Copyright Law

Copyright Law
Dr. Tabrez Ahmad Associate Professor of Law
Tuesday, November 23, 2010
Dr. Tabrez Ahmad , http://iplexindia.blogspot.com
Agenda
CONCEPT OF PROPERTY & INTELLECTUAL PROPERTY
Categories of copyrighted works
RATIONALE BEHIND IP PROTECTION OF IP BY PRIVATE AND PUBLIC DEBATE TRANSITION OF IPR NATURE OF IPRs MAIN IP INSTRUMENTS STRATEGIC ELEMENTS INTERNATIONAL FRAMEWORK NATIONAL REGIME RECENT WIPO CASE of Mahindra & Mahindra v. .
Tuesday, http://iplexindia.blogspot.com Dr. Tabrez Ahmad , November 23, 2010 2
1. The possible reliefs to a cybercrime victim and
strategy adoption
1.
Categories of copyrighted works
Copyright
Copyright protects literary and artistic works
e.g. Books, lectures, dramatic and musical works, choreography, cinematography, drawings, paintings, architecture, sculpture, photographs, illustrations, maps, plans sketches etc. This is automatic right created with the creation of work and no registration is required
Tuesday, November 23, 2010 Dr. Tabrez Ahmad , http://iplexindia.blogspot.com 4
Rights covered under CR

Moral Rights : Authors right of paternity. Nonalienable. Economic Rights : Rights to exploit the work. e.g. Rights of translation, rights of performance, rights of reproduction etc. These rights can be transferred, assigned, licensed for economic benefits.
Who are the Authors?

Writer/writers of the book;
Painter; Music composer;

Translator;
Cinematographer; Photographer etc.
Duration of Protection
For books and other works of arts it is 60 years after the death of the author (the laws of different countries vary); For photographic work 60 years from making the work; For cinematic works 60 years after making the work available to public.
COPYRIGHT - A GLOBAL RIGHT

Right exists on creation No registration is needed Protectable in all Convention countries. Almost 150 countries are covered Reciprocal protection in all countries
COPYRIGHT
Categories of copyrighted
works

literary artistic musical Dramatic Cinematograph films Sound Recordings Broadcasters rights Performers Rights
Copyright
Computer includes any electronic or similar device having information processing capabilities (added by amendment in 1995) Duplicating equipment means any mechanical contrivance or device used or intended to be used for making copies of any work. Reprography means the making of copies of a work, by photocopying or similar means
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Copyright
Publication means making a work available to the public by means of copies or by communicating the work to the public.
But by a review of cases one can see that protection against what is contemplated under the new WIPO treaty has already been granted by judge-made law.
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Examples of some works

Choreography:
art of arranging designing of ballet or
stage dance in symbolic language. It is a form of dramatic work. In order to qualify for the copyright protection it must be reduced into writing.
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Ballet:
The elements of ballet are the music, the
story, the choreography, the scenery, and the costumes. A composite work. Such work could be the subject matter of copyright.
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Painting :
An artistic work whether or not it posses any artistic
quality . To be entitled to copyright protection a painting must be original i.e. it should originate from the painter and not a mere copy of another painting. A painting must be on a surface of some kind. Facial make-up as such, however idiosyncratic it must be an idea, cannot possibly be a painting for the purpose of copyright act.
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Sculpture: Included in the definition of artistic work the work of sculpture includes casts and models. means the art, act, process of carving cutting, hewing, molding or constructing materials into statutes , ornaments, figures The act, art, process of producing figures or groups in plastic or hard materials. The art of sculpture is the branch of the visual arts that is especially concerned with the creation of expressive form in three dimensions. A sculpture should in some way express in three dimensional form an idea of the sculptor.
NEW ENCYCLOPEDIA QUOTED IN WHAM-O CASE. A Frisbee was a sculpture.
Copyright subsists original sculpture. The creation of a sculpture no doubt involves good amount of skill and labor
Dr. Tabrez Ahmad , http://iplexindia.blogspot.com 15
Creativity
All
Industry be it fashion design, manufacturing of industrial goods, manufacturing of aesthetic items of export, production of jewellery etc. has intellectual creativity in them
Creativity starts from the very moment the
creator draws his first sketch, makes improvements on it and finally arrives at the product.
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Creativity
Creation goes through various steps which can be broadly divided
Conception
Design & development
Commercial manufacture.
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Creativity
At each of these stages, there are works which are created that can be protected in law Examples - A drawing or a sketch which can be created as the first conception of a product is a copyrightable subject matter - The shape and aesthetic look given to a product is protectable under the Designs Act - The final product and the brand which is given to the product are protectable under the Trade Mark Act - If the shape is unique and can be identified exclusively with a specific product then the shape is also protectable
At every stage there is creation of what is loosely referred to as Intellectual Property
Safeguards
Organisations which are engaged in any of the
above stages of creation of a product ought to protect their creation.

