
labor and literary materials.
- Literary, Dramatic or Musical Work
- To reproduce the work
- To issue copies of the work to the public
- To make any cinematograph
- To make any translation/adaption of the work
- Computer Programme
- To do any of the acts specified in clause (a)
- To sell or give on commercial rental or offer for sale commercial rental
any copy of the computer programme,
- Artistic Work
- To reproduce the work
- To communicate the work to the public
- To issue copies of the work to the public
- To include the work in any cinematograph film
- To make any adaptation of the work
- Cinematograph Film
- To make any copy of the film, including a photograph of any image
- To sell or give on hire any copy of the film
- To communicate the film to the public
- To make any record embodying any recording in any part of the sound
track associated with the film by utilizing such sound track.
- Sound Recording
- To make any other sound recording embodying it,
- To sell or give on hire any copy of the sound recording,
- To communicate the recording embodied I the record to the public.
Indian performing right society v. Aditya Pandey and ors. on 28th July,2011
IPRS has its grievance against the channel for paying the royalty only to the
author and not to the lyrical or musical scores. So, the lyricist or musical
score appealed the petition in SC for the royalty and it was held in the court
that royalties need only to be paid to the defendants that is Adithya Pander &
others, and the appeal filed by the plaintiffs was thus dismissed.
Publication And Reproduction
According to Sec.3 of The Copyright Act, For the purposes of this act
publication means making a work available to the public, by issue of copies or
by communicating the work to the public.
There are two ways of publishing a work:
- By issue of copies of the work, or
- By communicating the work to the public.
Reproduction in sense of copyright is reproducing the original work or copying
it. Reproduction has different meanings in relation to different works. In case
of literary and dramatic work, it means copying a substantial part of the
work. In case of musical work, it will amount to a substantial copying of the
tunes and chords and bars. In case of artistic work, reproduction may be in
two dimensions or converting the two dimensions work into a three dimensional
form or vice versa.
- Right to make translation of the work
Like in right to translation, the author is copying the matter in any other
language. It means he is reproducing the work. But he is also creating the a
copyright like if I translated any book in any language then I have its
copyright no one can translate the same into the same language.
- Right to make Adaption of work
Adaption refers to the modification of a work from one type of work to another
type of work. And likewise in reproduction, In adaption also it has different
meaning in relation to different works. In Literary work it means the
conversion of work into a dramatic work by pictures or actions or anything. In Dramatic work it means the conversion into non dramatic work.
The Academy of General Education v Smt. B. Malini Mallya on December 5, 2007
In this case the plaintiff filed a petition against the respondent for using his
idea without any authorization and thus filed a petition for infringement of
copyright. But it was held by the court that, there can be no copyright in an
idea, subject matter, themes, plots or historical or legendry facts and
violation of the copyright in such cases is confined to the manner and
arrangement and expression of the idea by the author of the copyrighted work.
There is no copyright in ideas, an adaption provides limited monopoly over the
idea of an author or composer or artist. 2. Where the same idea is being
developed in a different manner, it is manifest that the source being common,
similarities are bound to occur. In such a case the courts should determine
whether or not the similarities are on fundamental or substantial aspects of the
mode of expression adopted in the copyrighted work.
If the defendant's work is
nothing but a literal imitation of the copyrighted work with some variations
here and there it would amount to violation of the copyright. In other words, in
order to be actionable the copy must be a substantial and material one which at
once leads to the conclusion that the defendant is guilty of an act of piracy.
Sec. 57: Moral Rights
Moral rights are also known as droit moral (which is originated in French
law). Moral rights are available to the authors even after the economic rights
There are 3 kinds of moral rights:
- Right of Paternity: It means that an author has a right to claim the
authority of his work and can prevent all others from claiming authorship of
his work. He can also prevent others from using his name in their works.
- Right of Integrity: It means that an author has a right to prevent
distortion or other alteration of his work, or any other relation which
harms the work of author or harms his own reputation.
- Right to Retraction: This is the right to withdraw from publication
ones work if the author feels that due to passage of time and changed
opinion, it is advisable to do so.
