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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

The salient features of the Copyright Act, 1957 beyond subsistence and ownership: the exclusive rights, term, related rights of broadcasters and performers, statutory and compulsory licences, infringement and fair dealing, remedies, and the 2012 amendment, with the Berne Convention, the Rome Convention, TRIPS and the WIPO Internet Treaties.

On this page
  1. 1. The exclusive rights (s.14)
  2. 2. Term
  3. 3. Allied or neighbouring rights
  4. 4. Statutory and compulsory licences
  5. 5. Infringement and exceptions
  6. 6. Remedies and administration
  7. 7. The Berne Convention (1886)
  8. 8. Related treaties and TRIPS
  9. 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.

The examinable core. “Salient features of the national legal regime on copyright and allied rights” with the highlights of Berne and TRIPS. The note on works and assignment covers what copyright subsists in and who owns it; this note covers what the right is, how long it lasts, the allied (neighbouring) rights, the licences, infringement and remedies, then the treaties.

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:

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

WorkTermSection
Literary, dramatic, musical, artistic (including photographs since 2012)Life of author plus 60 years22
Anonymous and pseudonymous works60 years from publication23
Films and sound recordings60 years from publication26, 27
Government works, works of international organisations60 years from publication28, 29
Broadcast reproduction right25 years from the broadcast37
Performer's right50 years from the performance38

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).

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

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

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

Debate. Is copyright an author's right or a publisher's investment right? Berne and the moral-rights provisions take the author's side; the film and sound recording rules (first ownership in the producer, s.17) take the investor's side. The 2012 amendment's unwaivable royalty shares and performers' rights were an attempt to rebalance in favour of creators, after IPRS had left composers and lyricists without a share of film revenues.

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.