INTELLECTUAL PROPERTY RIGHTS: COPYRIGHT LAW OF INDIA

Introduction

Copyright law in India is designed to safeguard the intellectual property rights of creators,
providing legal protection for their original works.The Copyright Act of 1957 is the Indian
copyright law, which was introduced on January 21, 1958, and has undergone amendments to
keep pace with technological advancements and international standards . India is a signatory
to most major international conventions governing copyright law, including the Universal
Copyright Convention of 1951, the Berne Convention of 1886, the Rome Convention of
1961, and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
However, India is not a signatory to the WIPO Copyright Treaty and the WIPO Performances
and Phonograms Treaty. The Act defines copyright as the exclusive right granted by and
subject to the terms of this Act to do and sanction the doing of various acts, such as
reproduction, publication, public performance, translation, communication, derivative work,
and translation or adaptation of the work. The author is the first proprietor of copyright, and
in cases where a literary, dramatic, or creative work created by the author in the course of
their employment by the man of affairs of a newspaper, magazine, or similar periodical under
a contract of service or situation, the same man of affairs shall be the primary owner of the
copyright in the absence of agreement to the contrary. In the case of a work created in the
course of an author's employment under a service contract, the employer shall be the first
owner of the copyright in the absence of any agreement to the contrary.

What is Copyright ?

Copyright is an intellectual property right that law gives to a creator of literary, dramatic,
musical, and artistic work and a producer of cinematograph films and sound recordings. It
also applies to architectural works and computer program/software. It can be understood as a
bundle of rights that include the right of reproduction, communication, adaptation, and
translation of the work. Copyright ensures protection to the rights of authors over their
creations and in turn aims at rewarding creativity.

Copyright Law In India

The Copyright Act, 1957 (Act) along with Copyright Rules, govern the laws related to
Copyright protection in India. Mere ideas, knowledge or concepts are not copyrightable.
Having said that, copyright protects the original expression of information and ideas.
Copyright can be claimed by either the creator or the person who has inherited the rights of
ownership from the original creator or an agent who is allowed to act on behalf of the creator.

The Copyright Act provides an economic right to the author to reproduce the work, to issue
copies, to perform or communicate it to the public, to make any cinematograph film or sound
recording or to make any adaptation or translation of the work. The Act also provides a
paternity right- right to claim authorship of the work; an integrity right- right to protect one’s
honour and reputation and a general right- right to not have a work falsely attributed to
oneself. These moral rights remain with the author even after assignment of the copyright.

When it comes to enforcement, the Copyright Board used to adjudicate certain cases
pertaining to copyright, however with the passing of the Finance Bill in 2017, the board was
dissolved, and its functions were transferred to the Intellectual Property Appellate Board
(IPAB). Subsequently, the IBAP was abolished in 2021, and powers were finally transferred
to Commercial Courts (a division of High Courts).

Features of The Copyright Act

Subject Matter of Copyright

All subject matters protected by copyright are called ‘works’. Thus according to Section 13
of The Copyright Act 1957, it may be subjected for the following works:

● Original Literary Work

● Original Dramatic Work
● Original Musical Work
● Original Artistic Work
● Cinematography films, and
● Sound recordings.

Copyright in Literary Work: Literary works are protected by copyright as they are in
physical or tangible form. Literary work includes magazines, books, novels, newspapers,
computer programming, coding, softwares, letters, e-mails, poetry, encyclopaedia entries etc.
The creator of a work is generally regarded as an owner of a work.

Copyright in Dramatic Work: Copyright in the field of dramatic safeguards the creators,
composers, choreographers, dramatists, poets, authoretc. It includes dance, screenplays,
ballets, operas etc.A work of action, with or without words or music, which is capable of
being performed before an audience.
Copyright in Musical Work : Section 2(p): 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. However, it excludes any
actions or words which are intended to be sung/ spoken with the music. The author of the
musical work is known as a composer.

Copyright in Artistic Work :Section 2(c)a painting, a drawing (including a diagram, map,
chart, or plan), an engraving or a photograph, whether or not any such work posses artistic
quality: –

1. A work of architecture
2. Any other work of artistic craftsmanship.

Copyright in Cinematographic Films : Section 2(f) explains that 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 accompanying such visual recording
is a cinematographic work. Copyright will not subsist in a film if the substantial part of the
film is an infringement of the copyright in any other work.

Copyright in Sound Recordings : As a general rule, a sound recording or composition does

not have a copyright unless it is initially released in India, or if it is published outside of
India, unless the composer is an Indian citizen.

Registration of Copyright

It is an important principle of the Berne Convention that the registration of copyright is not
mandatory, in India too it is not mandatory for one to register a copyright for availing the
protection of law. Consequently, the Copyright Act 1957 also does not mandate registration.

But registration of Copyright has some advantages .For example, a registered owner can also
record the registration with Indian Customs to help in protection against the importation of
infringing copies into India. Further advantage is that copyright registration creates a public
record of the ownership of the copyright and a registered owner is entitled to statutory
damages in case of infringement which otherwise would be only limited to an award related
to actual damages and profits which might be quite complicated to establish in Court
proceedings.

