"A good idea becomes a great idea when you let it all out
The intellectual property rights grant a great degree of protection under
various heads such as Trademark, patent, copyright, design, the geographical
indication of goods, etc. With a population of 1.38 billion, India has quality
artists, authors, and inventors and owing to its huge population it becomes very
difficult to make sure that every single idea conceived by an artist has its
protection. "Copyright" plays an important role in giving priority to an
individual's idea by granting protection to it.
As per the Copyright act, 1957,
a Copyright is a legal right that is given to a person for a limited time for
his authentic and original work for publishing, licensing, assigning etc. The
essential ingredient that fulfills the purpose of copyright is an "idea".
Without an idea, there can't be a subject claiming copyright. India is a
democratic country that gives everyone the power of speech and expression which
has lead to formation of a censor board for making sure that whatever is
portrayed in the media industry does not hurt any religious or cultural
feelings. A person is said to have a creative mind if he thinks outside the box
that is why the director is said to be an important part of a movie because of
the visualization he has for the movie. He knows from what angle the shot has to
be taken that goes in tandem with the script.
In the media industry, the fields
which get copyright protection are:
- Literary work
- Dramatic work
- Artistic work
- Musical work
- Cinematography work
After completing his story, an author approaches various production houses to
make a movie out of it. Production houses have a team of directors and producers
that would help the author in visualization and getting the final product. But
it may happen that a third person steals the author's script. Now, if the author
has copyright protection it would be easy for him to sue the party in the court
of law and demand damages and relief. But suing for unregistered copyright could
lead to nothing as copyright is distinctive and it is compulsory to have it
The function of Copyright in the Media Industry
Let us understand the basic function of the copyright from a layman's point of
view and why it is important. Suppose there is a western song that became a hit
in its native country and then some music director in India comes up with a
remake of the same tune after a few years. In such a situation, if that western
song has registered copyright then they can sue the music director under TRIPS
agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights)
and make a claim for the damages.
There was a song by Chris Brown "Turn up the
music" released on Feb 17, 2012. The music is quite similar to an Indian song
" by Himesh Reshammiya released on Nov 8, 2012. This case never went
to the court of law but if it did, it would have been a copyright infringement.
Let us understand certain acts that do not lead to copyright infringement. The
act that does not constitute an infringement is enshrined under section 52 of
the Copyright Act, 1957. Section 52, is based on the doctrine of "fair dealing
This doctrine creates an area of exception which technically grants certain
limitations to the exclusive rights of the copyright owner to maintain the
authenticity of the work. In India, the judiciary deals with an enormous volume
of workload because of the gigantic population we have, therefore, whenever any
case of copyright comes to the court of law, the doctrine of "fair dealing
applied and is determined on the following four factors:
- What is the actual use of the work?
- What is the nature of the work?
- What kind of amount is used in the work?
The effect of the use of the work based on the original
In the case of India TV Independent News Services Pvt. Ltd. vs Yashraj Films
the fact was that the appellants (India TV) made a show which
consisted of documenting the life of the singers. The defendants (Yashraj Films
Private Ltd) claimed that the documentation was quite similar to one of their
movies and it would amount to infringement of copyright. The appellant took the
defense of section 52 of the Copyright Act, 1957.
The Delhi high court dismissed
the defense and an injunction was granted against the appellant. They were
prohibited from producing and broadcasting. The court said, "The Rule of Law
loses its meaning if it does not run close to the Rule of Life", and applied the
four factors of "fair dealing". The court added, that with the amendment to the
Copyright Act as per the Copyright Amendment Act 2012 with effect from June 07,
2012, Section 52 of the Copyright Act stands amended and the defense of fair
dealing is now available even to derivative copyrightable works.
R.G. Anand vs M.S. Delux Films (AIR 1978 SC 1613)
There are times where judgment passed in a single case can define the entire
statute. For example, when we think of a violation of any fundamental right,
then in an instinct we are hit in our cerebral periphery with the case of
Kesavananda Bharati Sripadagalvaru & Ors. vs. State of Kerala & Anr.
Petition (Civil) 135 of 1970) or Maneka Gandhi vs Union Of India 1978 AIR 597,
1978 SCR (2) 621 that elucidates Article 21 of the constitution.
Anand vs M.S. Delux Films
is a case of copyright in the entertainment industry
which is contemplated as the main branch of the copyright system.
