For circulation amongst the online course subscribers

Paper II
Study Material on

COPYRIGHT
Prepared and revised by
Mr. Jagdish Sagar Mr. Zakir Thomas Dr. Raman Mittal

Indian Law Institute

Bhagwan Das Road New Delhi - 110001

PART II

ADMINISTRATION OF COPYRIGHT
One of the primary conditions for enforcing your right in any property dispute is to establish a clear title of ownership. This is no different in the case of intangible property as well. Ownership of copyright in a work is independent of the physical material in which the work is fixed. For example, a person who owns a book does not own the copyright therein. In the same vein, you do not own the copyright in the contents of these materials in your hands. Section 17 of the Copyright Act deals with the concept of ownership. You may like to read this section carefully. Some salient points are noted below. Statutory Definition of Ownership of Copyright: S. 17: The author of the work is the first owner of copyright therein. There are exceptions to this general rule as provided in the section. 1) Journalistic Works: In the case of literary, dramatic or artistic work made by an author during the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

2)

Photographs, etc.: In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

3)

Employment: In the case of a work made in the course of the authors employment under a contract of service or apprenticeship, the employer (not being the proprietor of a newspaper, magazine or periodical) shall, in the absence of an agreement to the contrary be the first owner of copyright therein.

4)

Lectures, Speeches, etc.: In the case of any address or speech delivered to the public, the person who has delivered the speech to the public shall be the owner of copyright and in case where a person has delivered the speech on behalf of any other person, such other person shall be the first owner of copyright.

5)

Government Works: In the case of a government work, government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

6)

Works made by Public Undertakings: In the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

7)

Works of Certain International Organizations: In case of international organizations covered under section 41, such organizations shall be the first owner of copyright.

Contract of Service and Contract for Service: A student of copyright law should know the difference between these two terms as it has impact on ownership of copyright. A contract of service is not the same as contract for services. The distinction is the same as that between an employee and an independent contractor. An employee is subject to commands of his employer as to the manner in which he shall work while in the case of a person under contract for services such direct control is absent. In general, in a contract

of service a master servant (employer-employee) relationship is present which is absent in the case of contract for service. The general principle is that when something is done or produced by a person in the employment of another, and what he produces is part of the business or duty assigned to him, the employer shall be the owner of copyright in the work so produced. If a man entrusts another to do certain work but leaves it to such person to decide how that work shall be done, how to go about producing the work and so on, then it shall be a contract for service. In such cases the ownership of copyright vests in the author. Some Examples: Employee Teacher: If an employee teacher writes a textbook on the subject he teaches, he is the author of the work and is entitled to copyright because he is employed to teach and not to write textbooks. Collective Work: In the case of a collective work (like an anthology, newspaper, dictionary, an encyclopedia, etc.) copyright subsists in the work as a whole and the first owner is the person who has collected, edited and organized the work. Musical Work: The author of a musical work is the composer of the work and is the first owner of copyright therein. Artistic Work: The author of an artistic work (other than in the case of photographs discussed in S.17) is the artist who created the work and therefore is the first owner of copyright. Photograph: The person taking the photograph is the author of the work and hence is the first owner of copyright therein. If the photograph is taken for valuable consideration at

the instance of another person, such person, in the absence of an agreement to the contrary is the owner of copyright (Sec. 17) Cinematograph films: The author of a cinematograph film is the producer and hence is the first owner of copyright therein. Exercise: Think of other situations and examine who shall be the owner of copyright (examples: drawings, sound recordings, work produced on apprenticeship and so on). Exploitation of the Work: Transfer of Copyright Negative Right: The rights conferred under copyright are negative in nature. It enables the copyright owner to stop others from exploiting the work without express consent. Copyright is a bundle of rights, which can be exploited independently. The rights conferred under each category of works can be utilized in exploitation of the work either separately or together. Economic Rights: The rights conferred by section 14 are referred to as economic rights as the transfer of these rights for exploitation of the work results in economic benefit to the author. The owner of copyright may exploit the work herself or authorize others to do so by transferring one or more of the rights for a consideration. Such consideration is referred to as royalty. Exploitation of the Rights: Copyright is a bundle of rights. Each of these rights can be jointly and severally exploited. For example, in the case of a novel, there are various rights which can be separately exploited. It can be published as a book, or serialized in magazines or newspapers. It can be translated, dramatized or made into cinematograph films. Each of these acts may involve a right granted to the author by the law. Each of these rights can be transferred either wholly for the term of copyright or for a limited term. They can also be transferred with geographic restrictions; for example, film rights are often transferred territorially. Such transfer can be done through assignment or

