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Copyright and Related Rights: An Overview

IPR II · Unit III · Topic 4 of 8 · 6 min read

The Copyright Act 1957 as amended in 2012 at survey level: protected works and originality after Eastern Book Company, the idea-expression dichotomy after R.G. Anand, ownership and the film-music problem, economic and moral rights, term, related rights, fair dealing and the DU photocopy case, compulsory and statutory licences, and the digital provisions, with comparisons to the US and UK.

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On this page
  1. 1. Nature of copyright
  2. 2. Protected works and originality
  3. 3. Idea and expression
  4. 4. Ownership
  5. 5. Rights and term
  6. 6. Related rights
  7. 7. Exceptions and licences
  8. 8. Copyright societies and the digital provisions
  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.

Scope. A separate paper treats copyright in depth. Here the aim is a survey answer of the kind asked in IPR: “Explain the nature and scope of copyright” or “Discuss the salient features of the Copyright Act.” Each section gives the rule, one leading case and the policy question.

1. Nature of copyright

Copyright is a bundle of exclusive rights to do, or authorise the doing of, certain acts in respect of a work (section 14 of the Copyright Act, 1957). It is negative: it lets the owner stop copying, not independent creation. It arises automatically on creation (Berne Article 5(2)); registration under section 45 is optional and gives only prima facie evidence. There is no copyright except under the Act (section 16). Copyright is territorial, but the International Copyright Order, 1999 extends Indian protection to works of Berne and WTO countries.

2. Protected works and originality

Section 13 protects original literary, dramatic, musical and artistic works, cinematograph films, and sound recordings. Computer programs are literary works (section 2(o)). The standard of originality has three models:

India chose a middle path in Eastern Book Company v. D.B. Modak, 2007 INSC 1266, (2008) 1 SCC 1. Copy-edited judgments in a law report were not original merely because labour was spent, but the publisher’s own paragraphing, headnotes and footnotes involved enough skill and judgment, with a flavour of minimum creativity, to be protected.

3. Idea and expression

Copyright protects expression, not ideas, procedures or methods (TRIPS Article 9(2)). In R.G. Anand v. Delux Films, 1978 INSC 138, (1978) 4 SCC 118, the playwright of “Hum Hindustani” sued the makers of the film “New Delhi”; both dealt with provincialism and inter-state marriage. The Supreme Court held there was no infringement: there is no copyright in an idea, theme or plot, and the test is whether an ordinary viewer, after seeing both, gets the unmistakable impression that one is a copy of the other. Related doctrines are merger (where an idea can be expressed in only one or a few ways, the expression is not protected) and scènes à faire (stock elements of a genre).

4. Ownership

The author is the first owner (section 17), subject to exceptions for works made in the course of employment, works for newspapers, works made for valuable consideration at the instance of another, and government works. For films the producer is the author (section 2(d)(v)). In Indian Performing Right Society v. Eastern India Motion Pictures Association, 1977 INSC 87, (1977) 2 SCC 820, the Court held that a film producer who commissions music for a film owns the copyright in it, leaving composers and lyricists without royalties. The 2012 amendment answered this through provisos to sections 18 and 19: authors of literary and musical works incorporated in a film or sound recording cannot assign away their right to an equal share of royalties for uses other than exhibition of the film in a cinema hall.

5. Rights and term

6. Related rights

Broadcast reproduction rights last twenty-five years (section 37) and performers’ rights fifty years (section 38). The 2012 amendment gave performers moral rights (section 38B) and a right to royalties for commercial use of their performances.

7. Exceptions and licences

Section 52 lists acts that do not infringe, including fair dealing for private use including research, criticism or review, and reporting current events; reproduction for judicial proceedings; and reproduction by a teacher or pupil in the course of instruction (section 52(1)(i)). India uses an enumerated fair dealing model like the UK, not the open-ended US fair use doctrine of section 107 of the US Copyright Act, which weighs purpose, nature of the work, amount used, and market effect (Campbell v. Acuff-Rose Music, US Supreme Court, 1994).

The DU photocopy case. In The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services (Delhi High Court, Division Bench, 2016), publishers sued a photocopy shop licensed by Delhi University for preparing course packs. The Division Bench held that section 52(1)(i) covers reproduction in the course of instruction, which includes the making of course packs, and the test is whether the copying is justified by the purpose of instruction, not whether it is a small portion. The publishers withdrew the suit in 2017. The case is the standard example of copyright yielding to access to education in a developing country.

Compulsory and statutory licences. The Commercial Court or High Court (formerly the Copyright Board, later the IPAB) may grant a compulsory licence where a work published or performed in public is withheld from the public (section 31), as considered in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., 2008 INSC 708, (2008) 13 SCC 30, where the Court held that radio broadcasters could seek a licence where the owner refused on unreasonable terms. Section 31A covers unpublished and orphan works, 31B works for persons with disabilities, 31C cover versions, and 31D statutory licences for broadcasting of literary and musical works and sound recordings.

8. Copyright societies and the digital provisions

Copyright societies registered under section 33 administer rights collectively; after 2012 they must be run by authors and owners. Sections 65A and 65B, also of 2012, punish circumvention of technological protection measures and removal of rights management information, implementing the WCT and WPPT. Section 52(1)(b) and (c) give a limited safe harbour for transient and incidental storage by intermediaries.

How this is examined

For a survey answer: nature of copyright; works and originality (Eastern Book Company); idea and expression (R.G. Anand); ownership (IPRS and the 2012 provisos); rights, moral rights and term; related rights; fair dealing and the DU case; compulsory licences (Entertainment Network); digital provisions. Compare with Berne, TRIPS and US fair use.

Now try the real questions: IPR II past question papers.