COPYRIGHT LAW

CONTENTS Chapter I Chapter II An Overview of the Copyright Act !"#$ Wor%& in which the Copyright &'(&i&t (1) Applicability of the Copyright Act (2) Works in which copyright subsist (3) Original works a. Question papers b. Abri ge!ent c. Co!pilation . Copy e ite "u g!ents e. #ranslations $) %iterary work &) 'ra!atic work () )usical work *) Artistic work +) Cine!atograph fil! ,) -oun .ecor ings 1/) 0asic 1ropositions un er Copyright %aw 11) 2 ea e3pression 'ichoto!y 12) )erger of 2 ea an e3pression 13) Copyright 4. Confi ential 2nfor!ation Chapter III )eaning of Copyright

1. 53clusi4e 5cono!ic .ights

a. %iterary6 'ra!atic or )usical works b. Co!puter 1rogra!!es c. Artistic work . Cine!atograph fil! e. -oun recor ings 2. )oral .ights 3. .ights of 1erfor!ers $. .ights of 0roa casting Organi7ations Chapter I* Infringe+ent an, Act& not a+o'nting to infringe+ent (1) i) ii) iii) i4) 4) 4i) 2nfringe!ent 8iolation of 53clusi4e .ights of Owners 2nfringe!ent by use of a place 2nfringe!ent by 'istribution for tra e 2nfringe!ent by e3hibition 2nfringe!ent by i!port 2nfringe!ent in co!puter progra!!e

(2) Acts not constituting 2nfringe!ent Chapter * i) ii) iii) i4) 4) 4i) A'thor an, Owner of Copyright

Author Owner of copyright Assign!ent of copyright )o e of Assign!ent 'isputes with respect to Assign!ent #rans!ission of Copyright in )anuscript by #esta!entary 'isposition

Chapter *I

-'ration of Copyright

1. #er! of copyright in 1ublishe literary6 ra!atic6 !usical an artistic works 2. #er! of copyright in Anony!ous an 1seu ony!ous work 3. #er! of Copyright in 1osthu!ous work $. #er! of Copyright in 1hotographs6 Cine!atograph fil!s an -oun .ecor ings &. #er! of Copyright in 9o4ern!ent work6 works of 1ublic :n ertakings an works of 2nternational Organi7ations. Chapter *II Licence& (1) 8oluntary %icence (2) Co!pulsory %icence i) Co!pulsory %icence in works withhel fro! public ii) Co!pulsory %icence in unpublishe 2n ian works. (3) %icence to pro uce an 1ublish translations of %iterary or 'ra!atic works ($) %icence to .epro uce an 1ublish works for Certain purposes. Chapter *III (1) 2ntro uction (2) A !inistrati4e .e!e ies (3) A !inistrati4e )achinery in 2n ia ($) Appeals Against or ers of .egistrar of copyright an copyright 0oar . (&) Ci4il .e!e ies i) 2n;unctions
3

Re+e,ie& for Infringe+ent of Copyright

a. 2nterlocutory 2n;unctions b. Anton 1iller or er c. )are4a 2n;unction ii) 'a!ages iii) Accounts of 1rofits (() (*) (+) (,) Cri!inal .e!e ies Who can !aintain Cri!inal 1rocee ings 2nfringe!ent of Copyright in Co!puter 1rogra!!es 1ower of the 1olice to sei7e infringing copies

(1/) 1enalty for !aking false entries in .egister (11) 1enalty for !aking any <alse state!ents for the purpose of 'ecei4ing or 2nfluencing any Authority or officer (12) 1enalty for the contra4ention of section &2A with respect to .ecor s an 4i eo fil!s (13) Offences by Co!panies (1$) #he .ole of Central 9o4ern!ent in 5nforce!ent Chapter I. Co//ecting Societie& (1) Copyright societies in 2n ia (2) .egistration of the Copyright -ocieties (3) A !inistration of .ights of Owner by the Copyright -ociety

($) Agree!ent between a Copyright -ociety an -i!ilar <oreign -ociety (&) Control o4er the Copyright -ociety Chapter . Internationa/ Convention&

