Copyright and Allied Rights: Salient Features, the Berne Convention and TRIPS
Study of Industrial and Intellectual Property Rights · Unit IV · Topic 12 of 15 · 7 min read
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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.
1. The exclusive rights (s.14)
Copyright is defined by section 14 as the exclusive right to do, or authorise the doing of, specified acts, which differ by class of work:
- Literary, dramatic and musical works: reproduce in any material form (including storing by electronic means), issue copies to the public, perform in public or communicate to the public, make a film or sound recording, translate, and adapt.
- Computer programs: the above, plus selling or giving on commercial rental.
- Artistic works: reproduce (including depiction in three dimensions of a two-dimensional work and vice versa), communicate to the public, issue copies, include in a film, adapt.
- Films and sound recordings: make a copy, sell or give on commercial rental, communicate to the public.
The rights are a bundle: each can be assigned or licensed separately (s.18). In Indian Performing Right Society v. Eastern India Motion Pictures Association, 1977 INSC 87, the Supreme Court held that the producer of a film, as first owner, could exhibit it without paying the composer of its music, unless the composer had reserved the right. The 2012 amendment reversed the economic effect of that ruling by making the authors' right to equal shares of royalties from exploitation of their works, other than through the film in a cinema hall, unwaivable (provisos to s.18 and s.19).
2. Term
| Work | Term | Section |
|---|---|---|
| Literary, dramatic, musical, artistic (including photographs since 2012) | Life of author plus 60 years | 22 |
| Anonymous and pseudonymous works | 60 years from publication | 23 |
| Films and sound recordings | 60 years from publication | 26, 27 |
| Government works, works of international organisations | 60 years from publication | 28, 29 |
| Broadcast reproduction right | 25 years from the broadcast | 37 |
| Performer's right | 50 years from the performance | 38 |
All periods run from the beginning of the calendar year following the relevant event. India's terms exceed the Berne minimum of life plus 50.
3. Allied or neighbouring rights
Broadcasters and performers do not create works, but their investment and skill are protected by rights modelled on copyright (Chapter VIII).
- Broadcast reproduction right (s.37): to prevent re-broadcasting, causing the broadcast to be heard or seen by the public on payment, making sound recordings or visual recordings, and reproducing them without licence.
- Performer's right (s.38, rights listed in s.38A, added in 2012): to make a sound or visual recording, reproduce it, issue copies, communicate it to the public, sell or rent it, and broadcast the live performance. Once a performer consents to the incorporation of the performance in a film, the right in that use passes to the producer, subject to a royalty claim for commercial use.
- Performer's moral rights (s.38B, 2012): to be identified and to object to distortion or mutilation prejudicial to reputation.
Sound recordings and films are protected in India as works (s.13), not merely as neighbouring rights, which gives producers a fuller right than the Rome Convention requires.
4. Statutory and compulsory licences
- s.31: compulsory licence where a work published or performed in public is withheld from the public, or broadcasting is refused, on unreasonable terms. In Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., 2008 INSC 708, the Supreme Court held that a licence could be granted to an FM radio broadcaster even though the owner had licensed others, because the test is unreasonable refusal, and the owner's right must be balanced against the public interest in access.
- s.31A: licences for unpublished or orphan works; s.31B: for the benefit of persons with disabilities.
- s.31C: statutory licence for cover versions of sound recordings, five years after the original, on payment of royalties.
- s.31D: statutory licence for broadcasting literary and musical works and sound recordings, at rates fixed by the authority. The Bombay High Court in Tips Industries v. Wynk Music (2019) held that it does not extend to internet streaming services.
- s.32: licences to produce and publish translations, following the Berne Appendix.
5. Infringement and exceptions
Copyright is infringed when a person, without licence, does anything the owner has the exclusive right to do, or permits a place to be used for public performance for profit, or deals commercially in or imports infringing copies (s.51). Substantial copying must be shown; R.G. Anand v. Delux Films, 1978 INSC 138, asks whether an ordinary viewer gets an unmistakable impression that the second work is a copy of the first. Section 52 lists acts that do not infringe, including fair dealing for private or personal use including research, criticism or review, and reporting current events (s.52(1)(a)); transient and incidental storage (s.52(1)(b), (c)); reproduction by teachers and pupils in the course of instruction (s.52(1)(i)); and adaptations for persons with disabilities (s.52(1)(zb)). The Delhi High Court read the educational exception broadly in University of Oxford v. Rameshwari Photocopy Services (Division Bench, 2016).
6. Remedies and administration
- Civil: injunction, damages, accounts (s.55), and delivery up of infringing copies.
- Criminal: imprisonment of six months to three years and fine of fifty thousand to two lakh rupees for knowing infringement (s.63), enhanced on second conviction (s.63A); seizure by police (s.64).
- Technological protection measures (s.65A) and rights management information (s.65B), added in 2012 to match the WIPO Internet Treaties.
- Registration is optional (s.45) and only prima facie evidence (s.48). The Copyright Board was merged into the IPAB in 2017, and after the Tribunals Reforms Act, 2021 its functions passed to the courts.
- International copyright (s.40): the International Copyright Order, 1999 extends protection to works of Berne, Universal Copyright Convention and WTO countries.
7. The Berne Convention (1886)
The Berne Convention for the Protection of Literary and Artistic Works, last revised at Paris in 1971, rests on three principles: national treatment (Art 5(1)); automatic protection, the enjoyment and exercise of rights not subject to any formality (Art 5(2)); and independence of protection from protection in the country of origin (Art 5(2)). It sets minimums: a general term of life plus 50 years (Art 7(1)); moral rights of attribution and integrity (Art 6bis); exclusive rights of translation (Art 8), reproduction (Art 9(1)), public performance, broadcasting and adaptation. Article 9(2) contains the original three-step test: exceptions to reproduction are allowed in certain special cases, which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. The Appendix allows developing countries compulsory licences for translation and reproduction. India has been a member since 1928.
In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, 1984 INSC 40, the Supreme Court read “import” in the Copyright Act to cover pirated records passing through India in transit to Nepal, and explained that international law is applied by Indian courts so far as it does not conflict with statute.
8. Related treaties and TRIPS
- Rome Convention (1961): performers, phonogram producers, broadcasters. India is not a party, but its Chapter VIII rights follow the same pattern.
- TRIPS (Arts 9–14): Berne-plus without moral rights, programs as literary works, rental rights, the three-step test generalised to all exceptions (Art 13), and related rights (Art 14), with Part III enforcement. See the TRIPS note.
- WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (1996): the making-available right, protection of TPMs and RMI. India's 2012 amendment implemented them and India acceded to both in 2018.
- Marrakesh Treaty (2013) for visually impaired persons; India was the first country to ratify it.
How this is examined
A 16-mark question on the salient features of the Copyright Act, or on Berne and TRIPS. For the Act, take sections 1–6 here with the subsistence and ownership points from the works note; for the treaties, take sections 7 and 8 with the three principles and the three-step test. A short note on neighbouring rights should use section 3 with the terms from the table.
Now try the real questions: Study of Industrial and Intellectual Property Rights past question papers.