AMITY LAW SCHOOL, NOIDA

TOPIC:-
“SUBJECT MATTER OF COPYRIGHT”

SUBMITTED BY:

PULKIT AGARWAL

ENROLLMENT NO. - A11921615055

B.COM LLB (H)

 INTRODUCTION

What is a copyright?
Definition: Copyright is intellectual property. If a person owns the copyright to
something it means he has a right to decide who can make a copy. Copyright is
the right to copy. It is the exclusive right given by law for a certain term of years
to an author, composer, etc. to print, publish and sell copies of his original work.

According to Section 14 of the Copyright Act 1957 copyright means the exclusive
right to do or authorize others to do certain acts in relation to –

(i) Literary, dramatic or musical works

(ii) Artistic works

(iii) Cinematograph film

(iv) Sound recording

The exclusive right for doing the respective acts for doing the respective acts
extends not only to the whole of the work but to any substantial part thereof or to
any translation or adaptation thereof.

Copyright is a creation of statute. It is form of intellectual property as

distinguished from the physical property. Copyright is like an ownership of a
house, one can sell it, hire it, etc. It is a private right and has to be protected by
owners like all other properties which is protected by individuals; the state only
assists the same. Two authors independently producing an identical work will be
entitled for copyright in their respective works. Copyright encourages creativity,
publication and dissemination of intellectual works but at the same time it
restricts their use and availability.

SCOPE OF COPYRIGHT
The object of copyright law is to protect the author of the copyright work from
an unlawful reproduction or exploitation of his work by others. Thus the object is
to encourage authors, composers and artists to create original works by rewarding
the with the exclusive right for a limited period to reproduce works for the benefit
of the public. The copyright statute encourages creative expression by providing
various measures of protection for creative expression. The copyright laws by
extending economic benefits to authorship encourages writing original works.

INDIAN COPYRIGHT LAW

The Copyright Act 1957, based on the Berne Convention and the Copyright Act
1911 is the current statute in India which has been amended in
1983,1984,1992,1994 and 1999. Since the Indian act has borrowed heavily from
the U.K. law, the principles enunciated by courts in England are useful for the
interpretation and understanding of the Indian law. The 1957 act has created a
copyright office and a copyright board to facilitate registration of copyright and
to settle certain kinds of disputes arising under the act and for compulsory
licensing of copyright. The act lays down term of copyright for different
categories of works. The act defines infringement of copyright and provides civil
and criminal remedies against infringement.

WHAT COPYRIGHT PROTECTS?

In order to secure copyright protection what is required is that the author must
have bestowed upon the work sufficient judgement, skill and labour or capital. It
is immaterial whether the work is wise or foolish, accurate or inaccurate or
whether it has or not any literary merit. It is necessary that the labour, skill and
capital expended should be sufficient to import to the product some quality or
character which the raw material did not possess and which differentiates the
product from the raw material. The owner of a copyright has no monopoly in the
subject matter. Others are at liberty to produce the same result from the common
source provided they do so independently and their work is original. Another
person may originate another work in the same general form provided he does so
from his own resources and makes the work he so originates a work of his own
by his own labour and industry bestowed upon it. Copyright law does not prevent
a person from taking what is useful from an original work and create a new work
with additions and improvements.

Copyright only in form not in idea:

Copyright does not subsist in ideas, concepts,principles, procedures etc. If a work

has been created in one’smind, copyright protection does not attach until the work
is fixed in the tangible medium of expression. The idea / expression dichotomy is
a fundamental tension in copyright law. The principle is that ideas and concepts
are available to all to use and that one is free to create his own expression of any
concept or idea. Further the lack of requirement of quality in copyright law also
confirms with the principle that copyright protects expression but does not protect
the idea underlying expression.

WORKS IN WHICH COPYRIGHT SUBSISTS

Section 13 (1) of the copyright act lists the works in which copyright subsists viz.
in:

a) Original literary, dramatic, musical and artistic works,

b) Cinematograph films and
c) Sound Recordings

The conditions necessary are:

1. Where the work is published , the work is first published in India , or where
it is first published outside India , the author is a citizen of India at the date
of publication , or in case where the author was dead at the date
2. Where the work is unpublished the author is a citizen of India or domiciled
in India at the date of making of the work.
3. In the case of work of architecture, the work must be located in India.
These conditions do not apply to foreign works or works of international
organization. Copyright protection is not granted where the work is grossly
immoral, illegal, defamatory, seditious, irreligious or contrary to public policy or
calculated to deceive the public.