(1) 0erne Con4ention for the 1rotection of %iterary an Artistic Works (1++() (2) 9ene4a Con4ention for the 1rotection of 1ro ucers of 1honogra!s against :nauthori7e 'uplication of their 1honogra!s (3) .o!e Con4ention for the 1rotection of 1erfor!ers6 1ro ucers of 1honogra!s an 0roa casting Ogani7ations (1,(1) ($) (&) (() W21O Copyright #reaty (WC#) (1,,() W21O 1erfor!ances an 1honogra!s #reaty (W11#) (1,,() Agree!ent on #ra e .elate Aspects of 2ntellectual 1roperty .ights (#.21Agree!ent) 1,,$

AN O*ER*IEW O0 THE COPYRIGHT ACT !"#1

#he copyright Act6 1,&* (hereinafter referre to as the Act) is an Act to a!en an consoli ate the law relating to copyright. Copyright is an intangible6 incorporeal right gi4en by the statute to an author of original literary6 artistic6 ra!atic an

!usical works. #he Act also protects the rights of pro ucers of fil!s an soun recor ings which are eri4ati4e works. #he rationale behin the law is to grant

protection to the rights of creators so that they can repro uce their work e3clusi4ely for a li!ite perio of ti!e. After the e3piry of the ter!6 the work falls into public o!ain. #he Act is i4i e into fifteen chapters an has to be rea alongwith the Copyright .ules6 1,&+ an the 2nternational Copyright Or er6 1,,,. Copyright is a statutory right. #he Act itself specifies that no person shall be entitle to copyright or any si!ilar right in any work6 whether publishe or

unpublishe 6 otherwise than un er an in accor ance with the pro4isions of this Act or any other law for the ti!e being in force. Chapter 2 gi4es basic con itions for applicability of the Act an ter!s . Chapter 22 escribes the a !inistrati4e !achinery which consists of the efines certain

copyright office an the copyright 0oar . Chapter 222 consists of substanti4e pro4isions as it enu!erates the works in which the copyright subsists an the rights of the authors in their works. #his chapter also contains a special pro4ision regar ing copyright in esigns registere or capable of being registere un er the 'esigns Act6 1,11. 2t 4ery clearly specifies that

copyright shall not subsist un er this Act in any esign which is registere un er the

'esigns Act6 1,11. 2t further elaborates that copyright in any

esigns6 which is

capable of being registere un er the 'esign Act6 1,11 but which has not been so registere 6 shall cease as soon as any article to which the esign has been applie has been pro uce !ore than fifty ti!es by an in ustrial process by the owner of the copyright or6 with his licence6 by any other person. #he Act !akes a istinction between the author of the work an owner of the copyright. Author is the first owner of copyright e3pect in the circu!stances !entione in section 1* un er Chapter 28. #his chapter e3plains in etail the

!etho s by which the owner can assign or relin=uish his rights. Copyright is li!ite in uration. Chapter 8 prescribes the ter! of copyright in 4arious works. Chapter 82 licences. 2t is 4ery ifficult for an in i4i ual author to a !inister an efficiently protect his rights6 nationally an internationally. #o ai an facilitate the protection of rights of authors an perfor!ers6 the Act has pro4i e for creation of copyright societies. #hese societies are controlle by the owners of rights. Chapter 822 pro4i es for the creation an registration of such societies6 their functions an powers an their rights an liabilities vis--vis the copyright owners. Chapter 8222 has special pro4isions for the protection of rights of perfor!ers an broa casting organi7ations. #hese are calle neighbouring rights un er eals with licences of two kin s> 4oluntary an co!pulsory

2nternational con4entions. #he ter! of protection an the rights grante to the! are ifferent fro! those of the authors.

Chapter 2?

eals with 2nternational Copyright i.e. the power to e3ten

copyright to foreign works6 pro4isions as to work of certain 2nternational Organi7ations an publishe in 2n ia. Chapter ? pro4i es for the registration of copyright. .egistration is optional as the copyright is ac=uire auto!atically i.e. as soon as the work is create . When is the copyright infringe an what are the acts that o not a!ount to infringe!ent are co4ere by chapter ?2. #he latter are calle per!itte uses or fair use or fair ealing of the author@s work. #he Act pro4i es re!e ies to the owner of the copyright if his rights are infringe . #he ci4il re!e ies are pro4i e for in chapter ?22 whereas chapter ?222 eals with the offences an cri!inal re!e ies. Chapter ?22 also eals with !oral rights of the authors i.e. the right to paternity an right to integrity. #hese rights are clubbe un er the hea ing6 Aauthor@s special rightB. Chapter ?28 an ?8 eal with appeals an !iscellaneous pro4isions respecti4ely. the power to restrict rights in work of foreign authors first

