Copyright Act, 1957 | Legal Reasoning for CLAT PDF Download

Introduction

Section 2(y) of this act defines “work” as follows -
Work means any of the following works, namely

• A literary, dramatic, musical or artistic works,
• A cinematograph film;
• A sound recording;

Different kinds of works 2(y)

This act also defines different kinds of works such as

• Artistic work
• Cinematographic film
• Dramatic work
• Literary work
• Musical work
• Sound recording

➢ Artistic work

• Sec.2 (c) defines artistic work means;- a painting, a sculpture, a drawing, an engraving or a photograph, work of architecture, any other work of craftsmanship.

➢ Cinematograph film

• See. 2(f) defines this, It 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.

➢ Dramatic work 

• See. 2(h) defines this, It includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement, or acting. It does not include a cinematograph film.

➢ Literary work

• Sec. 2(o) defines this, It includes computer programmes, tables and compilations including computer databases. Computer programme means set of instructions expressed in words, codes, schemes, or in any other form.

➢ Musical work

• Sec.2(p) defines this, It 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.

➢ Sound recording

• Sec.2(xx) defines this, It means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.

Works in which copyright subsists

According to sub-sec. (1) of see. 13 of the copyright act following arc the works in which copyright subsists throughout India

• Original literary, dramatic, musical and artistic work;
• Cinematographic film; and
• Sound recording.

According to sub-sec. (2) of sec. 13, the copyright subsists in the works specified in sub-sec (1) of sec. 13 if the following conditions are satisfied

• The work is first published in India.
• If the work is published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India.
• In the case of an unpublished work other than work of architecture, the author is at the date of making of the work a citizen of India or domiciled in India.
• In the case of work of architecture, the work is located in India.
• Copyright act is not concerned with the originality of idea, but with the expression of thought in print or writing. Original means that which originates from the author which may or May not be novel.
• There can not be a copyright in an event which has actually taken place .
• Even, In question paper the paper setter may have copied questions from textbook; but the work compilation involves labour and skill.

Works in which copyright does not subsist

According to sub-sec. (3) of sec. 13, copyright does not subsists 

• In any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
• In any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.

Meaning of copyright sec. 14 

it means the exclusive right to do or authorise the doing of any of the acts in respect of a work or any substantial part thereof as provided in section. 14 of the copyright art.

International copyright (Section 40 to 43 deals with this) 

➢ Central government has the power

• To extend copyright to foreign works.
• To apply chapter 8 of the copyright act, to broadcasting organisation and performers in certain other countries.
• To extend copyright to works of certain international organisations.
• To restrict rights in works of foreign authors first published in India.
• To restrict rights of foreign broadcasting organisations and performers.

Ownership of copyright (section 17)

First owner 

According to sec. 17 the AUTHOR of a work is the first owner of the copyright therein. Sec. 17 also provides for such circumstances in which it is not the author of a work but person other than the author who becomes the first owner of that work. Thus, according to sec. 17 ”first owners” of the copyright may be divided in two categories as follows;
1. Authors as first owner of the copyright;
2. Person other than the author as the first owner of the copyright.

Authors : According to section. 17 author is the first owner of the copyright of a work. The term AUTHOR means 

• The author of the work in relation to a literary or dramatic J work;
• The composer in relation to a musical work;
• The artist in relation to an artistic work other than a photograph; The person taking the photograph, in relation to a photograph; The producer in relation to cinematograph film or sound recording; and
• The person who causes the work to be created in relation to any literary, dramatic, musical or artistic work which is computer generated.

Persons other than the author as the first owner

Following are such classes of persons who though are not the authors, yet become the first owner of the copyright of a work under certain circumstances

• The proprietor of a newspaper, magazine or similar periodical. 
• The person who has paid valuable consideration for a work.
• The employer.
• The person who delivers or on whose behalf the speech is delivered or an address is made.
• Government in case of a government work.
• Public undertakings.
• International organizations.

Assignment of copyright sec.18

➢ Owner to assign the copyright

• According to section 18, the owner of the copyright of a work may assign any of the rights comprised in the copyright of his work to any other person. 
• Copyright may be assigned by the prospective owner of the copyright in a future work also. However, with respect to future work, the assignment takes effect only when the work comes into existence. 
• Assignor : The owner of the copyright who assigns the copyright to the other person is termed as assignor. 
• Assignee : To whom the owner of the copyright assigns any right comprised in the copyright.

➢ Modes of assignment (sec. 18)

• No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.
• The assignment in any work shall identify such work shall specify the rights assigned and the duration and territorial extent of such assignment.
• The assignment of copyright in any work shall also specify the amount of royalty and other consideration 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.
• Where the assignee does not exercise the right assigned to him under any of the other subsection of this section 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. 
• If the period of assignment is not slated, it shall be deemed to be 5 year from the date of assignment. 
• If the territorial extent of assignment of the right is not specified, it shall be presumed to extent within India.
• Nothing in sub-sec. (2) or sub-sec. (3) or (4), (5), (6) shall be applicable to assignments made before the coming into force of the copyright act, 1994.
• The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.
• No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
• No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilisation of such work in any form.