DRAMATIC WORK-
1. According to Section 2(h) of the copyright Act, a dramatic work includes
any piece of recitation, choreographic work, entertainment in dumb show,
the scenic arrangement or acting form of which is fixed in writing or
otherwise but does not include a cinematograph film. Since the definition
is an inclusive one, the other things which fall within the general meaning
of dramatic work, may also be covered by the definition.
2. According to the copyright law, a dramatic work, like a literary work, must
be original in order to qualify for copyright protection.
3. As per the law, a dramatic work does not include a ‘cinematograph film’
because it is a separate subject matter of copyright. However, the script or
scenario for a cinematograph film is a dramatic work.

CHOREOGRAPHIC WORK -
Choreography is the art of arranging or designing of ballet or stage dance
in symbolic language. As per the law, choreography is the form of dramatic
work.

SCENIC ARRANGEMENT –
Scenic arrangements or acting firm is protected under Copyright Act, 1957,
provided it is fixed in writing or otherwise. Thus, in order to secure copyright
protection it is necessary that the scenic effects or stage situations be reduced
into some permanent form.
CASE LAW-
Tate v/s Fullbrook , (1908 )1 K.B. 821
In this case the court held that mere scenic effects, taken by themselves and apart
from the works and incidents of the piece were not protected by copyright. But
once there is dialogue, scenic effect becomes accessory to the dramatic work, and
the whole becomes the subject of copyright.

MUSICAL WORK
 According to Section 2(p) of the Copyright Act, “ musical work" means a
work consisting of music and includes any graphical notation of such work
but does not include any words or any action intended to be sung, spoken
or performed with the music.
 According to the Act, a musical work, like a literary work and dramatic
work must be original in order to qualify for copyright protection.
 There is no copyright in a ‘song’ as per the law because a song is not one
is not one of the types of work in which copyright subsists. The words of a
song have literary copyright ( it belongs to the lyricist ) and the music of a
song has musical copyright ( it belongs to the composer/music director) ,
but the song itself has no copyright.

CASE LAW
Indian performing right society ltd. v/s Eastern Indian motion
pictures association. (1977) 2 scc 820.
In this case the Court observed that “copyrighted music is not the soulful tone,
the superb singing, the glorious voice or the wonderful rendering. It is the melody
or harmony reduced to print, writing or graphic form.”

ARTISTIC WORK-
According to Section 2 (c) of the Copyright Act, 1957 "artistic work" means-
 i. a painting, a sculpture, a drawing (including a diagram, map, chart or plan),
an engraving or a photograph, whether or not any such work possesses
artistic quality;
ii. Work of architecture, and
iii. Any other work of artistic craftsmanship;

 According to the law, an artistic work must be original ,that is it must

originate from the author, though it need not possess any artistic quality.
The author , however, must have bestowed skill , judgement and effort
upon the work,
 Copyright does not subsist in mechanically reproduced labels and cartoons
because no skill or judgement is involved in reproduction of such labels or
cartoons.

Examples of artistic work in which copyright exists;-

 Painting is protected as artistic work whether or not it possesses any artistic

quality but a painting must be an original work of the author in order to get
protection under the copyright law.

 Copyright subsists in a sculpture irrespective of its artistic quality

 Artistic works also includes drawing, which further includes a diagram,

map, chart or plan irrespective of their artistic quality. It also includes
engineering and mechanical drawings.

 Original photographs are also included as artistic work irrespective of

their artistic quality.

 The second category in the definition of artistic works is a work of

architecture .A work of architecture means any building or structure
having an artistic character or design or any model for any such building or
structure.

CINEMATOGRAPH WORK
  Section 2(f) , Copyright Act, 1957, defines ‘cinematograph film’ to mean
any work of visual recording and includes a sound recording
accompanying such visual recording and the expression ‘cinematograph’
shall be construed as including any work produced by any process
analogous to cinematography including video films.
 Copyright in cinematograph film ( or a sound recording)is separate from
the copyright in any work from which or from a substantial part of which
the film or (sound recording is made). The former will not affect the latter.
 Under the copyright law, copyright protection is available only to the
cinematograph film including the sound track. Hence, sound track is
protected as a part of the cinematograph film and not as sound recording.
 However, independent copyright may also subsist in those sound
recordings which are made from film sound tracks, For example; making
records of songs from the soundtrack of a film.
 Section13 (4) of the Copyright Act, 1957 also provides that copyright in
a cinematograph film shall not affect the separate copyright in any work in
respect of which or a substantial part of which the film is made.
 Unlike literally, dramatic , musical and artistic work , the Copyright Act
does not stipulate that cinematograph must be ‘original’ in order to
qualify for copyright protection.

