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Copyright: history in India and the theories that justify it

Law of Copyrights · Unit I · Topic 1 of 15 · 7 min read

From the Statute of Anne to the Copyright Act, 1957 and its amendments up to 2012, and the labour, personality, utilitarian and critical theories an LL.M. answer is expected to set against that history.

On this page
  1. 1. Origins in England: privilege to property
  2. 2. The Indian story
  3. 3. Justifications: why should copyright exist?
  4. 4. Nature of copyright
  5. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

How these notes are organised. These notes follow KSLU’s two-year LL.M. syllabus (2022–23) for this paper and the past papers. The syllabus units are: I, history, nature and subject matter; II, comparative principles, salient features, authorship, rights and term; III, transfer, neighbouring rights, copyright societies and the Copyright Board; IV, infringement and remedies; V, the international instruments. The notes are numbered by those units. The paper asks for history as a short note and theory runs underneath every essay: an LL.M. answer that states a rule should also say which justification of copyright the rule serves.

1. Origins in England: privilege to property

Copyright began as a printing privilege, not an author’s right. After the printing press reached England, the Crown granted the Stationers’ Company a monopoly over printing in return for its help in censorship, and the right to print a title belonged to the stationer who entered it in the Company’s register. When the Licensing Act lapsed in 1695, the stationers lost their legal protection and lobbied for a statute.

The result was the Statute of Anne, 1710, described in its title as an Act for the encouragement of learning. It gave the author (and his assigns) the sole right of printing a book for fourteen years, renewable once for another fourteen if the author was alive. Three ideas entered the law here and have stayed: the author as the source of the right, a limited term, and a public purpose.

Whether a perpetual common law copyright survived alongside the statute was fought out in Millar v. Taylor (King’s Bench, 1769), which said yes, and Donaldson v. Becket (House of Lords, 1774), which is read as saying no: once a work is published, the author’s right is the statutory right and ends with the statutory term. Copyright has been a creature of statute since, and section 16 of the Indian Act says so expressly.

2. The Indian story

  1. 1847. The East India Company enacted the first Indian copyright statute, based on the English Literary Copyright Act, 1842. Registration with the Home Office was required before suing.
  2. 1911–1914. The (UK) Copyright Act, 1911 was extended to British India. The Indian Copyright Act, 1914 applied the 1911 Act with modifications, and added criminal penalties. India thus came into the Berne system through the British Empire.
  3. 1957. After independence Parliament passed the Copyright Act, 1957, which came into force on 21 January 1958. It was influenced by the UK Copyright Act, 1956 but made Indian choices: a Copyright Board, a Registrar, compulsory licences, and an extended list of exceptions.
  4. 1983. Amendments to use the special translation and reproduction licences in the Appendix to the Paris Act (1971) of Berne, which favour developing countries.
  5. 1984. Directed at video and audio piracy: films on video were brought in, and penalties increased.
  6. 1992. The term was extended from fifty to sixty years after the author’s death.
  7. 1994. Computer programmes were defined and protected as literary works, performers’ rights were introduced, rental rights added, and copyright societies placed on a statutory footing.
  8. 1999. Brought the Act into line with TRIPS, including the International Copyright Order mechanism for WTO members.
  9. 2012. The most extensive revision: technological protection measures and rights management information (sections 65A and 65B), protection of authors of works in films and sound recordings through non-assignable royalty rights, moral rights for performers, exceptions for persons with disabilities, statutory licences for cover versions (section 31C) and broadcasting (section 31D), and safe harbour for transient storage.
  10. 2017 and 2021. The Copyright Board was merged into the Intellectual Property Appellate Board in 2017. The IPAB was abolished by the Tribunals Reforms Act, 2021; its copyright work now lies with the Commercial Courts and the High Courts.

3. Justifications: why should copyright exist?

The examiner is not asking for the history of statutes alone. An LL.M. answer is expected to show that the shape of the law follows from a theory, and that the theories pull in different directions.

(a) Labour theory (Locke)

Locke’s argument in the Second Treatise of Government (1689) is that a person who mixes his labour with what is held in common acquires property in the result, provided enough and as good is left for others. Applied to copyright, the author who works on the common stock of language and ideas earns property in the work. The theory explains the instinct that copying is taking the fruit of another’s labour, and it supported the older “sweat of the brow” test of originality. Its weakness is that it gives no measure of how much protection labour deserves, and the proviso (enough and as good left over) is the source of the idea/expression dichotomy and the public domain.

(b) Personality theory (Kant and Hegel)

Kant treated a book as the author’s speech to the public, and Hegel saw property as the external embodiment of the will. On this view the work is an extension of the author’s personality. This is the root of the continental droit d’auteur tradition and of moral rights (attribution and integrity), which survive assignment. Section 57 of the Indian Act and Article 6bis of Berne rest on this theory.

(c) Utilitarian or incentive theory

Bentham and the economists justify copyright as a tool: without exclusive rights, copying is cheap, creators cannot recover the cost of creation, and too little is produced. The US Constitution’s clause empowering Congress to promote the progress of science and useful arts by securing exclusive rights for limited times states this theory in constitutional form. It explains limited terms, fair use and compulsory licensing: protection is given only so far as it produces more works than it costs in restricted access. Its difficulty is empirical. Nobody can say whether a term of life plus sixty years produces more creation than life plus fifty.

(d) Critical and development perspectives

Critics argue that the romantic image of the solitary author hides the collaborative and derivative nature of creation, that terms keep growing at the request of rights-holders, and that strong copyright makes knowledge expensive for developing countries. Lawrence Lessig’s Free Culture (2004) and the access-to-knowledge movement belong here, as does the Indian argument in the DU photocopy case that education cannot be priced at Western levels. The Marrakesh Treaty (2013) and the Berne Appendix are institutional responses.

Common law and civil law, in one paragraph. The Anglo-American tradition treats copyright as an economic right granted for public benefit, protects sound recordings and films as “works”, and lets employers and commissioners own. The continental tradition treats the author’s right as a personal right, keeps moral rights strong, and puts recordings and broadcasts under separate “neighbouring rights”. India follows the common law structure but has borrowed civil law features: strong moral rights in section 57 and, since 2012, non-waivable royalty rights for authors.

4. Nature of copyright

How this is examined

February 2025 set “History of copyright law in India” as a short note: use section 2 in order and close with the 2012, 2017 and 2021 changes. The same material starts any essay on the nature or justification of copyright. When asked to “critically examine” any rule, add two sentences on which theory supports it and which theory objects.

Now try the real questions: Law of Copyrights past question papers.