Sufficient safeguards ought to be taken to
ensure that such works are not misused or plagiarised
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Safeguards
Whenever designs or any other subject matter
of Intellectual Property is created within an organisation, the contract should clearly specify that anything created by the employees during the course of their employment would automatically belong to the organisation which will have the rights to exploit the same
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Safeguards
Documents relating to the creation should be
preserved chronologically in original. The same should be maintained under specific portfolio and should be kept under the custody of any of the Top Management Officials
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Safeguards
Once the final product is created and before it is sent
for industrial manufacture or in the case of a designer product before it is put in the market for sale, steps should be taken to protect it by filing Copyright applications or Design applications
Care must be taken to ensure that no prior publication
is made before such applications are filed. This would ensure that in the case of a design, prior publication is not made and in case of copyright. , no one else claims prior rights
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Safeguards
The applications which are filed should be followed up diligently and registration certificates obtained should be maintained in the records of the organisation.
The Copyright office is located in Delhi. The Designs office comes under the Controller General of Patents and Designs & Trade Marks, which is situated at Kolkata. However, applications can be filed through posts
If any misuse of the drawing, design, mark or work is seen, immediate steps should be taken to protect them
Defences Available
That the design has been previously registered in India;
or That it has been published in India or in any other country prior to the date of registration; or That the design is not a new or original design; or That the design is not registrable under this Act; or It is not a design as defined under clause (d) of section 2.
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TERM OF COPYRIGHT
The term of copyright
for literary, dramatic musical or artistic work is
lifetime of author + 60 years

for anonymous or pseudonymous work is 60 years
from the date of publishing

for a photograph, sound recording, cinematographic
film and government work is 60 years from date of publishing of the work
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INFRINGEMENT OF COPYRIGHT
What constitutes infringement?

Doing or authorizing to do any of the following acts without the consent or license of owner of copyright:

Reproduce the work including its storage by any electronic means Issue copies to the public Perform/Communicate the work to public Make translation of the work Make adaptation of the work To make any cinematograph film or sound recording in respect of the work.
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INFRINGEMENT OF COPYRIGHT
Permit for profit any place to be used for communication of the work when infringement To permit for profit any place to be used for the communication constitutes infringement of the copyright in the work unless he is not aware or has reasonable grounds for believing that such communication to the public will be an infringement of copyright make infringing copies of work for sale, hire or display or offer for sale or hire import infringing copies in India
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Types of copyright in one work

BOOKS: 1. Rights of the author 2. Rights of the publisher in India and abroad 3. Rights of a person publishing the book on CD Rom/multimedia format 4. Rights on the Internet
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MUSIC: 1. Right of lyricist 2.Music director 3.Singer 4. Orchestra 5.Music company 6. Version recordings
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Machinery
This can be sub-matter of patent & copyright. But drawings of machinery falls in copyright. Escorts Construction case.
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Deciding upon a dispute dealing with copyright in drawings and their
theft is the case of Indiana Gratings Private Limited & Anr v. Anand Udyog Fabricators Private Limited & Ors.[2009 (39) PTC 609 (Bom)]. Indiana Gratings claim to be the manufacturers of certain gratings used for industrial purposes. In this pursuance, they imported a second hand Electro Fold machine in the assembled form from a European manufacturer, which they found unsuitable to Indian conditions. They incorporated certain improvements and modifications to those machines and claim copyright in the drawings as an artistic work. Anand Udyog are accused of having obtained these drawings unlawfully and hence were alleged of theft and criminal conspiracy. The cause of action arose as Anand Udyog reproduced those drawings into finished products which they use for their business, competing with that of Indiana Gratings. Anand Udyog however contended that Indiana Gratings did not have any copyright over the drawings, because they had copied it from a second hand European machine they had imported. They further stated that if Indiana Gratings' work qualified as an artistic work being a product of their original effort there was no infringement by reproduction of those works in their finished products vis--vis the 3 dimensional objects as against Indiana Gratings' 2 dimensional drawings. Further the drawings were stated not to have a copyright in them as they were registrable under the Designs Act, 2000
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Looking at the definition of "artistic work" as under Section 2(c)
(i) of the Copyright Act, 1957, the Court opined that a drawing in the form of a diagram would qualify as an "artistic work" even if it did not portray any artistic quality to a layman. The Court stated that although Indiana Gratings had borrowed the idea from European manufacturers, the expression is in the drawings which carried a copyright with it. On the question of qualifying under the Designs Act, 2000, the Court took notice of Section 2(d) dealing with the definition of a "design" and the criteria considered to qualify as a design, the Court noted that the drawings, did not reflect finished articles, let alone appealing finished articles, but served a mere functional purpose, thus falling out of the purview of being a "design". The Court took notice of the caseWest vs. Francis (1822) 5. B & Ald. 743 whereby it was held that a drawing of an industrial product, which could be multiplied by an industrial process, would not qualify as a design under the Designs Act but a copyright as an artistic work.
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Further, addressing the question of whether Anand Udyog's product constituted an infringing copy under section 2(m) of the Act, the Court noted that the depiction is in Anand Udyog's finished products of Indiana Gratings' drawings make it an infringing copy. Anand Udyog claimed that Indiana Gratings' drawings were commonplace shapes, based on basic principles of engineering mechanics. Indiana Gratings retorted stating that the various drawings taken as a whole for various parts of the machinery would fit into one another and when used together did not show commonplace drawings.
The case ofL.B. (Plastics) Limited vs. Swish Products
Limited, (1979) RPC 551, was also referred whereby The House of Lords laid down a twin test to determine the infringement : There was a striking general similarity between the Plaintiffs and the Defendants' product with proof of access to the Plaintiffs' productions. The Defendants had not provided any alternative to copying. It was also held therein that that once the similarity was shown between the object/drawing in contention was found, the next step was to consider whether this inference could be displaced by evidence from the Defendants showing how in fact they had arrived at their designs and had not done so by copying. A similar judgment was also noted to have been passed in Escorts Construction Equipment Ltd. & other vs. Action Construction Equipment Pvt. Ltd. & anr., AIR 1999 Delhi 73.
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The Court noted, that in the present scenario, there was a case of
theft coupled with recovery of the drawings, which revealed Anand Udyog' access to Indiana Gratings' drawings. Moreover, Anand Udyog neither relied upon nor produced their own drawings. The specific dimension of the drawings submitted by other co-defendants was found to be identical to the drawings of Indiana Gratings', which the Court held to prove beyond doubt that the drawings were copied. Further, the Court found that Indiana Gratings' drawings had their specific identifiable marks alongside the copies recovered from some of the defendants, including distinctive alphanumerals as also the logo, complete name and description of the product along with the legend for the various items in the drawings and a warranty. Taking note of the findings, the Court concluded that the drawing were stolen and copied. In view of the facts of the case, the Court restrained Anand Udyog from using Indiana Gratings' drawings and thereby infringing their copyright in their drawings or making any 3 Dimensional objects of machine parts amounting to the reproduction of Indiana Gratings' drawings.
Tuesday, November 23, 2010 Dr. Tabrez Ahmad , http://iplexindia.blogspot.com
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1.
2.
3.
4.
PEPSI CAN Copyright in the packaging, colours etc. Trade mark in Pepsi Copyright in circular device Copyright in manner of writing Pepsi
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Adaptations of various works