The facts are
"Hum Hindustani" was a play written by the plaintiff. In 1954, the defendant
wanted to make a movie based on the plaintiff's play, so they met for a
discussion. The defendant had not given any commitment to the plaintiff and soon
he (plaintiff) found out that the defendant had made a movie by the name of "New
Delhi". The plaintiff filed a suit against the defendants, claiming that they
had infringed his work. The case went to the district court and then to the high
court where it was rejected. When the case reached the Supreme Court, many
valuable points were laid down.
"A play is a dramatic work under Section 2(h) of the Copyright Act, 1957
- There can be no copyright in a thought, topic, subject, plot, or recorded or
universal reality, and infringement of the copyright in such cases is bound to
the structure, way and game plan, and articulation of the thought by the creator
of the protected work.
- The similarities have to be observed of the copyrighted work.
- Having the opinion of the viewer so that the work appears to be a copy of the
- Where the subject is the same but elucidated in a different manner, it will not
lead to an infringement.
- Broad dissimilarities along with similarities (if coincidental) will not lead to
- If the viewer has a reason to believe that there had been an infringement on a
large scale then the violation de facto would be void ab initio.
- In the case of a stage play, the burden of proof would always be on the
Power of court in Copyright (The Code Of Civil Procedure, 1908)
Along with the enormous workload, the judiciary also has enormous powers to deal
with it. In India, copyright issues are dealt with in various courts such as
district court, high court, and the Supreme Court. There are times when the
parties in dispute require a speedy trial so they can go for arbitration and
Under the Copyright Act, people who can file a suit for any kind of damage are
Copyright holders, exclusive licensees, or non-exclusive licensees. There are
two kinds of remedies provided to the parties:
Injunction/Command (Section 39, Specific Relief Act 1963)
An "Injunction" is a command that dictates the party to refrain from doing any
specific act. It is a remedy that is addressed to a person from commencing
something. It is of two types – temporary and permanent. Often there is an
ambiguity as to whether "Stay" and "Injunction" fall under the same category.
Well, the answer is no. Stay means "stoppage, apprehend, or suspension of
judicial proceedings while injunction means restraining a person from commencing
any act. Mulraj vs Murti Reghunathji Maharaj.
Anton Piller Orders
This order gives access to plaintiffs to search the premises of the defendants
for documents and articles. It also allows them to make copies or remove them to
a safer place if they have a reason to believe that the documents could be
demolished or tampered.
Jon Doe Order- ( Order 39 rule 1 and 2 of the CPC)
This order is given in the cases where the infringer is known/unknown. Jon Doe
is a pre-infringement injunction remedy provided to protect I.P.R. For example,
(in the cases where the infringer is unknown) if a person downloads a movie
illegally using VPN's to hide his identity, the plaintiff could reach the court
filing a suit against the ISP (Internet Service Providers) for the removal of
the movie and to claim for the damages. And in cases, where the infringer is
known you can simply write a notice of warning to the infringer or go to the
police and file an F.I.R.
*The police have the power to confiscate illegal belongings under section 64 of
the Copyright Act, 1957.
Quia Timet Actions:
In criminal law, we have "anticipatory bail", which means that when an accused
has a reason to believe that he might be arrested for a crime he had not
committed, he can apply for anticipatory bail. Similarly, in copyright when a
plaintiff anticipates infringing activities by the defendants, he could go up to
the court and ask for a "Quia Timet Actions" order.
Criminal remedies are enshrined under Chapter XIII of the Copyright Act:Penalty:
The term of imprisonment is mentioned under section 63 of the Copyright Act,
1957, which is not less than six months, and payment of a fine which could vary
from Rs 50,000 to Rs 200,000.
The penalty is enhanced in this offense. A person who is convicted of an offense
under section 63 of the Copyright Act and is again convicted of such offense
shall be punished with an imprisonment of 1 year that may be extended to 3
In India, we have a wide compass of laws pertaining to various fields. Evolution
is a natural concept, we observe, we adapt, and then we implement. Cybercrimes
have increased rapidly and the amendments are the protagonists of the system. In
simple terms, amendments in Intellectual Property Rights have made people safe
and they can implement an idea more freely. The authority which is given to the
police has made the system more transparent.
The Copyright Act, 1957 is not the
only statute that deals in protection. We have the Indian Penal Code,
Information Technology Act, Specific Relief Act, etc. Outside India, we have
treaties that grant us international protection such as the Berne Convention
1886, Universal Copyright Convention 1951, Rome Convention 1961, and WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS).
- The civil procedure with limitation act, 1963 by C.K Takwani
- Specific relief by Avtar Singh