➢ Licence in a copyright

• Section. 30 to section 32B, provide for the grant of licence as follows
• Voluntary license by the owner of the copyright.
• Statutory licence.
• Compulsory licence by the registrar of copyright on the recommendation of copyright board.
• Licence by the copyright board. 

➢ Voluntary licence

• The owner of copyright In any existing work may grant any interest in the copyright to any other person, licences in a copyright is granted by the owner in writing by him or by his duly authorized agent.

➢ Statutory licence

• Statutory licence for cover version. Statutory licence for broadcasting of literacy and musical work and sound recording.
  (i) “Cover version”, means a sound recording made in accordance with sec. 31 C. This sec. permits the making of a cover version being a sound recording of any literary, dramatic or musical work. The sound recording is made with the licence or consent of the owner of the right in the earlier sound recording.
  The person making cover version of sound recording has to give prior notice of his intention to do so to the owner of the rights in each work. The royalties arc paid at the rates fixed by the copyright board in this behalf.
  The person making such cover version has to maintain registers and books of account with full details of existing stock. He has to allow the owner of rights to inspect all records and books of account relating to such sound recording.
  (ii) Licence for broadcasting of literay and musical works sec. 31D
  A literary or musical work and a sound recording which has already been published may be communicated to the public by way of a broadcast or by way of performance by any broadcasting organisation under section 31D of the copyright act.
  According to sec. 31D the broadcasting organisation has to give prior notice of its intention to broadcast such work to the owner of rights in each work. In this notice the broadcasting org. states the duration, territorial coverage and royalties to be paid to the owners of the rights in each work.

Compulsory licence

The compulsory licence arc granted by the Registrar of copyrights on the recommendation of the copyright board in the following circumstances;
(i) Licence in published works withheld from public
(ii) Licence in unpublished work
(iii) Licence for benefit of disabled

(i) Withheld from public - Sec. 31 provides for the compulsory licence in published or performed work for their re-publication or recommunication.
Sometimes an owner of a copyright in the published work may refuse to republish or re-communicate to the public the work without reasonable ground during the term of copyright. In such cases, a complaint may be made to the copyright board.
The board may hear the owner of the copyright and may also hold necessary inquiry. After hearing inquiry the board may direct the Registrar to grant a licence to such person who in the opinion of the copyright board, is or arc qualified to republish or recommunicate works which have been withheld from public.

(ii) Unpublished or published work - An author of an unpublished or published work, who is the citizen of India at the time of making the work, may die or become untraceable before his work is published. In such case any person may apply to the copyright board for a licence to publish such unpublished or published workor a translation thereof in any language. But the applicant has to advertise his proposal in a newspaper before he makes an application to the copyright board. After that copyright board holds the prescribed inquiry. After such inquiry, the board may direct the Registrar to grant to the applicant a licence to publish that unpublished Indian work.

(iii) Compulsory licence for benefit of disabled sec(31B) - This section has been added in copyright act by the copyright (Amendment) Act, 2012. This section has been added so that compulsory licence may be granted for the benefit of the disabled as expeditiously as possible. As section. 31 B(1) provides that an endeavour shall be made to dispose of an application for grant of licence for the benefit of the disabled within a period of 2 months from the date of receipt of the application. This sec. holds importance for visually impaired persons as they require copies of a work in a different format.

Licence by copyright board

According to section 32 any person may apply to the copyright board for a licence to produce and publish a translation of a literary or dramatic work in any language

• After a period of 7 year from the first application of the work
• After a period of 3 year if the work is other than an Indian work and such translation is required for the purposes of teaching, scholarship or reasearch;
• After a period of 1 year if the translation is in a language not in general use in any developed country.

➢ Registration of copyright

• The copyrights are registered by the Registrar of copyrights. For the registration of copyright, an application is made to the Registrar of copyrights under section 45 of the copyright act.
• Who can apply for registration : According to section 45(1), any of the following persons may apply for the registration of the copyright:
  (i) The author,
  (ii) Publisher,
  (iii) Owner of; or
  (iv) Other person interested in the copyright,
  The application is made in the prescribed form and is accompanied by the prescribed fee.
  On receipt of application for registration of copyright under sec. 45, the Registrar of copyright holds an inquiry. After the inquiry if he deems fit, he enters the particulars of the work in the Registrar of copyrights.
• The register of copyrights is kept at the copyright office under sec. 44 of the copyright act. In the register of copyrights are entered the names and addresses of authors, publishers and owner of copyrights.
• Section 45 entries in register of copyrights - There shall be kept at the copyright office a register in the prescribed form to be called the Register of copyrights in which may be entered the names or titles or works and the names and addresses of authors, publishers and owners of copyright and such other particulars as may be prescribed.