MUSIC -- SONGS Original album New albums Remixes Version Recordings Pop versions DJ versions
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STORY PUBLISHED IN A
BOOK STORY ENACTED IN A DRAMA TRANSLATION TELE-SERIAL CINEMATOGRAPH FILM
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STORY
OPERA/BALLET
MUSICAL VERSION COMPILATION
Each of the above works, once created have a separate, new copyright, protectable as original works.
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POEMS
SONGS SOUND
RECORDINGS PERFORMANCES POETRY BOOKS COMPILATIONS OF POETRY, including expert comments
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PAINTINGS
Licensing as covers for books

Licensing on stamps
Create new versions by changing the sizes of the painting Calendars

Diaries etc.,
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Exceptions-fair use
Section 52 of the Copyright Act enlists acts
which do not constitute infringement, viz.

Fair dealing for the purpose of private use, including
research and criticism or review of the work. Fair dealing for the purpose of reporting current events in a newspaper, etc. reproduction for the purpose of judicial proceeding or report of judicial proceeding.
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Exceptions-fair use
Making of temporary or back-up copies to provide
against destruction or damage Observation, study or testing of functioning of the computer programme making of copies of software from a legal copy for non-commercial personal use
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Fair Dealing
Fair dealing is permitted for the purposes of

private study or research , criticism or review or the reporting of current events.
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Fair Dealing
Fair dealing with the literary, dramatic, musical or artistic work does not infringe any copyright in the work if used
for the purposes of research or private study, in the case of a published edition, in the typographical arrangement.
The aim of this provision is to give students and researchers greater access to copyright works.
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Fair Dealing or Permitted Acts

SEC 52(1)(o) : Making a maximum of 3 copies for the use
of a public library.
Sec 52(1)(c): Reproduction for judicial proceedings or for
the purpose of a report of a judicial proceeding. Judicial proceedings are defined as including proceedings before any court, tribunal, or person having authority to decide any matter affecting a persons legal rights or liabilities.
SEC 52 (1)(m) : Reproduction in newspaper and
magazine of the article of the current economic, political, social or religious topic in certain situation.
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SEC 52(1)(p): Reproduction of unpublished work kept
in a museum or library for the purpose of research or study. the exclusive use of members of any legislature or publication of a translation of acts of legislature or rules
Sec 52(1)(d) : Reproduction in any work prepared for
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Sec 52(1)(h) : Reproduction by a teacher or a pupil in
the course of instruction, or as part of a question paper or in answers to such questions.

e.g. It seems that the teacher may copy onto a blackboard a substantial part of a literary work, and pupil may copy it down. The teacher may however not photocopy the same material for the use by students in absence of a licensing agreement.
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SEC 52(1)(f ): Reading and recitation in public of extracts
(literary or dramatic).
SEC 52 (1)(g) : Publication in collection for the use of
educational institution in certain circumstances. Sec 52(1)(I) : Performance in course of activities of educational institutions in certain circumstances.
WORK OF ARCHITECTURE: SEC 52(1)(s) :The making or publishing of a painting ,drawing, engraving or photograph of a work of architecture does not constitute infringement.
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WORK OF ARTISTIC CRAFTSMANSHIP: SEC 52(1)(t): The making or publishing of a painting, drawing, engraving, or photograph of a sculpture, or other artistic work falling under the category of a work of artistic craftsmanship if the work is permanently situate in a public place or any premises to which the public has access will not constitute infringement.
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AUTHORS RIGHT TO USE MOULD, CAST etc. OF WORK:
SEC 52 (1)(v): The use by the author of an artistic work,
where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work
Provided that he does not thereby repeat or imitate the main
design of the work
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SEC 52(2) The exceptions to infringement listed under s.
52(1) in relation to literary, or dramatic, musical artistic work will apply also in relation to any translation or adaptation of such work
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Whether registration is essential?