Registration Process of Copyright

To obtain the copyright registration the following process has to be followed:

1. An application (including all the particulars and the statement of the particulars) in the
format of FORM IV have to be sent to the registrar along with the requisite fees (mentioned
in the Schedule 2 of the act.). A separate application has to be made for separate works;
2. Every application has to be signed by the applicant as well as an Advocate in whose favor
a Vakalatnama or a POA has been executed;
3. The registrar will issue a Dairy No. and then there is a mandatory waiting time for a period
of 30 days for any objections to be received;
4. If there are no objections received within 30 days, the scrutinizer will check the application
for any discrepancy and if no discrepancy is there, the registration will be done and an extract
will be sent to the registrar for the entry in the Register of Copyright;
5. If any objection is received, the examiner will send a letter to both the parties about the
objections and will give them both a hearing;
6. After the hearing, if the objections are resolved the scrutineer will scrutinize the
application and approve or reject the application as the case may be.

Time Period

The duration of Copyright is 60 years. In the case of original literary, dramatic, musical and
artistic works the 60-year period is counted from the year following the death of the author.
In the case of cinematograph films, sound recordings, photographs, posthumous publications,
anonymous and pseudonymous publications, works of government and works of international
organisations, the 60-year period is counted from the date of publication.

Provision of Ownership

The original owner of the copyright is the creator of the work itself, as stated in Section 17 of
the Copyrights Act of 1957. The one exception to this rule is when an employee creates work
while performing duties as part of their employment, in which case the employer assumes
ownership of the copyright.

Civil and Criminal Remedies

Section 55 of the Copyright Act of 1957 addresses civil remedies for copyright infringement.
These civil remedies encompass restitution, injunctions, account interpretation, deletion and
surrender of copies made infringing, as well as conversion damages. Section 63 of the
Copyright Act of 1957 specifies criminal penalties for copyright infringement. These criminal
penalties can take the form of jail time, fines, searches, the seizure of contraband, etc. The
maximum sentence for imprisonment is 3 years, but it cannot be less than 6, and the
maximum fine is between 50,000 and 2,00,000 rupees.
Rights of Copyright Holder

In the Copyright Act, 1957, the owner possesses the negative rights which are to prevent
others from using his works in certain ways and to claim compensation for the usurpation of
that right. In this Act, there are two types of rights given to the owner:

● Economical Rights
● Moral Rights

Economic Rights :This right is also known as the Exclusive Rights of the copyright holder
provided under Section 14. In this Act different types of work come with different types of
rights. Such as:

In the case of original literary, musical, and dramatic work:

● Right to reproduce;
● Right to issue copies;
● Right to perform at public;
● Right to make cinematography and sound recording;
● Right to make any translation;
● Right to adaptation; and
● Right to do any other activities related to the translation or adaptation.

In the case, of computer program work:

● Right to do any act aforesaid mentioned; and

● Right to sell, rent, offer for sale of the copyrighted work.

In the case of artistic work:

● Right to reproduce;
● Right to communicate;
● Right to issue copies;
● Right to make any cinematography and sound recording;
● Right to make an adaptation; and
● Right to do any other activities related to the translation or adaptation.

In case of a cinematograph film work:

● Right to sell, rent, offer for sale of the copyrighted work; and
● Right to communicate.

In the case of a sound recording work:

 ● Right to communicate;
● Right to issue copies; and
● Right to sell, rent, offer for sale of the copyrighted work.

Moral Rights: The Copyright Act, 1957 protects ethical rights, that is due to the actual fact
that a literary or inventive work reflects the temperament of the creator, just as much as the
economic rights reflect the author’s need to keep the body and the soul of his work out from
commercial exploitation and infringement. These rights are supported by Article 6 of the
Berne Convention of 1886, formally referred to as a world convention for the protection of
literary and inventive works, whose core provision relies on the principle of national
treatment, i.e. treats the opposite good as one’s own.

Section 57 of The Copyright Act,1957 recognize two types of moral rights which are:

● Right to paternity– which incorporates the right to assert the authorship of the
work, and the right to forestall others from claiming authorship of his work; and
● Right to integrity- which incorporates right to restrain, or claim of damages in
respect of any distortion, modification, mutilation, or any other act relates to the
said work if such distortion, multiplication or alternative act would be prejudiced
to claimant honor or name.

Assignment of Copyright

The owner of the copyright can generate wealth not only by exploiting it but also by sharing
it with others for mutual benefit. This can be done by way of assignment and licensing of
copyright. Only the owner of the copyright has the right to assign his existing or future
copyrighted work either wholly or partly and as a result of such assignment the assignee
becomes entitled to all the rights related to copyright to the assigned work, and he shall be
treated as the owner of the copyright in respect of those rights.

As per Section 19, these conditions are necessary for a valid assignment:

● It should be in writing and signed;

● It should specify the kinds of rights assigned and the duration or territorial extent;
and
● It should specify the amount of royalty payable if required in any case.

It is also provided that, if the period is not mentioned in the agreement it will be considered
as five years and if the territorial extent is not stipulated in the agreement, it will be
considered as applicable to the whole of India.
Infringement of Copyright and Remedies

Where a person intentionally or unintentionally infringes the rights of the copyright holder,
the holder may be subject to the following remedies available under this Act.