through licensing. Both these terms have legally significant differences and should be understood in that context. Assignment of Copyright: See, Sections 18, 19 and 19A An assignment of copyright is in essence a transfer of ownership in the copyright of the work. An assignment may be for whole of the rights or for part only. A valid assignment of copyright in any work can be made only in writing. An oral assignment is invalid in law. An assignment should be in writing. An assignment is a contract entered into between two parties and it need not be in any special form and no particular words are required to constitute an assignment. But section 19 (1) of the Act mandates that an assignment should be in writing and should be signed by the assignor or his duly authorized agent. An assignment deed in relation to a work should specify the following particulars: 1) identification of the work assigned, (19(2)) 2) specify the rights assigned (19(2)) 3) duration of the assignment (19(2)) 4) territorial extent of such assignment (19(2)) 5) specify the amount of royalty payable (19 (3)) and 6) shall be subject to revision, termination or extension on terms mutually agreed upon by the parties(19(3)). Where the assignee does not exercise the rights assigned within a period of one year form the date of assignment, the assignment in respect of such rights shall be deemed to have been lapsed after this period of one year unless otherwise specified in the assignment. If the period of assignment is not stated it shall be deemed to be five years from the date of assignment. The territorial extent of not specified shall be deemed to be the whole of India.

In respect to a particular work each of the rights specified in section 14 may be assigned to different persons. Thus, assignment may be made either partially or wholly and either generally or subject to limitations and either for the whole term of the copyright or any part thereof. It may also be limited to a particular territory. A person who holds a right from the author himself may further assign the rights. An assignee can sue for infringement of rights without joining the assignor since he is the exclusive owner of the rights subject to assignment. A partial assignee can also independently sue for infringement. An author of a work who has assigned some or all the rights does not enjoy those rights anymore and cannot exercise them anymore without attracting the charges of infringement. If the author infringes any of the rights assigned the assignor can sue the author for infringement. Future Works: Section 18 provides that copyright can be assigned even in respect of future works of the author before their coming into existence. But in such cases the assignment will take effect only when the work comes into existence. Disputes with Respect to Assignment: Section 19A: If an assignee fails to make sufficient exercise of rights assigned to him, and such failure is not attributable to any act or omission of the assignor, the Copyright Board may, on receipt of a complaint from the assignor and after holding such enquiry as it may deem fit, revoke the assignment. However no order for revocation of the assignment will be passed unless it is satisfied that the terms of the assignment are harsh to the assignor in case the assignor also is the author. Further, no order of revocation will be passed within five years form the date of such assignment. Transmission of Copyright by Operation of Law: Section 20: Copyright being in the nature of personal property right can be transferred by testamentary disposition or by operation of law as in the case of real properties. Section 20 provides that the manuscript

of a literary dramatic or musical work or an artistic work has been bequeathed to a beneficiary without specifically bequeathing the copyright the bequest will carry with it the copyright also unless a contrary intention appears from the will. Relinquishment of copyright: Section 21: The author of a work may relinquish all or any of the rights comprised in the copyright in any work by giving notice to the Registrar of copyright in the prescribed form. The Registrar will cause the notice to be published in the official gazzatte or in other ways. Licenses A license is an authorization of an act, which, without such authorization becomes infringement. In essence a license is a grant of authority to do a particular thing which other wise could not have been done. It amounts to a consent or permission granted by the owner of copyright that the licensee could carry out a restricted act which but for such permission could have been an infringement. The Act provides that the owner of copyright in an existing work or the prospective owner of copyright in a future work may grant any interest in the right by license in writing signed by him or his duly authorized agent (Section 30). The license so granted should be in writing and should be signed by the copyright owner or by his duly authosrised agent. Exclusive and Non Exclusive Licenses: The licenses may be exclusive or non exclusive. Non exclusive license has not been defined in the act. The term exclusive license has been defined in the Act in section 2(j) as a license which confers on the licensee and persons authorized by him, to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in the work.