II
!5

WOR2S IN WHICH THE COPYRIGHT S34SISTS

App/ica(i/ity of copyright Act !"#1 #he Act e3ten s to whole of 2n ia. 2t ca!e into force on 21.1.1,&+. 2t is an Act

to a!en

an

consoli ate the law relating to copyright. #he act is territorial in

operation an applies to works specifie in section 13. $5 Wor%& in which copyright &'(&i&t& Copyright subsists in following classes of works> a) Original literary6 ra!atic6 !usical C artistic works b) Cine!atograph fil!s an c) -oun recor ings #he copyright will subsist in a work if the following con itions are fulfille D a) 2n the case of a publishe work> i) the work is first publishe in 2n ia6 or

ii) where the work is first publishe outsi e 2n ia6 the author is at the ate of such publication6 or in a case where the author was ea at that ate6 was at the ti!e of his eath6 a citi7en of 2n iaD b) 2n the case of an unpublishe work other than work of architecture the author is at the ate of !aking of the work a citi7en of 2n ia o!icile in 2n iaD an c) 2n the case of a work of architecture6 the work is locate in 2n ia. #he copyright subsists only in the artistic character an e3ten to processes or !etho s of construction. A work publishe in 2n ia shall be ee!e to be first publishe in 2n ia esign. 2t oes not

notwithstan ing that it has been publishe si!ultaneously in so!e other country6 unless such other country pro4i es a shorter ter! of copyright for such workD an a work shall be ee!e to be publishe si!ultaneously in 2n ia an in another country

if the ti!e between the publication in 2n ia an the publication in such other country oes not e3cee thirty ays or such other perio as the Central 9o4ern!ent !ay6 in relation to any specifie country6 eter!ine. <or the purposes of this Act ApublicationB !eans !aking a work a4ailable to the public by issue of copies or by co!!unicating the work to public Co!!unication to the public !eans !aking any work a4ailable for being seen or hear or otherwise en;oye by the public irectly or by any !eans of isplay or iffusion other than by issuing copies of such work regar less of whether any !e!ber of the public actually sees6 hears or otherwise en;oys the work so !a e a4ailable6 Co!!unication through satellite or cable or any other !eans of si!ultaneous co!!unication to !ore than one househol or place of resi ent inclu ing resi ential roo!s of any hotel or hostel shall be ee!e to be co!!unication to the public. 65 Origina/ Wor%& #he copyright Act6 1,&* re=uires that the literary6 ra!atic6 !usical an artistic work will be protecte only if they are Eoriginal@. #he wor Eoriginal@ is not efine in the Act but has been e3plaine by ;u iciary in a nu!ber of cases. #he Fouse of %or s in Ladbroke (Football) Ltd. 4. William Hill (Football) Ltd. G1,($H 1 W%. 2/* (FC) hel that the wor Eoriginal@ oes not !ean that the work !ust be the e3pression of original or in4enti4e thought. Copyright Acts are not concerne with the originality of i eas6 but with the e3pression of thought6 an in the case of literary work6 with the e3pression of thought in print or writing. #he Act oes not re=uire that the e3pression !ust be in an original or no4el for!6 but that the work !ust not be copie fro! another work that it shoul originate fro! author. )egarry ". in Northrop Ltd. 4. Texteam Blackbur Ltd. state the principle as6 ACopyright is concerne not with an originality of the i eas but with the for! of e3pression6 an it is in that e3pression that originality is a re=uisite. #hat e3pression nee not be original or no4el in for!6 but it !ust originate with the author an not be copie fro! another work. A rawing which is si!ply trace fro! another rawing is