Particulars needed for registration: 1. Name of author 2.Date of publication 3.Whether assignments are obtained 4. If it is an artistic work, then no-objection from Trade Marks Registry
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Whether registration is essential?

Advantages of registration: 1. Documentation comes in place in terms of assignments/no-objections from authors 2. Evidence of date when the work was created 3. Prima facie evidence of particulars 4. Easier to take action especially criminal action where police are convinced with copyright certificate. (re:software, music)
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Remedies
Civil remedy
A suit for infringement of copyright can lie in the District Court or in a High Court of Original Jurisdiction.
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Remedies contd.,
Civil remedy
Reliefs to be claimed: 1. Injunction coupled with Anton Piller orders, John Doe orders & Mareva injunction 2. Rendition of accounts, damages 3. Delivery Up
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Mareva Injunction
Freezing order Prevents the infringer / offender from removing / disposing of assets in which the gains from infringement have been invested.
Aim- unjust enrichment of the defendant and to ensure payment of damages to Plaintiff
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The Mareva Injunction (variously known also as a
freezing order or Mareva order), in Commonwealth jurisdictions, is a court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment. It is widely recognised in other common law jurisdictions and such orders can be made to have worldwide effect. It is variously construed as part of a court's inherent jurisdiction to restrain breaches of its process. It is named for Mareva Compania Naviera SA v International Bulkcarriers1, decided in 1975. It is recognised as being quite harsh on defendants because the order is often granted at the pre-trial stage in ex parte hearings, based on affidavit evidence alone. A Mareva injunction is often combined with an Anton Piller order in these circumstances.
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The purpose of a Mareva injunction is to protect the
interests of the plaintiff during the pendency of the suit and is granted to restrain the defendant from disposing of their assets within the jurisdiction until the trial ends or judgment in the action for infringement is passed. Mareva or freezing injunction is passed when there is evidence or material to show that the debtor is acting in a manner or is likely to act in a manner to frustrate subsequent order/decree of the court or tribunal. The Court therefore freezes the assets of the debtor to prevent the assets from being dissipated, to prevent irreparable harm to the creditor. It prevents a foreign defendant from removing his assets from the jurisdiction of the court. It is like and akin to "attachment before judgment" and conditions mentioned in the said provision should be satisfied before freezing junction order is passed.2
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Mareva Compania Naviera SA v International Bulk Carriers was
designed to make it significantly more difficult for debtors to put their assets outside the grasp of their creditors. In the19th century, courts had regularly refused to help creditors by imposing restrictions on debtors where the creditor had no legal or equitable interest in th relevant property. Mareva Injunctions are now regularly used to prevent the defendant either from removing assets from jurisdiction (now a days, of course, much easier to do with the possibilities of electronic transfer) or from handling the assets within the jurisdiction in a way, which would frustrate the plaintiffs attempts to enforce his rights. The jurisdiction has been developed so that it is normal for the plaintiff to apply to the court ex parte (that is without notice to the defendant). The obvious practical importance of this is clear. If the defendant knew that the plaintiff was going to make such an application, he would obviously, if he were so minded, move the assets before the court had time to make the order. Of course, this possibility is capable of causing serious hardship to the defendant and appropriate safeguards have therefore been developed. Followed in India in Formosa Plastic Corporation Ltd. v. Ashok Chauhan reported in 76(1998) DLT 817 and Uppal Eng. Co. (P) Ltd. v. Cimmco Birla Ltd. reported in MANU/DE/0909/2005
'Anton Piller Order

Ex-parte court injunction that requires a defendant to allow the plaintiff to (1) enter defendant's premises, (2) search for and take away any material evidence and, (3) force the defendant to answer some questions. Employed usually in cases of possible copyright violation, its primary objective is to prevent destruction or removal of evidence. This order is not a search warrant, but the defendant is in contempt of court if he or she refuses to comply. Named after the 1976 UK case of 'Anton Piller KG v. Manufacturing Processes.' Nowadays called search order
An Anton Pillar order (or 'search order') is a court order
requiring a defendant to grant access to property and/or premises, to allow the claimant to conduct a search for evidence that may be easily disposed of upon notice of legal proceedings. Such an order is applied for to the court without notice (i.e. ex parte) to the defendant. These types of orders arose from the case Anton Pillar KG v Manufacturing Processes Ltd. That case involved an action for copyright infringement and misuse of confidential information. The claimant was concerned that if the defendant had notice of the legal proceedings that were commenced in the ordinary way, that relevant evidence would be destroyed, defeating the opportunity for the court to conduct a fair trial. Thus the court was prepared to order that the claimant was authorised to inspect the defendant's premises and seize documents relevant to the legal proceedings.
In that case, Ormond LJ specified three pre-conditions that must be satisfied prior to the making of an order: there must be an extremely strong prima facie case; the potential or actual damage to the claimant must be very serious; there must be clear evidence that the intended defendants have documents or things in their possession that would give rise to liability, and there was a real possibility that it would be destroyed prior to the hearing of application by notice
These criterion are applied flexibly to an extent, and the court will
apply the criterion with an eye for proportionality of the damage that might be suffered and the extent of the relief granted. The moving factor for an order is the risk of a denial of justice to the claimant in bring consequent legal proceedings. Such orders are usually available where documents or property have been stolen or some other history of dishonesty on the part of the defendant is demonstrated. They are frequently used in intellectual property legal proceedings where counterfeiting or piracy is involved. These orders are only available where the claimant is able to demonstrate to the court that if the defendant were forewarned that there is a real danger that vital evidence would be destroyed or hidden, and thus depriving the claimant of the opportunity of justice being done between the parties. The court will also look to the company accounts of the claimant prior to granting the order. If there is a possibility that the claimant will not be able to pay the defendant's costs in the event that the order was wrongly made for want of full and frank disclosure or any other reason, the court will insist on a bank guarantee or some other means of security from the claimant prior to making the order sought.
John Doe order