A non exclusive license on the other hand does not convey any right of exclusion. It is only a grant of an authority to do a particular thing which other wise would have constituted infringement. When a right owner grants an exclusive right, he denudes himself of all the rights and retains no claim on the economic rights so transferred. In the case of non exclusive license the licensor retains the rights to grant further licenses. License and Assignment: A license is different from an assignment. In an assignment there is transfer of ownership of the rights. The assignment leaves nothing in the grantor qua the right assigned bestowing in the grantee the whole of the legal interest in the right. Thus an assignee can sue for the infringement of the right assigned. Thus in an assignment, the assignee becomes the owner of the interest assigned whereas in the case of a license the licensee gets the authorisation to exercise particular rights subject to the conditions of the license but does not become the owner of the right. A licensee cannot sue for infringement of copyright unless he joins the copyright owner as a co plaintiff in the action. Section 61 of the Act provides that in every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the owner of copyright shall be made a defendant, unless the court otherwise directs. In such situations the owner of the copyright can dispute the claim of exclusive license. This provision thus protects the interests of the right holders. Form and Content of License- Section 30, 30A: The provisions relating to assignment detailed in sections 19 and 19A are applicable in the case of licenses also. Hence a license deed also should be in writing specifying the rights so licensed. As drawn from section 19 relating to assignment a license deed should contain the following particulars: 1) identification of the work licensed, 2) specify the rights 3) duration of the license 4) territorial extent of the license 5) the amount of royalty payable and

6) shall be subject to revision, termination or extension on terms mutually agreed upon by the parties. If the rights licensed are not specified it will be presumed that the licensor has granted all rights under the Act. If the licensee does not exercise the rights licensed to him within one year from the date of license, the license in respect of such rights will be deemed to have lapsed after the expiry of one year unless otherwise specified in the license deed. If the period of license is not stated it will be deemed to be five years from the date of license. If the territorial extent is not specified it will be presumed to extent to the whole of India. Revocation of License by the Board: If the licensee fails to make sufficient exercise of the rights licensed to him and such failure is not attributable to any act or omission of the licensor the licensor may make a complaint to the Copyright Board which after holding an enquiry may revoke the license. Kinds of Licenses: Licenses contemplated in the Act fall under two categories: 1) licenses granted by the author or voluntary licenses 2) licenses granted under compulsion or as per the operation of law, or granted by the copyright board under the terms of the Act, termed as compulsory license. Voluntary licenses could either be exclusive license or non exclusive license as discussed in the preceding paragraphs. In the second category, the Act provides for compulsory licenses in four instances as set out below:

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1) Compulsory license to republish or perform in public Indian works already published or performed in public, but thereafter withheld from public. (Section 31). For the purposes of this section the Act defines Indian works as: i) a literary, dramatic or musical work: a) which is first published in India, or b) author of which is a citizen of India, or c) the author of which , in the case of an unpublished work, is at the time of making the work a citizen of India. ii) an artistic work the author of which is a citizen of India iii) a cinematograph film or record made or manufactured in India. The compulsory licensing contemplated under this provision is to republish or to allow the republication of a work or to allow the performance of a work in public, or to broadcast a work. Such licenses will be issued in case of unreasonable refusal of the owner of the copyright in the work which had already been published or performed in public to allow its republication, or performance or broadcast, resulting in the work being withheld from public. Upon receipt of a complaint of such refusal he Copyright Board may hold an enquiry into the complaint and if satisfied that the grounds of such refusal are not satisfactory, direct the Registrar to grant to the complainant a license to republish the work, or to perform it in public or to broadcast it, subject to the payment of such compensation to the copyright owner and subject to such terms and conditions as the Board may determine. In order to protect the interest of the right holder, there are built in safeguards like provision of reasonable opportunity for being heard in the enquiry before the Board. 2) Compulsory licenses to publish unpublished Indian works or their translations (section 31A):

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If in the case of a published or an unpublished Indian work (defined in section 31) or a translation thereof in any language, if the author of the work is dead or unknown or cannot be traced or the author of the work cannot be found, any person may apply to the Copyright Board for a license to publish such work or a translation thereof in any language. Before making such an application the person who wants to publish such work or translation thereof must first advertise his proposal in a national English daily newspaper and in the case of translation, in a regional language daily newspaper. Then an application in the prescribed form may be submitted to the Copyright Board with a copy of the advertisement. The Board is empowered to conduct an enquiry and direct the Registrar to grant the applicant a license to publish the work or the translation, subject to the payment of royalty and compliance to such other terms and conditions as the Board may determine. Apart from the above compulsory licensing provision the Act empowers the Central Government, if the original author of an unpublished work is dead, to require the heirs or legal representatives of the author, to publish of such unpublished work, if such publication is considered in national interest. Where any work is not published within the period specified by the Central Government the Copyright Board may on an application made by any person to publish such a work, permit the publication of the work on payment of such royalty as the Board may determine. 3) Compulsory Licenses to produce and publish translations of literary or dramatic works ( Section 32 of the Act): This section empowers the Copyright Board to grant license to any person to publish a translation of a literary or dramatic work in any language after a period of seven years from the publication of the work. If the work is a non- Indian work and the application is for publication in a language in general use in India which is not used in developed countries, then the above period may be reduced to three years. A broadcasting authority may also apply to the Copyright Board for a license to produce and publish the translation of a non Indian work, or any text incorporated in audio visual fixations prepared and published solely for the purposes of systematic