➢ Register of copyrights

• Form and inspection of register (sec.47) : According to section. 47 of the Register of copyrights and indexes thereof kept in the copyright office, shall at all reasonable times be open to inspection. Any person shall be entitled to take copies of, or make extracts from, such register or indexes as payment of such fee and subject to such conditions as may be prescribed.
• Register of copyrights to be prima facie evidence of particulars entered therein (section. 48) : According to sec. 48 the register of copyright is the prima facie evidence of the;
  (i) Particular entered therein;
  (ii) Documents purporting to be copies of any entries therein; or
  (iii) Extracts therefrom certified by the Registrar of copyright. Such certificate is to be sealed with the seal of the copyright office. Such certificate according to section. 48 shall be admissible in evidence in all courts without further proof or production of orignal.
• Correction of entries in the register and rectification of the register of copyright is corrected by the Registrar of the copyrights, (sec. 49, 50)
• Section 50A : Every entry made in the Register of copyrights or the particulars of any work entered under section 45, the correction of every entry made in such register under section 49, and every rectification ordered under section 50 shall be published by the Registrar of copyrights in the Official Gazette or in such other manner as he may deem fit.
• Registration of copyrights is not compulsory (sec.45) : In R. Madhavan vs. S.K Nayar A.I.R 1988 the Kerala High Court held that registration of copyright of a work under the act, is not compulsory. Therefore, registration is not a condition precedent for maintaining a suit for damages for infringement of copyright. Registration of copyright under the copyright act, is optional and provides only rule of evidence.

Infringement of copyright

➢ Infringement 

• Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright. Therefore, it is protected by law. Infringement of copyright, in this connection consists in the doing by any person without the consent of the owner of the copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.
• In R.G. Anand v. Delux Films A.I.R 1978 the Supreme court held that 'it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy’.
• One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original ”

➢ Acts deemed to be infringement of copyright (sec. 51)

• Copyright is a exclusive right of the owner. Other person can not do anything with respect to the copyright except with the consent of the owner of the copyright.
• The owner of the copyright may grant a licence with respect to any interest in the copyright in the favour of other person. Such licence may be granted by the Registrar in certain circumstances.
• A copyright is deemed to be infringed when any person, without a license granted by the owner does anything with respect to the copyright, (sec. 51(a))
• Infringing copy : The reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

Acts not deemed to be infringement of copyright (sec. 52)

It provides for different kinds of works and the acts with respect to such works which are not deemed to be infringement of copyright;
➢ Following are the works

• Works other than computer programme,
• Computer programmes
• The transient or incidental storage of a work or performance,
• Cinematograph film
• Painting, drawing, a work of architecture; or sculpture or any work of artistic craftsmanship

➢ Import

• Word import in sec. 51 and 53 means ‘bringing into India from outside India’, and is not limited to importation for commerce only, but includes transportation across the country.
• In Penguin books Ltd, England vs. M/s. India books distributors A.I.R 1985 : Certain books of British publication were imported from America and were sold in India. These books were imported from America and were sold in India. These books were imported into India without licence of its owner, for selling them in India. The Delhi High Court held that the import of these books was infringement of copyright under sec. 51 of copyright act, 1937.

Acts not deemed to be infringement of copyright in literary, dramatic, musical or artistic work

The works are as follows

(i) Fair dealing : According to sec. 52(1)(a), fair dealing with work does not constitute infringement of copyright in these works if it is for purpose of ;private use including research, criticism or review, whether of that work or any other work.
Similarly, fair dealing with the work does not constitute infringement of copyright in work if it is for the purpose of reporting current events;-
(a) In a newspaper, magazine, or similar periodical; or
(b) By broadcasting or in a cinematograph film or by means of photograph
A guide to a textbook is not infringement : Merely selecting passage from the original textbook and knitting them together in a guide book is not a infringement of copyright.
(ii) Reproduction : According to sec 52 followings works of reproduction of work is not infringement.

• Reproduction for judicial purpose,
• Reproduction by the Secretariat of the legislature, or, where legislature consist of two houses, fro the use of the legislature member,
• When reproduction is in certified copy made in accordance with any law for time being in force,
• When reproduction is: by teacher or a pupil in course of instruction, as a part of question to be answered in the examination,
• Reproduction in newspaper, magazine or other article on current economic, political, social, or religious topic,
• Reproduction for the purpose of research or private study
• Reproduction of any matter which has been published in any official gazette except an act of a legislature,
• Report of any committee, commission, council, board or other like body appointed by the legislature, unless such publication is prohibited by the government;
• The production or publication of translation in any Indian language of an act of legislature and of any rules or orders made thereunder is not an infringement of copyright of that lecture.