10

not an original artistic workD a rawing which is !a e without any copying fro! anything originates with the artist. 2n !esi" ers #uild Ltd. 4. $ussel Williams (Textiles) Ltd. G2///H 1 W%. 2$1( (FC). 2t was sai by the Fouse of %or s that the law of copyright rests on a 4ery clear principle that anyone who by his or her own skill an labour creates an original work of whate4er character shall en;oy an e3clusi4e right to copy that work. Io one else !ay for a season reap that the copyright owner ha sown. #he =uestion whether a work is original or copie fro! so!e other work epen s upon the facts of the case. #he basic pre!ise in all the cases is that law oes not per!it one !an to !ake a profit an to appropriate to hi!self what has been pro uce by the skill6 labour an capital of others. <ollowing are so!e e3a!ples where the e3isting knowle ge6 infor!ation6 ata or facts were use by the author to create an original work in which he has the copyright. (a) 7'e&tion paper&> 2n the % iversit& o' Lo do (ress Ltd. 4. % iversit& Tutorial

(ress Ltd. 1eterson ". while co!!enting on the author@s practice of rawing upon the e3isting stock of knowle ge hel 6 2f an author6 for purposes of copyright6 !ust not raw on the stock of knowle ge which is co!!on to hi!self an others who are stu ents of the sa!e branch of learning6 only those historians who isco4ere fresh historical facts coul ac=uire copyright in their workJ 2f ti!e e3pen e is to be the test6 the rapi ity of an author like %or 0yron in pro ucing a short poe! !ight be an i!pe i!ent in the way of ac=uiring copyright6 an the co!pleter his !astery on his sub;ect6 the s!aller woul be prospect of the author@s success in !aintaining his clai! to copyright.B #he preparation of a =uestion paper by any e3a!iner in4ol4es selection6 ;u g!ent an e3perience. #he =uestions are prepare to fest the stu ents ac=uaintance with the book. (b) A(ri,ge+ent> #he =uestion whether an abri g!ent is an original literary work or not is iscusse in Copinger@s %aw of copyright (1,1&) in following wor s6 A#o constitute a true an e=uitable abri g!ent6 the entire work !ust be preser4e in its precise i!port an e3act !eaning6 an then the act of abri g!ent is an e3ertion of the in i4i uality
11

e!ploye

in !oul ing an

transfusing a large work into a s!all co!pass6 thus

ren ering it less e3pensi4e an !ore con4enient both to the ti!e an use of the rea er. 2n epen ent labour !ust be apparent6 an the re uction of the si7e an work by copying so!e of its parts an o!itting others confers no tile to authorship6 an the result will not be an abri g!ent entitle to protection. #o abri ge in the legal sense of the wor is to preser4e the substance6 the essence of the work in language suite to such a purpose6 language substantially ifferent fro! that of the original. #o !ake such an abri g!ent re=uires the e3ercise of !in 6 labour6 skill an ;u g!ent brought into play6 an the result is not !erely copying. (c) Co+pi/ation > Accor ing to 0erne Con4ention Article 2(&) the collections of literary or artistic works such as encyclope ias an anthologies which6 by reason of the selection an arrange!ent of their contents6 constitue intellectual creations shall be protecte as such6 without pre;u ice to the copyright in each of the works for!ing part of such collection. #he 2n ian Copyright Act oes not specifically eal with co!pilations but ;u iciary has followe the efinition lai own in 0erne Con4ention an treate co!pilation an collecti4e work as ecisions of -upre!e Court of the :- in original literary work. #he 1ri4y Council in )acmilla * +o. 4. +ooper (1,+,) .1C $(, while appro4ing the ,merso 4. !avies (1+$&) hel > 2t is necessary that to secure copyright for a pro uct co!pilation6 labour6 skill an capital shoul be e3pen e sufficiently to i!part to the pro uct so!e =uality or character which the raw !aterial i not possess an which ifferentiates the pro uct fro! the raw !aterial. Fowe4er6 what is the precise a!ount of the knowle ge6 labour ;u g!ent or literary skill or taste which the author of any book or other co!pilation !ust bestow upon its co!position in or er to ac=uire copyright in it cannot be efine in precise ter!s. 2t !ust epen largely upon the special facts of each case an it is 4ery !uch a =uestion of egree. 2n -. #ovi da 4. ,.). #opalakrish a .o e a d a other6 A2. 1,&& )a ras 3,16 the respon ents ha publishe an 5nglishK5nglish #a!il 'ictionary in 1,32. #he appellants were the publishers of si!ilar 'ictionary in 1,$*. An action was brought