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instructional activities for broadcasting such translation for the purpose of teaching or for dessiminating information on any field to the experts in that field. On receipt of an application the Copyright Board may grant a license, which is non exclusive to the applicant to produce and publish the translation of the work in a language mentioned in the application after hearing the parties and subject to certain conditions specified in Section 32. For the sake of brevity such conditions are not reproduce here and you may refer to the provisions of the section. 4) Compulsory license to produce and publish literary, scientific or artistic works (section 32A): This section contemplates the granting of compulsory licenses to reproduce and publish literary, scientific or artistic works. An application for this compulsory license can be made after i)seven years in the case of any work of or relating to, fiction, poetry, drama, music or art; ii) three years in the case of any work of or relating to natural science, physical science, mathematics or technology; and iii) five years in any other case. If after the expiry of the relevant period from the date of first publication abroad, copies of such work are not available in India, or such copies have not been put on sale in India for a period of six months, to the general public or in connection with systematic instructional activities at a price reasonably related to those charged in India for comparable works , any person may make an application to the Copyright Board which may after holding necessary enquiries may issue a non exclusive license to produce and publish such work. The compulsory license granted in this section shall come to an end if the copyright owner or any person authorized by him publishes the work in India at a price reasonably related to the price normally charged in India for similar works and serves upon a notice on the person holding the license in the prescribed manner. The termination takes effect after three months from the date of service of the notice but does not affect the sale and distribution of the copies already produced by the licensee before the termination took effect.

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5) Compulsory license for the production of Sound Recordings (section 52 (1)(j)): This provision which falls under the fair use section of the Act grants a compulsory license for the production of sound recordings of literary, dramatic or musical work under certain conditions. The difference in this section with the provisions discussed above is that it does not require an application to the Copyright Board and that the license is automatic if the conditions prescribed in the section are fulfilled. (However the section requires the Copyright Board to determine the royalties payable in this regard). Hence this provision is at times referred to as statutory license. This provision enables making of records of a sound recording by any person by giving the prescribed notice of the intention to make the records and paying the prescribed manner royalties in respect of all such records to the owner of copyright in the work. Such sound recordings shall be made only after the two calendar years after the end of the year in which the first sound recording has been made. Such licenses are permitted only in case of works that have been made with the license or the consent of the owner of copyright in the work. The person making records shall also provide copies of all covers or labels with which the sound recordings are to be sold. The sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public so as to their identity. In making such records no alterations or omissions of the work can be made unless such alterations or omissions have been previously made with the consent or the license of the copyright owner or unless such alterations or omissions are reasonably necessary for the adaptation of the work to the records. Registration of Copyright: (Section 44 to 50A) Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, the Act provides for registration of copyright which constitutes only prima facie evidence of the particulars entered in the Register of Copyright. Section 44 mandates that a Register of Copyrights at the Copyright Office in which the particulars relating to the work such as the names and

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addresses of the authors, publishers, owners of copyright etc., may be entered. According to Section 48 of the Act the Register of Copyrights shall be prima facie evidence of the particulars entered therein, or extracts thereof, certified by the Registrar and sealed by the seal of the Copyright office shall be admissible as evidence in all court of law without further production of the proof of original. As per the Handbook of Copyright Law published by the Government of India the following are the guidelines registration of a work. Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration of a work. Copies of the Act and Rules can be obtained from the Manager of Publications, Publication Branch, Civil Lines, Delhi or his authorised dealers on payment. The procedure for registration is as follows: a. Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ; b. Separate applications should be made for registration of each work; c. Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules; and d. The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed. Each and every column of the Statement of Particulars and Statement of Further Particulars should be replied specifically. Both published and unpublished works can be registered. Copyright in works published before 21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy copyright. Three copies of published work may be sent along with the application. If the work to be registered is

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unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office. When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee. Copyright Board: The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a Chairman and two or more, but not exceeding fourteen, other members for adjudicating certain kinds of copyright cases. The Chairman of the Board is of the level of a judge of a High Court. The Board has the power to: i. ii. iii. iv. v. hear appeals against the orders of the Registrar of Copyright; hear applications for rectification of entries in the Register of Copyrights; adjudicate upon disputes on assignment of copyright; grant compulsory licences to publish or republish works (in certain circumstances); grant compulsory licences to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work; vi. hear and decide disputes as to whether a work has been published or about the date of publication or about the term of copyright of a work in another country;

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vii. viii.

fix rates of royalties in respect of sound recordings under the cover-version provision; and fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts of a literary or dramatic or musical work.