CASE LAW;

INDIAN EXPRESS NEWSPAPER PVT LTD v/s JAGMOHAN, AIR 1985

BOM,229

Facts of the case: in this case the defendants made a stage play and a movie based
on the central theme of certain articles published by the plaintiff, namely purchase
of a woman named ‘Kamla’ by a journalist to highlight the flesh trade flourishing
in some parts of India. The plaintiff claimed that by filming movie ‘Kamla’ , the
company’s copyright in the story and the articles published in the Indian Epress
were infringed .

Judgement: the court observed that there can be no copyright in an event which
has already taken place. The Supreme Court held that there can be no copyright
in an idea, subject matter, themes , plots or historical or legendary facts and
violation of the copyright in such cases is confined to the form, manner,
arrangement and expression of the idea by the author of your copyright.
SOUND RECORDINGS
 According to Section 2 (xx) of the Copyright Act,1957 “ sound recording"
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,
 According to the Copyright law, copyright will subsist in sound recordings
only if it is lawfully made. If the recording includes material which is an
infringement of any literally, dramatic or musical work, copyright will not
subsist in the sound recording.
 The Copyright Act does not make any express stipulation as to
‘originality’ in sound recording as in the case of literally, dramatic or
artistic work.
 According to Section 13(3)(b) of the act, the copyright shall not subsist in
any sound recording if a substantial part of it is an infringement of the
copyright in any other work.
 Musical work and sound recordings embodying the music are considered
separate subject matter for copyright. The copyright in the recording of
music is separate from the copyright in music. Copyright in music vests in
the composer and the copyright in the music recorded vests in the
producer of the recording.
 According to the Act, the publishing of any sound recording in respect of
any work is prohibited unless the sound recording displays the following
particulars,-
a) The name and address of the person who has made the sound recording.
b) The name and address of the owner of the copyright in the work.
c) The year of its first publication.

LITERARY WORKS
Copyright subsists in original literary work. Literary work in common parlance
means any work written or printed in any language e.g. novels, poetry, history, or
books or any subject whatsoever. The Copyright Act does not define ‘literary
works’ except that it includes computer programmes, tables and compilations
including computer databases” [Sec 2(o)]. The definition is an inclusive one and
not exhaustive one; it is helpful because it indicates that the phrase does not
necessarily mean a piece of literature.

The “Literary Works” referred to in Sec. 13 are not confined to works of literature
in the commonly understood sense (viz. novel, poetry, books, etc.) but must be
taken to include all works expressed in writing, whether they have any literary
merit or not (Agarwala Publishing House v/s Board of H.S. & I. Education,
U.P. AIR 1967 All 91).

The word ‘literary’ in copyright law is to be used in a sense somewhat similar to

the use of word ‘literature’ in political or electioneering literature and refers to
written or printed matter [Univ. of London Press Ltd. v/s Univ. Tutorial Press
Ltd. (1961) 2 Ch 601]. So long as there is sufficient amount of skill and labour
in constructing or selecting the material, no particular skill in the literary form is
needed. Thus, works like Football coupons, a set of logarithmic tables or an
income tax return are considered literary works. However, there is no copyright
in a mere collection of words which is not a compilation e.g. words on a card for
a card index system.

Originality in Literary Work

“Originality is the one thing unoriginal minds do not find the use of” – John Stuart
Mill.

Copyright Law does not ask for originality of ideas but in expression of thought
in case of ‘literary work’. The word ‘original’ means first in order or which has
served as a pattern of which a copy or translation is made first hand, not imitative,
novel in style, character or inventive.

CONCLUSION
In our approach to the issue under consideration we have dealt with the
enunciation of the concept of Copyright, and we have also considered the socio-
cultural, scientific & economic applications and implications of the right, more
specifically, in the digital context.

As we all know change is intrinsic to 'society', which never remains static but is
always evolving, and, from time to time, witnesses new developments in social,
scientific and economic fields. Under the foregoing chapters of this work-up, we
have discussed the development of digital technology and the Internet in
'scientific sphere', and how these scientific developments have created problems
before the economics, the sociology and the jurisprudence of copyright.