Sec. 57 of the Copyright Act, 1957 recognizes the authors right to claim
authorship of his work. The right is independent of his economic copyright and
subsists even after the assignment of copyright in the work. The performers have
not been extended moral rights and the same are limited to authors.
Sec. 57 reads as:
- Independently of the author's copyright, and even after the
assignment either wholly ,or partially of the said copyright, the author
of a work shall have the right to claim the authorship of the work as
well as the right to restrain, or claim damages in respect of:
- Any distortion, mutilation or other modification of the said work; or
- Any other action in relation to the said work which would be prejudicial
to his honour or reputation.
- the right conferred upon an author of a work by sub-section (1),
other than the right to claim authorship of the work, may be exercised
by the legal representatives of the author.
Amarnath Sehgal v Union of India [2005 (30) PTC 253]
In this case, the plaintiff who was a famous sculptor kept his master piece in
Vigyan Bhawan for decoration the work remained there from 1962 to 1979. In 1979,
the government proposed to remove the mural without plaintiffs permission and
in the process of removal, due to mishandling the mural got damaged and lost its
aesthetic and market value.
The court passed mandatory injunction against the UOI directing it to return the
mural to the plaintiff within two weeks from the date of judgement. The court
also granted damages to the tune of 5 lacs and cost of suit to him against the
Author And Ownership Of Copyright (Sec. 17)
An author is the person who actually writes, complies, composes or draws the
work along with the idea of the work which may have been suggested by another.
An author is the original creator of the work. An author is the only one who has
Ownership of copyright in a work is quite independent of the ownership of the
physical material in which the work is fixed. A person who owns a book or its
manuscript is not necessarily the owner of the copyright therein. He might the
owner of the book by purchasing it but not the original creator or the owner of
Sec. 2(d) of the act defines author and reads as: author means:
- In relation to literary or dramatic work, the author of the work.
- In relation to a musical work, the composer.
- In relation to an artistic work other than a photograph, the artist.
- In relation to a photograph, the person taking the photograph.
- In relation to a cinematograph film, the owner of the film at the time
of its completion.
- In relation to a record, the owner of the original plate from which the
record is made, at the time of the making of the plate.
Ownership of work produced with computers:
The computer programme or the literary work incorporated in computer programme
can be of two types:
- computer aided
- computer generated
In case of computer generated work, Sec. 2(d)(vi) lays down that author in
relation to a computer generated work is the person who causes the work to be
created. However, the literary work, be it a computer programme or not, if it is
only computer aided, it will have to be determined by Sec. 2(d)(i) and the
person who has written the programme would be the author.
Joint authorship means a work produced by two or more authors in which the
contribution of one author is not distinct from the contribution of the other
author or authors [Sec. 2 (z)]. It is necessary for the authors to have common
design and idea and co-operation in carrying out the idea to constitute a
joint-authorship. A person who only suggests the idea or subject matter of the
work cannot be considered a joint author.
The following conditions are necessary to constitute joint authorship:
- It is necessary to show that each of the author contributed in the
making of the work but it is not necessary that the authors should
contribution to be in equal proportions or equal amount.
- There should be a process of collaboration between the authors.
- For a work to be jointly authored the respective contributions must not
be distinct or separate from each other. In other words, the contributions
must merge to form an integrated whole, rather than a series of distinct
works, no author would be able to point a substantial part of the work and
say that is mine.
Dabur India Limited vs Shree Baidyanath Ayurved Bhawan ... on 2 July, 2012
In this the plaintiff who was a packaging company packed things for different
companies. Plaintiff came to know about the fact that the defendant has adopted
the latest packaging which is as similar to plaintiffs packaging in terms of
overall colors, and layout, get up and trade dress.
And according to plaintiff,
it is done by the defendant for commercial gain. And the plaintiff also believed
that the defendant is aware that the products are purchased by wide spectrum of
consumers including consumers from different sections like middle class, high
class and low middle class.
And further, it was held by the court that the
infringement was intentional and deliberate, then a party who is infringing the
rights of the rightful owner normally loses its rights to challenge the validity
of the titles on the basis an action is taken, the Court under these
circumstances should be more positive in granting protection than in normal
cases. Defendant was fined with Rs. 20,000.
