Copyright: Works in Which It Subsists and Assignment

1. Works in which copyright subsists (s.13)

Copyright subsists throughout India in: (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings. The first group are “authorial” works, which must be original; films and sound recordings are “entrepreneurial” works, protected for the investment of the producer.

• Literary work includes computer programmes, tables and compilations including computer databases (s.2(o)).
• Dramatic work includes recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, but not a film (s.2(h)).
• Musical work is the music itself, including graphical notation, but not words or action to be sung or performed with it (s.2(p)).
• Artistic work means a painting, sculpture, drawing (including a diagram, map, chart or plan), engraving or photograph, whether or not of artistic quality; a work of architecture; and any other work of artistic craftsmanship (s.2(c)).
• Cinematograph film includes any work of visual recording with sound, made by any process including video films (s.2(f)).
• Sound recording is a recording of sounds from which they may be produced, regardless of medium (s.2(xx)).

Conditions. Section 13(2): for a published work, first publication must be in India or, if abroad, the author must be an Indian citizen; for an unpublished work, the author must be a citizen or domiciled in India; for architecture, the work must be located in India. The International Copyright Order, 1999 extends protection to works from Berne and WTO members. Section 13(3): no copyright subsists in a film if a substantial part infringes another work, or in a sound recording made in violation of the copyright in the underlying work. No registration is required (registration under s.45 is optional and only evidence), in line with Berne Article 5(2).

2. Originality

“Original” does not mean novel. In University of London Press v. University Tutorial Press (1916) Peterson J held that it means the work originates from the author and is not copied. English law accepted skill, labour and judgment as enough. The US Supreme Court in Feist Publications v. Rural Telephone Service (1991) required a modicum of creativity and denied copyright to an alphabetical telephone directory. The Supreme Court of India in Eastern Book Co. v. D.B. Modak (2007) took a middle path: mere labour is not enough, but a minimal degree of creativity is. Copy-edited judgments as such were not protected, but the publisher's headnotes, paragraphing and editorial additions involving skill and judgment were. The CJEU's test since Infopaq (2009) is the author's own intellectual creation.

3. Idea and expression

Copyright protects expression, not ideas, facts, plots or themes. In R.G. Anand v. Delux Films, 1978 INSC 138, the playwright of “Hum Hindustani” failed against the makers of the film “New Delhi”: both treated provincialism in marriage, but the film's expression was different. The test is whether an ordinary viewer, after seeing both, gets an unmistakable impression that one is a copy of the other. TRIPS Article 9(2) states the rule: protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts.

4. First ownership (s.17)

The author is the first owner, subject to exceptions: work by a journalist under a contract of service for publication in a newspaper (proprietor owns publication rights there); photographs, drawings, paintings, engravings and films made for valuable consideration at another's instance (the person at whose instance they were made); works made in the course of employment under a contract of service (the employer); government works (the government). In Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association, 1977 INSC 87, the Supreme Court held that a film producer who commissions music for valuable consideration becomes the first owner of the music in the film, defeating the composer's claim. The 2012 amendment added a proviso to s.17 that this rule does not affect the rights of the author in works incorporated in a film, which limits the effect of IPRS.

5. Assignment (s.18)

The owner of the copyright in an existing work, or the prospective owner of the copyright in a future work, may assign it to any person either wholly or partially, generally or subject to limitations, and for the whole term or any part of it. An assignment of a future work takes effect only when the work comes into existence. The assignee becomes the owner of the rights assigned and is treated as owner for those rights.

Provisos inserted in 2012:

• No assignment applies to any medium or mode of exploitation that did not exist or was not in commercial use when the assignment was made, unless the assignment expressly refers to it.
• The author of a literary or musical work included in a film or sound recording shall not assign or waive the right to receive royalties equal to the assignee's share for use of the work in any form other than communication of the film in a cinema hall, except to legal heirs or a copyright society for collection.

6. Mode of assignment (s.19)

1. An assignment is valid only if it is in writing and signed by the assignor or his duly authorised agent (s.19(1)).
2. It shall identify the work, and specify the rights assigned, the duration and the territorial extent (s.19(2)), and the royalty and other consideration payable (s.19(3)).
3. If the assignee does not exercise the rights within one year, the assignment is deemed to have lapsed unless otherwise specified (s.19(4)).
4. If the period is not stated, it is deemed to be five years (s.19(5)); if the territory is not stated, it is deemed to be India (s.19(6)).
5. Assignments contrary to the terms and conditions of rights already assigned to a copyright society are void (s.19(8)); and assignment for film or sound recording does not affect the author's royalty right (s.19(9)–(10)).

Disputes (s.19A). If the assignee fails to exercise the rights and the failure is not attributable to the assignor, or if there is a dispute about the assignment, the Commercial Court or High Court (the functions of the former Copyright Board, abolished in 2017 and then passed from the IPAB in 2021) may revoke the assignment or order payment of royalty.

By operation of law. Section 20 provides for transmission by testamentary disposition: a bequest of the manuscript of an unpublished work carries the copyright unless the will says otherwise. Copyright also passes on insolvency and succession.

7. Licences

A licence grants an interest without ownership. Voluntary licences must be in writing (s.30, applying s.19 with modifications). The Act also has compulsory licences for works withheld from the public (s.31), for unpublished or published works of Indian authors (s.31A), for persons with disabilities (s.31B), statutory licences for cover versions (s.31C) and for broadcasting of literary and musical works and sound recordings (s.31D), and licences to produce and publish translations (s.32) and reproductions (s.32A).

How this is examined

Q4 of 2024 asked for both halves. In the first half list the six classes with definitions, then originality (Eastern Book Co.) and idea-expression (R.G. Anand). In the second half write s.18, the five rules of s.19, s.19A and transmission by will. Keep licences to a paragraph.