After the copyright (amendment) act, 2012, acc. 10 sec52(i)(b), the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public is not deemed to be an infringement of copyright in that work or performance.
Provided that if the person responsible for the storage of the copy has received a written complaint from the owner that such storage is an infringement, then such person shall refrain from facilitating such access for the period of 21 days or till he receive an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period, he may continue to provide facility of such access.
According to sec. 52(i)(y), inclusion of in artistic work in a cinematograph film is not an infringement if —

• That artistic work is permanently situated in a public place or any premises to which the public has access; or
• If the inclusion of that work is only by way of background or incidental to the principal matters represented in the film
• In relation to literary, dramatic or musical work recorded in any film, the exhibition of such film after the expiration of term of copyright therein does not constitute an infringement of copyright in that work.

➢ Remedies against infringement

• Infringed copy - section 53 of the copyright act prohibits the “import” of infringing copies of a work from outside India
  CIVIL REMEDIES (SECTION.54 to 64) According to section 53(1) of the copyright the owner of copyright is entitled to all civil remedies.
  Owner of copyright means who have an exclusive licence and right over that particular work.
  Civil remedies are as follows 
  (i) Injunction
  (ii) Damages
  (iii) Accounts
  (iv) Otherwise as are or may be conferred by law for the infringement of a right.
  However if the defendant proves that at the date of infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff is entitles to remedy of injunction only.
  The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court.
• According to sec.59, the owner of copyright in the work of architecture is not entitled to the remedy of “injunction”, if the construction of a building or other structure has commenced. The owner in work of architecture is not entitled to obtain an injunction to restrain the construction of such building or structure, or to order its demolition on the ground of infringement of his copyright in the work of architecture.
• Author’s special right (sec. 57): An author may have assigned his copyright in his work partially or wholly to another person, some others rights are
  (i) Claim to the authorship of his work,
  (ii) To restrain or claim damages in respect of any,
  (iii) Distortion, mutilation, modification

Criminal remedies

➢ Section 63 to 70

• Punishment for the offence if infringement of copyright
• Punishment for knowing use of infringing copy of computer programme
• Power of police to seize infringing copies
• Punishment for possession of plates for the purpose of making infringing copies
• Disposal of infringing copies or plates for the purpose of making infringing copies
• Punishment for circumventing technology measures
• For removal or alteration of any rights management information
• For making false entries in registers etc.
• For making false statement for the purpose of deceiving or influencing any authority or officer
• For contravention of section

➢ Appeal

• Appeal against certain order of magistrate;(sec.71): Any person aggrieved by an order of magistrate under sub-sec. (2) of sec.64, may appeal to the court to which appeals from the court making the order ordinarily lie. Whereas under sec. 64(2) a Magistrate passes an order with respect to the infringing copies or plates seized by a police officer not below the rank of sub-inspector under sec. 64(1).
• Appeals against the orders of Registrar of copyrights and copyright board (sec.72): According to sec.72(1), any person aggrieved by any final decision or order of the Registrar of copyrights may appeal to the copyright board. But this appeal is to be made within three months from the final decision or order of the Registrar of copyrights.
  Whereas any person aggrieved by the final decision or order of the copyright Board may appeal to the High Court under sec.72(2). The appeal is made to the High Court within whose jurisdiction the appellant;
  (i) Actually and voluntarily resides; or
  (ii) Carries on business; or
  (iii) Personally works for gain.
  However no appeal can bemade to the High court against the final decision or order of the copyright Board if this decision or order has been made under sec.72(1).
• Procedure for appeals (sec. 73): The High Court may make rules consistent with the copyright act, 1937, as to the procedure to be followed in respect of appeals made to it under sec. 72. According to section 78 of the copyright act, the Central Government any make rules for carrying out the purposes of the copyright act,1957,sub-sec(2) of sec.78 provides for the matters with respect to which the central Government may make rules. However, every rule made by the central government under sec.78(2) has to be laid as soon as after it is made, before each house of parliament may agree for the modification of the rule laid before it which has been made by the central government.
• The central government may, by notification in official gazette, make rules, namely
  (i) The salaries and allowance payable to and the other terms and condition of service of the chairman,
  (ii) Form of complaint and licence to be granted,
  (iii) Procedure of proceedings before the Registrar of copyrights,
  (iv) Notice of intension to make sound recording ,
  (v) Register and books of accounts,
  (vi) Manner in which prior notice may be given by a broadcasting organization under sub-sec(2)of sec.31- D,
  (vii) Reports to be maintained, and inspection of records and books of accounts,
  (viii) Condition and submission of application,
  (ix) Inquiry for cancellation of registration,
  (x) The fee which is to be paid before filing an appeal,
  (xi) Form of register of copyright,