John Doe orders are passed to enable the seizure of infringing
goods wherever they may be located and operate against any potential defendant, who is subsequently identified as the counterfeiter/infringer. The real significance of these orders is the extent to which it impacts the persons who might be infringing or inclined to infringe, even though their identities are not yet known. The rationale has been adopted by American, English, Canadian and Austrian courts and which, was held to be applicable and justified to Indian Courts as well. In the case of Taj Television & Anr v Rajan Mandal & Ors [IA NO. 5628/2002 in CS (OS) 1072/2002] John Doe orders were granted in India for the first time, whereby the Commissioner was empowered to enter the premises of any cable operator illegally airing the football World Cup 2002.
A John Doe type of order was also passed vide the ex parte
order directed in respect of the case ofArdath Tobacco Co. Ltd. v. Munna Bhai and Ors. [CS (OS) 141/2004, 2009 (39)PTC 208 (Del.)] Ardath Tobacco Company Ltd. engaged in the business of manufacture and sale of internationally known cigarettes STATE EXPRESS 555, instituted a suit to restrain Munna Bhai and his codefendants vendors/ stockists of cigarettes at Calcutta and Delhi from dealing in cigarettes under the label PEACOCK, but the packaging and trade dress whereof is identical or deceptively similar to that of Ardath' cigarettes. Ardath also sought an order in the nature of "John Doe" .
Munna Bhai and co-party were, vide an ex parte order
restrained from manufacturing, selling, stocking or dealing in cigarettes under a label, carton or packaging material deceptively similar to the label, carton and packaging material and artistic work as of the STATE EXPRESS 555. Munna Bhai appeared through counsel and also filed a counter affidavit in this court. However, subsequently the ex parte order was proceeded against. Other defendants also failed to appear in spite of service and were also proceeded against ex parte. One of the defendants died during the pendency of the suit and his legal heirs were ordered to be substituted. Some of the defendants and the legal heirs of the deceased defendant compromised the matter with Ardath Tobacco and decrees in terms of the said compromise were passed against them. The suit now survived against the parties who conducted business in Calcutta.
The ex parte order had ordered the appointment of two court commissioners, one for visiting the premises of the defendants situated in Delhi and the other for visiting the premises of the defendants in Calcutta as well as any other premises as where the impugned goods were suspected to be stocked. The Court Commissioners appointed to visit the premises at Calcutta, found the infringing goods in the premises of the defendants as also in the neighborhood premises and took possession of all the infringing goods and delivered the same to Ardath Tobacco.
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In spite of the Court Commissioner having found infringing goods in the premises of Munna Bhai his counter affidavit filed earlier did not deal at all with the visit by or the report of the Court Commissioner. He merely averred that he did not deal in the infringing goods; no objections were filed to the report of the Court Commissioner which Ardath tendered as part of its ex parte evidence. The counsel for Ardath in his affidavit by way of examination in chief by way of ex parte evidence proved the trademark registrations of Ardath Tobacco and the device i.e., WORD MARK 555 of the device of a sunburst medallion with 555 engrossed therein as exhibits, hence proving himself to be the registered proprietor of the aforesaid word/device inter alia, in relation to cigarettes.
The Court on perusal of the exhibits found that the cigarettes marketed/stocked by Munna Bhai and others had copied the trade dress of Ardath Tobacco. Comparing the packaging of the two parties the Court stated that although Ardath' product did not bear the numerals 555 and the mark/name STATE EXPRESS but an unwary customer was likely to be mistaken by the packaging.
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The Court opined that the sale of cigarettes in India was different
from the Western countries. In Western Countries sale of loose cigarettes is not the norm, while in India sale of loose cigarettes is a common practice. Any action for infringement of trademark in relation to cigarettes in this country was stated to be viewed/tested in this light. It was also stated that customers normally did not get to see the packet or the whole of it but may get to see only the colour or the trade dress of the packet and identify the brand. The individual cigarettes was observed to be devoid of the trade name or the manufacturer's name boldly. In such circumstances, the colour of the packaging and the trade dress was stated to assume special significance. The Court stated that the cigarettes being marketed by the defendants may not fool or deceive a buyer of a packet but that the same had the potential to deceive or confuse the buyer of loose cigarettes, who constitute a large section of the buyers of the said product. In this light, an attempt to pass off or sell the goods as those of Ardath was said to have been made out.
The Court noted that Munna Bhai and his co-parties were
stockists or vendors of the said cigarettes and not manufacturers. The said cigarettes were averred by Ardath to have been are manufactured in Myanmar and smuggled into India through the border and in violation of other laws. The Court stated that for this reason Ardath was allowed to prohibit their sale in India by the vendors/stockiest but was not in a position to act against the manufacturers. The Court reiterated that in the plaint reliance was also placed on 'John Doe' order in pursuance whereto the premises of which the search and seizure was conducted and that since apart from the defendants to this suit, no other person against whom the order may be extended had been brought forth, till the disposal of the suit, the same had been decreed against the defendants only for the relief of permanent injunction in terms of the plaint. A decree for recovery of damages in the sum of Rs 25,000/- from each of the defendants was also passed in favour of Ardath. Ardath was also held to be entitled to proportionate costs of the suit from Munna Bhai and others.
Remedies contd
Criminal:
Copyright infringement is a cognisable offence. A criminal complaint can be filed either before the police or a Magistrate and search & seizure orders can be obtained.
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Pros & Cons of Civil remedies