Enforcement of Copyright: India follows a federal system of governance with Central Government for federal matters, State Governments and Union Territories for state subjects. Courts are set up by State Governments (except the apex court, the Supreme Court of India) and handle both State and Central laws. The intellectual property laws, like other laws are enforced through the state government machinery. The Copyright Act contains both civil remedies and penal provisions against infringement of copyright. In addition to the Civil and Criminal remedies there are some administrative remedies which right owners can resort to. Enforcement of Copyright is resorted to when there is an infringement of the rights granted under copyright law. Hence the starting point in understanding the enforcement provisions clearly is an understanding of what constitutes infringement.

Copyright law confers upon the owner of the work a bundle of exclusive rights in respect of the reproduction of the specific rights granted under the Act which enables the owner to reap financial benefit out of the creation by exercise of these rights. If any of these acts are carried out by a person other than the owner of copyright or without a license from the owner or a competent authority under the Act, it constitutes infringement of copyright in the work.

Copyright means the exclusive rights granted under the Act in respect of the work or a substantial part thereof. What constitutes the substantial part will depend on the facts and circumstances of the case and is subject to judicial interpretation. The exclusive rights are conferred under section 14 of the Act. These rights include, inter alia,

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reproduction of the work in a material medium, storing of the work in any medium including electronic means, publication of the work, communication of the work to the public, performance of the work in public, making of adaptations and translations and doing any of these acts in relation to a substantial part of the work. Whether a particular act constitutes infringement will depend on whether any of these rights are infringed. Before one can decide whether a particular act constitutes infringement one has to determine the meaning of expressions like reproduction of the work in a material form, storing of the work in any medium by electronic means, publication, communication to the public and so on. These words are not used in the Act in the same way it is used in the ordinary sense. These expressions and many other expressions like these which appears in the copyright act has special meanings in the context of copyright law. One should always look at the definitions (section 2) carefully and also look at the judicial interpretations given to these words to understand the correct meaning of the words in the context in which they are used. In most cases there will not be any direct evidence of copying. Copying can only be deduced by inference from the surrounding circumstances. In the case of infringement of literary works, the defendants work containing the same errors as in the plaintiffs work, similarity in language etc, may provide some evidence of copying. In R.G Anand v Delux Films (AIR 1978 SC 1613) the court has laid down the following general propositions regarding infringement of a work.: 1) There is no copyright in an idea, subject matter, themes, plots or historical or legendary facts, and violation of copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2) Where the same idea is developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to a violation of copyright. In

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other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3) One of the surest and safest test to determine whether or not there has been 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. 4) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, there is no question of violation of copyright. 5) Where, however, apart from similarities appearing in the two works there are material and broad dissimilarities which negatives the intention to copy the original and the coincidences appearing in the two works are clearly incidental, there is no infringement of copyright. 6) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence. Chapter 11 of the Act deals with infringement of copyright. Section 51 of the Act details when copyright is infringed. It defines infringement exhaustively, both direct and indirect. Direct infringement is when a person without a valid license or in violation of the terms of the license does anything, to do which is the exclusive right of the owner of copyright (section 51(a)(i). Indirect infringement is when any person permits his place to be used for communication of a work, which if communicated, would constitute an infringement of copyright (Section 51(a)(ii). Thus the owner of a hall or an auditorium would be deemed to be doing an infringing act if he lets out the place for any act which constitutes an infringement. Further, if a person makes for sale or sells or hires or offer for sale or hire or display by way of trade or by way of trade exhibit in public it constitutes an act of infringement (section 51 (b)). Importing into India infringing copies of the work, other than in small quantities for private domestic use of the importer also constitutes an act of infringement.