1. Direct Infringement : It’s a strict liability offence and the amount of damages that should
be given can be based on the offender’s guilty intention for the alleged infringement.

2. Contributory Infringement : It is an assumption that the alleged contributory infringer

knew about and participated in the infringement.

3. Vicarious Infringement : Vicarious copyright infringement liability evolved from the

principle of respondent superior. It not only focuses on the knowledge and participation but
on the relationship between the direct infringer and the defendant.

Remedies
These remedies are given under Section 55 of the Copyright Act,1957 which are:

1. Civil Remedies : Injunction damages or account of profit, delivery of infringing copy and
damages for conversion.
2. Criminal Remedies : Imprisonment of the accused or imposition of fine or both. Seizure
of infringing copies.
3. Administrative Remedies : It consists of moving the Registrar of copyrights to ban the
import of infringing copies into India when the infringement is by way of such importation
and the delivery of the confiscated infringing copies to the owner of the copyright and
seeking the delivery.

Civil Remedies
Interlocutory injunction: This is the most important remedy against copyright infringement,
it means a judicial process by which one who is threatening to invade or has invaded the legal
or equitable rights of another is restrained from commencing or continuing such act, or is
commanded to restore matters to the position in which they stood previous to the relation
Anton Piller order : This order is passed to take into possession the infringed documents,
copies and other relevant material of the defendant, by the solicitor of the plaintiff. This order
is named after the famous case of Anton Piller KG v/s Manufacturing Process Ltd, 1976. In
this case, the plaintiff Antone Piller, the German manufacturer is successful in passing
ex-parte awards of restraining the use of his copyrighted products against the defendant.
Mareva injunction :This is a particular form of the interlocutory injunction which restrains
the defendant from disposing of assets that may be required to satisfy the plaintiff’s claim or
for removing them from the jurisdiction of the Court.

Criminal Remedies
Section 63 of the Copyright Act provides for criminal remedies if there is any copyright
infringement. According to Section 63 of the Act, anyone found guilty of willfully violating
or aiding in the violation of a work’s copyright will be sentenced to at least six months in
prison and a fine of at least 50,000 rupees. A person who is found guilty under Section 63A a
second time faces an additional sentence of imprisonment for a term not less than one year
and a fine that cannot be less than one lakh rupees due to the widespread copyright
infringement. According to Section 63B, a person who intentionally uses an illegal copy of
computer software on a computer faces a minimum seven-day sentence in jail and a fine of at
least 50,000 rupees.

For infringement of copyright, the criminal remedies provided under Section 63:

● Imprisonment, not less than 6 months which may extend up to 3 years;

● Fine may not be less than 50,000 which may extend up to 2,00,000;
● Search and seizure of copyrighted goods; and
● Delivery of copyrighted goods to the copyrighted owner.

In the case of repeat offenders, minimum punishment terms of 1 year and fine of 1 lakh
however, the highest punishment will be the same as the first time offender.

Exceptions to Copyright Infringement

Fair Dealing : is the statutory limitation on the exclusive right of the copyright owner which
permits reproduction or use of copyrighted work in a manner that otherwise would have
constituted infringement. This law is given under Section 52 of the Copyright Act,1957
according to which the free uses can be made for any work except computer program for the
purposes:

● For private and personal use including research,

● For criticism and review,
● For reporting of current events or issues including lectures in public,
● For broadcasting in cinematographic films or by posting photographs,
● For reproduction and reporting of any judicial proceeding,
● For reproduction, or publication of any kind of work prepared by the secretariat of
a legislature,
 ● For reproduction of any kind of work in a certified copy made or supplied
accordance with any law,
● For reading and recitation of any literary or dramatic work in the public domain,
● For publication of any non-copyright matter bonafide intended for the use of
educational institutes, and
● For recording any sound by the owner of the right in the work.

Relevant Cases

Super Cassettes Industries Ltd. v. Myspace Inc.: Super Cassettes Industries, commonly
known as T-Series, filed a copyright infringement suit against Myspace Inc., a social
networking website. T-Series claimed that Myspace allowed its users to upload and share
copyrighted songs without obtaining proper licenses. The court held that Myspace was liable
for copyright infringement and directed the platform to implement measures to prevent
unauthorized sharing of copyrighted content.

3. Yash Raj Films Pvt. Ltd. v. Sri Sai Ganesh Productions: Yash Raj Films, a prominent film
production company, filed a copyright infringement suit against Sri Sai Ganesh Productions
for unauthorized copying and distribution of their movie. The court found in favour of Yash
Raj Films, granting an injunction against Sri Sai Ganesh Productions and awarding damages
for copyright infringement.

Conclusion

Copyright law in India serves as a vital framework for protecting the rights of creators and
fostering a vibrant creative ecosystem. With ongoing advancements in technology and
changes in the way content is created and consumed, the law must remain dynamic to
effectively balance the interests of creators, consumers, and the public at large. Continuous
dialogue and adaptation are essential to ensuring that copyright law in India remains relevant
and robust in the face of evolving challenges.