PROS Proper judicial determination of rights Likelihood of earning damages Less subject to challenge Commissioners seizure orders are more respected
CONS Delays - Trial, Appeal, Supreme Court Damages not usually awarded No severe punishment for violation of rights
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Pros & Cons-Criminal remedies

PROS Quick remedy Greater possibility of curbing violation quickly because of fear of being arrested in a criminal case
CONS Chances of seizure of goods may be less as there can be a leakage Difficulty in coordinating with police authorities
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CRIMINAL REMEDIES
Section 63 of the Copyright Act,1957 defines offence of infringement of copyright. Infringement of copyright is a cognizable offence punishable with imprisonment upto 3 years and fine upto 2 lakh rupees
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Copyright & Design

Design is for aesthetic appearance. Anything functional is not registrable as a design
Copyright in a design comes to an end if the work has industrial application and is reproduced more than 50 times
Is there diff. between copyright in a design and copyright in a drawing. Yes.
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Confusion is worse with Trade mark definition being amended Shape is also a trade mark But articles like dresses, sculpture etc., cannot come in trade marks. However commercial products have more overlaps in protection.
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Designs
Design As per Copinger and Skone James on Copyright, a design is, in broad terms, the plan or scheme for the appearance of an article (or a part of an article).
It primarily concerns with what an article looks like or is
intended to look like.
It is not concerned with how an article performs its function.
The design of an article may be recorded in any form including the written description, sketch, drawing, photograph or it could actually be embodied in the article itself. Design has also been defined as the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.
Copinger & Skone James on Copyright, 15th Edn., Vol. 1, pg. 730
Infringement
Infringement in the context of Indian Textiles, Apparels and Life
Style Industry:
Indian Textiles:
If artistic patterns are drawn up on a piece of cloth to be used for any
purpose, including but not limited to for instance, making of garments, bed sheets, sofa covers, table cloths, etc., then the artistic patterns printed on the piece of cloth are protected as copyrights.
garment to be used as a fashionable attire, then the sketch/ drawing that is drawn of the pattern of the garment is protected as a copyright.
On the other hand, if a designer of clothes creates a new pattern of
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Infringement
However, once the idea of the creative pattern is
implemented on the piece of cloth, then the same may be protected as a design right.
If, the intention of the designer is to ensure that only
one piece of the garment is manufactured, then the same could also be protected as the artistic work imprinted on the piece of cloth having copyrights.
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Infringement
Alternatively, if the designers intention is to produce
several thousands of garments in different scheme of colours, etc., then the intention of the designer is to use the said design in the industry. Accordingly, the latter form of use of the same material may be considered to be a design. depends on the manner, in which the author of the work intends to use the work.
There is an ongoing debate on the issue and a lot
83
84
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court
85
Cases
Allegation that the Defendants garments were copies of the
garments designed and crafted by the Plaintiff

The said garments were supposed to be developed, designed and
crafted by the plaintiff as a part of their collection for the year 2006
The Honble Delhi High Court vide order dated 21.10.2008
granted ex-parte ad-interim injunction
86
Cases
Defendant served notice. Application for vacation of stay moved claiming that both
designs are separate.