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Exhibiting an infringing work and distributing copies for the purpose of trade or to an extent which prejudicially affect the owner of copyright also constitute an act of infringement. In sum, infringement of copyright consists of the following acts which if done without a license granted by the owner of copyright or the Registrar of Copyright or in contravention of a license so granted or of any conditions imposed by any authority under the Act: i) The doing of any act the exclusive right to do which is conferred upon by the owner of copyright under section 14. ii) Permitting for profit a place to be used for the communication of the work to the public iii) Making for sale or hire, or selling or letting for hire any infringing copies of the work. iv) Distributing, either for the purpose of trade or to such an extent as to affect to prejudicially affect the owner of copyright v) vi) Exhibiting by way of trade infringing copies of the work Importing into India of infringing copies of the work except one copy of any work for the private and domestic use of the importer. An infringing copy is defined in section 2 (m) of the Act. As per this section an infringing copy meansi) in relation to literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; ii) in relation to a cinematograph film, a copy of the film made on any medium by any means; iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means; iv) in relation to a programme or performance in which a broadcast reproduction right or performers right subsists, a sound recording or a cinematograph film 20

made of such program or performance, if such reproduction or copy of the sound recording is made or imported in contravention to the provisions of the Act. Acts not Constituting Infringement: Fair Use or Fair Dealing: Copyright Act provides certain exceptions to infringement. The object of these exceptions is to enable the reproduction of the work for certain public purposes for encouraging private study, research and review, promotion of education etc. These exceptions work as statutory defence to the claim of infringement of copyright. Section 51 of the Act enunciates the situations in which copyright in a work shall be deemed to be infringed. Section 52 enunciates the rule that certain acts does not constitute infringement of copyright. This section thus lists out the instances where the exclusive rights of the copyright owner can be infringed without attracting the charge of infringement. For example, while section 51 enacts the general rule that reproduction of the whole or substantial part of a work will constitute infringement, section 52 provides that reproduction is not precluded and specifies the instances where it is permitted. Accordingly any fair dealing with a literary(other than a computer programme), dramatic, musical or artistic work for the purpose of private use, research, criticism or review, reporting current events, judicial proceedings and so on are exempted from the scope of infringement. There are specific exemptions for educational activities and certain cultural activities like performance during the course of a religious ceremony, marriage and so on. In the case of computer programmes there are specific exemptions for reproduction for the purpose for which the programme was purchased, making copies from legally obtained copy for private personal use, reverse engineering to understand the principles underlying the program, etc. There is a rather exhaustive list of exemptions provided in the Act and it is primarily to ensure public access to copyright products. The purpose is to permit a free flow of cultural and informational products within the society.

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Students are advised to go through section 52 carefully so that they understand the nature of exceptions provided in the Act. Remedies for Infringement: There are three types of remedies against infringement: i) ii) iii) Civil Remedies Sections 54 to 62 deals with civil remedies for infringement of copyright. Civil remedies include injunction, damages and accounts, delivery of infringing copies and damages for conversion. Who may sue: Section 55 provides that the owner of copyright (except other wise provided) will be entitled to remedies by way of injunction, damages, accounts and otherwise conferred by law for infringement of copyright. Hence the owner of copyright himself is normally the plaintiff. But for the purposes of civil remedies section 54 defines the owner of copyright to include i) ii) an exclusive licensee; in the case of an anonymous or pseudonymous work the publisher of the work till such time the identity of such anonymous or pseudonymous author is publicly established. However, section 61 provides that in a civil suit or other proceeding regarding infringement instituted by an exclusive licensee, the owner of copyright shall be made a defendant unless the court otherwise directs. In cases where the exclusive licensee makes civil criminal, and administrative.

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the owner of copyright a defendant, he shall have the right to dispute the claim of exclusive license. There is a summary presumption in section 55(2) that in case of a literary, dramatic, musical or artistic work, if a name purporting that to be the author or the publisher appears on the work, such person shall for the propose of infringement action be regarded as the author or publisher of the work, unless the contrary is proved. Thus this is a rebuttable presumption and when challenged by the defendant he has to establish his claim of ownership and the subsistence of copyright in it. Costs: The costs of all parties in any proceedings in respect of the infringement of copyright shall be at the discretion of the court. Rights of the owner on infringing copies: Once infringement is established all infringing copies of the work and all plates (see, definition) used or intended to be used for the production of such infringing copies, shall be deemed to be the property of the owner of copyright. The plaintiff may take proceedings for the recovery of possession or conversion thereof unless the defendant proves innocent infringement (see, section 58). Where can a suit be initiated: Section 62 deals with jurisdiction of the court in civil proceedings. A suit in respect of infringement of copyright (or special rights conferred under the Act like moral rights or resale rights) shall be instituted only in the district court having jurisdiction. The district court having jurisdiction, according to 65(2) shall include the district court having jurisdiction over the plaintiff. Thus the copyright owner suing for infringement can initiate proceedings in his or her own jurisdictional district court and need not go before the district court where the infringement is being committed. [Recent Case Law: Heinz Italia v. Dabur India Ltd., (2007) 6 SCC 1.]