Term Of Copyright
Before passing of the Copyright (Amendment) Act, 1992 the term was 50 years
after the death of the author. But now it is 60 years after the death of the
author. But the 60- year rule does not apply to the authors of cinematographic
films, records, photographs, etc. because the authors in these cases are usually
corporate persons, associations or companies and not individuals. It may be
noted that on the expiration of the term of protection, the work falls in public
Every person can use such open works. But a work adapted from an open
work enjoys a fresh copyright from the time the new work is done and as a new
work. The limited term of the copyright applies only in case of published works.
Thus, where a literary, dramatic, etc. is unpublished, copyright would subsist
for an unlimited term. There is copyright protection from the time the work is
created even though it remains unpublished.
Term of copyright in photographs (Sec. 25)
In case of photograph, copyright shall subsist until 60 years from the beginning
of the calendar year next following the year in which the photograph is
Term of copyright in cinematograph films (Sec. 26)
Copyright shall subsist until 60 years from the beginning of the calendar year
next following the year in which the film is published.
Term of copyright in sound recordings (Sec. 27)
Copyright shall subsist until 60 years from the beginning of the calendar year
next following the year in which the work is first published. The copyright
period would commence only from publication.
Term of copyright in government works/public undertakings (Sec. 28)
Copyright shall subsist until 60 years from the beginning of the calendar year
next following the year in which the work is first published.
Term of copyright in works on international organization (Sec. 29)
Where the organization is the first owner of the copyright, the copyright shall
subsist until 60 years from the beginning of calendar year next following the
year in which the work is first published.
A license is an authorization of an act which, without such authorization would
be an infringement and considered unlawful in the eye of law. The author or the
copyright owner has the only right to grant a license with respect to his work.
The license may be exclusive or non exclusive. The term exclusive license has
been defined in the Act in Sec. 2(j) as a license which confers on the licensee
and persons authorized by him, to the exclusion of all other persons, any right
comprised in the copyright in the work.
There are basically two types of licenses contemplated in the Act. And they are:
- Licenses granted by the author: In this case, the author or the owner of
the copyright himself gives his consent to reproduce his work.
- Licenses grant under compulsion: it is a license requiring the copyright
owner to grant the necessary authorization.
There are some provisions in the act which defines the whole licensing:
- Sec. 31 which talks about the compulsory license to republish or perform
in public Indian works already published.
- Sec. 31A which talks about the compulsory licenses for the unpublished
works and their translations.
- Sec. 32 which talks about the compulsory license to produce and publish
translations of literary or dramatic works.
- Sec. 32A which is compulsory license to produce and publish literary,
scientific or artistic works
- Sec. 52(1)(j) which talks about the compulsory license for the
production of sound recording.
Acc. To Sec. 51 infringement of copyright is:
- When any person, without a license granted by the owner of the copyright
or the Registrar of Copyrights under this Act or in contravention of the
conditions of a license so granted or of any condition imposed by a
competent authority under this Act:
- Does anything, the exclusive right to do which is by this Act conferred
upon the owner of the copyright, or
- Permits for profit any place to be used for the communication of the
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; or
- When any person:
- Makes for sale or hire, or sells or lets for hire, or by way of trade
displays or offers for sale or hire, or
- Distributes either for the purpose of trade or to such an extent as to
affect prejudicial the owner of the copyright, or
- By way of trade exhibits in public, or
- Imports into India
To proof the infringement two elements must be there:
- Ownership of valid copyright.
- Copying of constituent elements of the work which are original.
In short, copyright is the right given by the law for a certain term of years to
an author, composer, etc. to print, publish and sell copies of his original
work. Copyright is right to copy. Its main object is to protect the author of
the copyright work from an unlawful reproduction or exploitation of his work by
others. It has amended so many time because of the advancement in the technology
and society. Copyright is a bundle of rights. Copyright provide 3 kinds of
rights to the author or the owner of the copyright that is:
- Economic rights
- Moral rights
- Related rights.
Further, the act talks about the licensing and infringement, when the author
voluntarily gives his consent to other to reproduce his work then it is
voluntarily license and when the author is obliged to give the consent then it
is compulsory license. Without the authorization there will be infringement.