The impugned prints are generic Jamawar Prints Matter is sub-judice Referred to Mediation
87
Cases
Suneet Varma Design Pvt. Ltd. Vs Jas Kirat Singh Narula & Anr. [2007 (34) PTC 81 (Del)]
Allegation of infringement of
copyright as the defendant used the dress in a movie which was worn by an actress actors and actresses in a film play special role and serve purpose of promotion of the movie
Importance of costumes worn by
Held that all kinds of clothes worn by actors cannot be stated as Fair Use
permitted under sec 52 (1) (u).
88
Cases
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32) PTC 157 (Del)
Case relating to design of upholstery
Plaintiff claimed to have copyright in the
artistic work applied to upholstery design Did not have a registered design however they claimed a copyright in the drawings
89
Cases
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32) PTC 157 (Del)
Question was whether without a registered design, the
plaintiff could protect the same and whether the copyright was lost because of more than 50 reproduction of the said upholstery fabric design
The Court although upholding that the motives etc. of the
plaintiff was artistic and also holding that the defendants had copied it, on a legal and technical argument that more than 50 reproduction had been made, refused to grant injunction
90
Cases
1997(17) PTC 268: Baldev Singh vs. Shriram Footwear
Plaintiff claimed an injunction on the ground that his
designs of shoe soles had distinctive shape and configuration
During the course of argument, it was revealed that
the plaintiff himself had copied designs from Bata India Ltd. pirater, no injunction can be granted in favour of the plaintiff
Thus Court had held that the plaintiff himself being a
91
Cases
Hindustan Sanitaryware & Industries Ltd. vs. Dip Crafts Industries: 2003(26) PTC163 (Del)
Case under the Designs Act, 2000 Plaintiff had claimed that defendants copied the design
Stylush, Corel and Ultra in respect of bath tubs Defendant had not established that he had been selling bath tubs prior to the registration obtained by plaintiff in respect of similar designs Plaintiff had a registered design Sufficient resemblance between the two designs and the plaintiffs design was protected
92
Cases
Metro Plastic Industries (Regd.) vs. M/s. Galaxy Footwear New Delhi: 2000(20) PTC 1
Judgment of full bench of Delhi High Court Holds primarily that in a case filed for infringement of a design,
the defendant would be entitled to take a defence that the registration of the design itself was incorrect Various grounds can be taken for claim that the registration was granted wrongly, namely, that the design is not new or original or unique If any of the grounds can be proved, then the fact that the design is registered by itself, does not come to the aid of the plaintiff Registration can be a proof at the first stage but it has to be established that this was not copied design and that it is a new and original
93
Cases
Dabur India Ltd. Vs. Rajesh Kumar & Ors 2008 (37) PTC 227
Suit filed alleging infringement of design in respect of a bottle
which is being used by plaintiff for packing hair oil Court found plaintiffs bottle to be common bottle used by several other companies Bottles were held to be in use much prior to the registration of the design of the plaintiff No peculiar feature of the bottle registered as a design and the plaintiff had not pin pointed any novelty in the design of the bottle Held that for validly of the registered design there must be some novelty and originality in the design sought to be protected and it must have not been pre-published
94
Cases
Vikas Jain Vs. Aftab Ahmad And Ors, 2008 (37) PTC 288 (Del)
Suit filed for the infringement as well as passing off of design in
Toy Scooter The defendant pleaded the prior publication of the design Another defense taken by the defendant was that the defendant too was having the registration of the design Court held that there were various dissimilarities in the prior published design The design of the defendant was identical to the design of the plaintiff Hence the defendant is not protected even on account of the registration having been obtained by it which admittedly is the subsequent registration
95
Cases
Reckitt Benckiser Australia Pty Ltd. And Anr Vs. R. B. Impex And Ors 2008 (37) PTC 262 (Del)
Suit for infringement of a design, where the defendant had filed a
cancellation petition with the Controller of Designs Proceedings pending before the controller of Design who had heard the arguments in the cancellation petition before him and the order had been reserved Defendant had also sought the transfer of the cancellation proceedings from the Controller to the Honble Delhi High Court Honble High Court declined to stay the proceedings pending before the Controller and to order for the transfer of those proceedings as there was no provision for the transfer of the cancellation proceedings under the Act
96
Cases
Sat Pal Singh Vs. S.P. Engineering Works - 1982(2) PTC 193
Single Judge of this Court held that once a design was registered,
prima facie, it was only the registered proprietor, who could take benefit of the registered design The Court then negatived the contention that even if a false plea about the validity of registration was taken up by a Defendant, no interim injunction should be granted. The Court went on to hold that the contention that the design had no novelty was a valid defence to the Suit and could be raised to challenge the validity of the registration. It further held that this did not have any bearing at the initial stage and that these were matters to be decided on evidence. It must be mentioned that after so holding the Court, went into the merits and held that in that case it had not been shown that the design was previously published
97
Cases
Faber Castell Vs. Pikpen - 2003 PTC 538
Faber Castell Textliner. A dark green body Unique cap of same colour as
colour of ink Gold lettering on green body Regd design. Prior Publication could be through prior documents or some other prior user. Injunction granted
98
Cases
Samsonite Vs. Vijay Sales 1998 PTC 372
Suitcases made by plaintiff
copied by defendant The entire range was copied Claim was based on drawings & copyright No registered design No protection granted as it is manufactured industrially more than 50 times.
99
Cases
Preeti Gupta Vs. Rajendra Prahladkar 2002 PTC 64
Design of photo-frames
Registered design
Defendant no.2 was an
employee of plaintiff Injunction granted protecting the copyright in the design of photo-frames
100
101
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v SPINCERS DRESS DESIGN Ltd.(1975) FSR 455
Plaintiff & defendant
manufacture ladies clothing. Copyright claimed in 3 stages of Manufacturing Procedure viz., - design sketches, - cutting patterns - prototype garments
102
Def argued
Prototype is not work of
artis.crtms. No one author is involved Cutting patterns are functional One of the sketches was copied from earlier dress Dress could not reproduce a sketch Stiffness was to be given otherwise it is not a dress Delay
103
Court Held:
It is work of A.C
Need not unite with one
author Dress can be a 3 dimensional reproduction of a sketch Huge diff between the earlier dress and new one, hence plaintiff work is original
104
BRIGID FOLEY Ltd. v ELLOT (1982) RPC 433
It has been observed that if there is a direct copying from a garment which one person has designed and produced by himself, doing all the cutting , stitching, and so on, there might be a case for saying that there would be a breach of doing that.
105
BERNSTEIN v SYDNEY MURRAY(1981) RPC 303
The plaintiffs were owners of
copyright in certain sketches for ladies garments in which the garments were shown as worn by ladies. They had displayed garments made from such sketches in fashion shows and shop windows. Defendants have copied the dresses produced from plaintiffs sketches. It was held that this constituted infringement of copyright in sketches.
106
BURKE and MARGOT BURKE Ltd. v SPINCERS DRESS DESIGNS (1936) CH D 400
The
plaintiffs alleged that defendants had infringed the copyright in the sketch described as frock being worn by a young lady It was also alleged that there was infringement of artistic copyrights in dresses made up by the plaintiffs in accordance with those sketches, which dress themselves were said to be works of artistic craftsmanship It was held that thee was no infringement of a sketch by a frock.
107
In MERLET v MOTHERCARE Ltd (1986) RPC 115