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Criminal Proceedings: The Copyright Act provides not only civil remedies against infringement of copyright but also criminal proceedings. These two remedies are distinct and independent and can be availed simultaneously. Criminal proceedings are detailed in chapter 13 titled Offences. Section 63 defines what constitutes a criminal offence. Any person who knowingly infringes or abets the infringement of(a) the copyright in a work, or (b) any other right conferred by the Act (except the right conferred by section 53A, which is the right to share in the resale price of the original copy will be punished with imprisonment for a minimum term of six months and a maximum of three years and with a fine which may vary from a minimum of 50,000 rupees to two lakh rupees. Hence it is a criminal offence to infringe the copyright in a work. But the section also makes infringement of any other right conferred by the Act an offence. The other rights conferred under the Act include broadcast reproduction right (section 37) and performers right (section 38). Infringement f these rights are made an offence. Knowledge of the accused is an essential ingredient to constitute the offence of infringement for criminal prosecution. This general rule is applicable to criminal proceedings under copyright law also. The offence of infringement or abetment of infringement must be done knowingly, that is with the knowledge that what is done is an offence, that the act in question would infringe the copyright in a work or any other right conferred by the Act. A person will not be held guilt unless he knowingly infringes or abets the infringement. Knowledge is the essence of finding of an offence. Burden of Proof: Section 101 of the Evidence Act lays down the general rule about the burden of proof. Applying those principles the burden of proving the

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subsistence of copyright, infringement or abetment of infringement as the case may be and the existence of guilty intention is on the prosecution. Seizure of Infringing Copies: Section 64 This section confers on Police officers not below the rank of a sub inspector, if they are satisfied that an infringement or abetment of infringement of copyright in any work has been or is likely to be committed, he may seize without warrant all copies of the work and all plates used for the purpose of making infringing copies, wherever found. The copies so seized should be produced before a magistrate as soon as practicable. The use of the words wherever found indicates that not only copies fund in the premises of the infringer but also those found in the premises of the retailers may also be sized. Private infringers who might be possessing an infringing copy for their domestic use will not be affected because section 51 excludes from definition of infringement the possession of an infringing copy for private use. Any person who has any interest in any copies of a work seized by the police may, within 15 days of such seizure apply to the magistrate for restoration to him of such copies. The magistrate shall, after hearing the complainant and after making any enquiries if necessary, pass such order as he may deem fit. Possession of Plates for making infringing copies: As per section 65 of the Act any person who makes, or has in his possession, any plates for the purpose of making infringing copies of any work in which copyright subsists is punishable with imprisonment which may extend to two years, and with fine. The word plate is defined in section 2(t) of the Act as an inclusive definition. Hence it has a broad meaning. As per the definition plate includes any stereotype or other plate, stone, block, mould, matrix, transfer, negative, duplicating equipment or other device used or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which sound recording for the acoustic reproduction

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of the work are or are intended to be made. This elaborate definition is a potent tool in the hands of copyright owners to fight infringement as it covers almost all-conceivable equipment, which can be used in infringement of a work. Knowledge of the accused as to infringement appears to be necessary even in the case of mere possession of any plates used for making infringing copies applying the general principles of criminal law. Otherwise innocent persons who temporarily keep the plates with them may come under the purview of this section. Disposal of Infringing Copies: Section 66 : All infringing copies of the work in which copyright subsists and all plates used or are intended to be used for the production of such copies are deemed to be the property of the owner of the copyright in the work. In a civil proceeding the owner has to initiate proceedings for the recovery of possession or in respect of conversion thereof. However, in a criminal proceeding, section 66 provides that the court trying the offence may order that all copies of the work which appears to be infringing copies or plates for the purpose of making infringing copies in the possession of the accused be delivered to the owner for copyright without any further proceeding. Particulars to be included in recordings and video films: Section 52A of the Act requires that certain particulars be displayed on the sound recording and any container thereof. The section clearly prohibits publication of any sound recording in India unless the following particulars are displayed either on the container or on the sound recording itself: a) name and address of the person which has made the record, b) the name and addresses of the owner of copyright c) the year of its first publication. In the case of video films the following particulars are required to be displayed in the video film when exhibited and on the videocassette and on other container thereof:

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a) if the work is a cinematograph film required to be certified by Central Board of Film Certification, copy of a certificate thereof; b) Name and address of the person who has made the video film and a declaration by him that he has obtained the necessary license or consent from the owner of the copyright in such work for making such video films; and c) The name and address of the owner of copyright in such work. Contravention of Section 52 A: What happens if someone does not comply with the provisions of section 52A detailed above. Section 68A makes it a criminal offence to contravene the provisions of section 52A of the Act. Therefore if anyone publishes a sound recording or video film without furnishing the particulars required under section 52A he shall be punishable with imprisonment which may extend to three years and shall also be liable to fine. There are also penalties for making false in the Register of Copyright (section 67) and penalty for making false statements for the purpose of deceiving or influencing any authority in relation to the Act(Section 68). Administrative Remedy Against Importation of infringing copies: The Act provides for an effective administrative remedy to prevent importation into India of copies of a copyright work made outside India, which if made in India, would infringe the copyright in the work. Section 53 of the Act empowers the Registrar of Copyright to make an order prohibiting the importation into India of such copies on the application of the owner of the copyright in any work, or his duly authorized agent, after making such enquiry as he deems fit. The Registrars order prohibiting such import brings into play the provisions of the Customs Act as goods the importation of which is banned in the Act. The only difference is that the copies confiscated under this provision do not vest in the Government of India but are to be delivered to the owner of copyright in the work.

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Collective Administration of Copyright: Chapter 8 of the Act deals with collective administration societies. Section 33 of the Act mandates that the business of issuing or granting licenses in respect of any work on behalf of the author can only be done through a copyright society. However the owner of copyrights still retains his authority to issue licenses in respect of his own works. The Act prescribes elaborate procedures for forming a Copyright Society. The issuance of licenses by such societies on behalf of its member right owners is called collective administration of copyright. Collective administration of copyright is a concept where management and protection of copyright in works are undertook by a society of owners of such works. These societies undertake the task of administering the rights of the copyright owner. Obviously no owner of copyright in any work can keep track of all the uses others make of his work. When he becomes a member of a national copyright society, that society, because of its organisational facilities and strength, is able to keep a better vigil over the uses made of that work throughout the country and collect due royalties from the users of those works. So it will be in the interests of copyright owners to join a collective administration organisation to ensure better protection to the copyright in their works and for reaping optimum economic benefits from their creations. Because of the countrys membership in international conventions, the copyright societies are able to have reciprocal agreements with similar societies in other countries for collecting royalties for the uses of Indian works in those countries. Users of different types of works also find it easy to obtain licences for legal exploitation of the works in question, through such collective administrative societies as they do not have to look around for authors all the time when they need to use a work. A copyright society is a registered collective administration society. Such a society is formed by copyright owners following the procedures prescribed in the Act. The minimum membership required for registration of a society is seven. Ordinarily, only one society is registered to do business in respect of the same class of work. A copyright

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society can issue or grant licenses in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act. As per section 34 of the Act , a copyright society may accept from the owner exclusive authorization to administer any right in any work. A copyright society may: i. ii. iii. Issue licenses in respect of the rights administered by the society. Collect fees in pursuance of such licenses. Distribute such fees among owners of copyright after making deductions for the administrative expenses. Examples of collective administration society functioning in India are: i) ii) Indian Performing Rights Society (IPRS) which administers public performance rights of the authors in music. Phonographic Performance Limited (PPL) which administers the rights in the sound records. To understand how it works, let us imagine that you are running a restaurant and desire to play the cassettes of popular songs. The Act requires you to take licenses form the authors. This means you have to take permission of the lyricist for the literary work, composer for the music. These rights are administered by IPRS. In addition you may have to take permission of the sound recording producer. This is administered by PPL. By taking these licenses from these societies for their published fees (which are not high) you comply with the provisions of the Act. International Copyright: In general all Intellectual Property laws are territorial laws. Section 13 (2) of the Act discusses the works in which copyright subsists. In case of published works the Act applies only to works first published in India irrespective of the nationality of the author.

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In case of an unpublished work copyright subsists only if the author at the time of making the work a citizen of India. And in the case of a work of architecture the copyright subsist only if the work is located in India. However, the section 40 of the Act gives the Government of India the power to extend the benefits to all or any of the provisions of the Act to works first published in a foreign country. This is done by notification in the official gazette of India of an order called International Copyright Order. The countries mentioned in the International Copyright Order are countries who are members of the Conventions in the field of copyright to which India is a party. One common feature of international conventions in the field of IP is the requirement that all members to provide protection to citizens of other member states as if they were national of the country. Thus all citizens of a Bern Convention country will get their copyright protected as if they were Indian citizens. Similarly, Indian authors get protection for their works in foreign countries who are members of Bern Convention as if they are nationals of that country. This principle is called national treatment. Berne Convention for the Protection of Literary and Artistic Works is the primary convention in the copyright field. However, there is an exception to the national treatment rule. In respect of the term of copyright it shall not exceed that enjoyed in the country of origin.

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