The plaintiff made a prototype baby cape for her child. The cape was subsequently
manufactured by the second plaintiff. The defendants copied the plaintiffs garments and made baby cape in accordance with the copy. The plaintiff claiming the handmade prototype garment as a work of craftsmanship it was not a work of artistic craftsmanship brought an action for infringement of copyright.
108
In MERLET v MOTHERCARE Ltd (1986) RPC 115

It was held that though the
prototype was a work of craftsmanship it was not a work of artistic craftsmanship. It was held that in approaching the question the garment has to be considered by itself and neither as worn nor as containing a baby. No aesthetic satisfaction unless worn on the baby Action was dismissed. An appeal against infringement of certain drawings was dismissed.
109
KOMESAROFF v MICKLE (1988) RPC 204
A product called (moving
sand pictures) comprising a mixture of liquid, colored sands, and a layer of air bubbles encased within two glass panels was held not a work of artistic craftsmanship. They are functional not regd design
110
Cases
MERCANDISING
CORPORATION v HARPBOND(1983) FSR 32 P, 32 (Facial makeup was not held a painting within the meaning of sec 3 of the U.K. copyright act.)
111
Ford Motor Co.1993 RPC 399

Vehicle parts are not subject matter of design because they have no
value in commerce except as part of a vehicle Mirrors, seats, etc., were capable of registration as substitution was possible without affecting shape of the vehicle. The distinction that seems to have been drawn is that there are several parts which are mostly hidden and never seen, such parts cannot be registered as designs. However, parts and their circuits if in drawing form are artistic works
112
George Hensher Ltd s. Restawile Upholstery 1975 RPC 31
Upholstered chairs & settees. One prototype was evolved chairs were copied from it
and sold Def. copied the chairs and hence the prototype Trial Court granted injunction. Appeal court dismissed the injunction. HL refused protection
113
George Hensher Ltd s. Restawile Upholstery 1975 RPC 31
Artistic craftsmanship need not necessarily mean
work of art. The product may be a commercial success but need not be of Art craftsmanship
114
Merchandising Corpn Vs. Harpbond 1983 FSR 32

Adam from the pop group Adam & Ants New look for himself with RedIndian face markings Two red lines in grease paint, light
blue line in between, heart over left eyebrow & a beauty spot Def. made a poster of it & made a portrait & superimposed new look over an old poster In infringement action court held that this is not a painting and hence not protectable.
115
Animal Fair Inc., Vs. Amfesco Inds 227 USPQ 817 (1985)
Novelty slippers Resembles a bears foot or paw Slippers design features
separate from its utilitarian features, incl. impractical width of sole, shape of sole, profile of slipper, toes which are unrelated to function and copyrightable. Injunction granted.
116
CONCLUSION
Technological advancement made the job of the creator easy it also made the job of the copier easy.
Consciousness in IPR is the only way to prevent the latter.
117
Exceptions to Protection (Free Use or Fair Deal)

Quotations for commentary; Illustration for Teaching;
Current News Reporting etc.
Free Use is decided by amount of work used and its economic implications to the right holder. The mention of original author/source is must.
118
Related Rights
119
Related Rights (Neighbouring Rights)

Rights related to dissemination of copyrighted work They protect: Performers of Work Producers of Phonograms Broadcasting Organizations
120
International Agreements
Paris convention for the protection of Industrial Property (1883) Berne convention for protection of Literary and Artistic Works (1886)
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (1994)
121
Emerging Issues in IPR

Traditional Knowledge and Expression of Culture (Folklore) Biodiversity and Genetic Resources Electronic Commerce;
Internet Domain Names;

Protection of databases, software
122

Copyright Law

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Dr. Tabrez Ahmad Associate Professor of Law

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Tuesday, http://iplexindia.blogspot.com Dr. Tabrez Ahmad , November 23, 2010 2

1. The possible reliefs to a cybercrime victim and

Categories of copyrighted works

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Rights covered under CR

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Who are the Authors?

Painter; Music composer;

Cinematographer; Photographer etc.

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COPYRIGHT - A GLOBAL RIGHT

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Examples of some works

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Examples of some works

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Dr. Tabrez Ahmad , http://iplexindia.blogspot.com

Examples of some works

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Dr. Tabrez Ahmad , http://iplexindia.blogspot.com

Examples of some works

Tuesday, November 23, 2010

Creativity starts from the very moment the

Tuesday, November 23, 2010

Dr. Tabrez Ahmad , http://iplexindia.blogspot.com

Tuesday, November 23, 2010

Dr. Tabrez Ahmad , http://iplexindia.blogspot.com

above stages of creation of a product ought to protect their creation.

ensure that such works are not misused or plagiarised

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Dr. Tabrez Ahmad , http://iplexindia.blogspot.com

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lifetime of author + 60 years

from the date of publishing

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What constitutes infringement?

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