12

regar ing the publication an sale of the ictionary by the appellants which was allege to be constituting an infringe!ent of the respon ents@ copyright. #he lower court went through both the books !inutely an foun 6 page after page6 wor after wor 6 la4ishly copie 6 inclu ing the errors6 an foun the se=uence6 the !eanings6 the arrange!ent an e4erything else practically the sa!e6 e3cept for so!e E eliberate ifferences@ intro uce here an there to co4er up the piracy. #he Figh Court hel 6 in the case of co!pilations such as ictionaries6 ga7etteers6 gra!!ars6 !aps6 the arith!etic@s6 al!anacs6 encyclope ias an gui e books6 new publications ealing with si!ilar sub;ect !atter !ust of necessity rese!ble e3isting publications6 an efence of Eco!!on source@ is fre=uently !a e where the new publication is allege to constitute an infringe!ent of an earlier one@. #he Court hel that in law books an in books as !entione abo4e there is 4ery little a!ount of originality but the sa!e is protecte by law an Eno !an is entitle to steal or appropriate for hi!self the result of another@s brain6 skill or labour e4en in such works.@ #he Court further clarifie that where there is a Eco!!on source@6 the person relying on it !ust pro4e that he actually went to the co!!on source fro! where he borrowe 6 e!ploying his own skill6 labour an brains an that he i not !erely copy. ( ) Copye,ite, 8',g+ent& Accor ing to the copyright Act the repro uction or publication6 of any ;u g!ent or or er of a court #ribunal or other ;u icial authority oes not a!ount to infringe!ent of copyright. 2f copyright is recogni7e in the copye ite 4ersion of the law reports then it worl a!ount to gi4ing the publishers a !onopoly in the ;u g!ents of the court which is against the intention of the legislature. 2n ,aster Book +o. 4. !.B. )odak G2//+(3() 1#C -CH6 the -upre!e Court hel copyright !erely by establishing a!ount of skill6 labour an that the copye ite capital put in the ;u g!ents pro uce by publishers of -upre!e Court Cases will not be protecte by copye ite ;u g!ents. 2t is necessary that such skill an labour in4este shoul be sufficient to co!!unicate or i!pact to the ;u g!ent printe in -CC so!e =uality or character which the original ;u g!ent oes not possess an which ifferentiates the original ;u g!ent fro! the printe one. #o clai! copyright6 the author !ust pro uce

13

the !aterial with e3ercise of his skill an ;u g!ent which !ay not be creati4ity in the sense that it is no4el or nonKob4ious6 but at the sa!e it is not a pro uct of !erely labour an capital. (e) Tran&/ation9 #he wor Etranslation@ is not efine in the Act. Accor ing to Blacks La/ !ictio ar&6 Etranslation@ !eans the repro uction in one language of a book6 ocu!ent or speech in another language. Accor ing to shorter O3for 'ictionary Etranslate@ !eans6 Eto interpret6 e3plain6 also to e3press one thing in ter!s of another.@ #he right to translate 4ests with the author of the work. 0ut the translation of literary work is itself a literary work an is entitle to copyright protection. :5 Literary wor% #he copyright Act oes not efine Aliterary workB e3cept that it inclu es

co!puter progra!!es6 tables an co!pilations inclu ing co!puter atabases. %iterary work !eans any work written or printe in any language. 2t nee not be of literary =uality i.e. !ay not ha4e any literary !erit. 53a!ples of literary works are as follows> <iction6 nonfiction6 no4el6 poe!6 story etc.6 1ublishe or unpublishe works Iewspaper6 !aga7ine6 ;ournal6 pa!phlet6 book etc. 'ictionaries an encyclope ia. Catalogues an brochures. #a!bola ticket books Question papers for e3a!ination 'issertation an thesis Contract for!s

14

 .ailway ti!e tables6 #ables an co!pilations inclu ing atabases Abri g!ent6 Original a aptation an translation Co!puter progra!!e are efine as a set of instruction e3presse in wor s6 co s6 sche!es or any other for! inclu ing a !achine rea able !e iu! capable of cashing a co!puter to perfor! a particular task or achie4e a particular result #5 -ra+atic wor% 'ra!atic work inclu esD Any piece for recitationD Choreographic work or entertain!ent in u!b show> -cenic arrange!ent or acting for! of which is fi3e in writing or otherwiseD 'ra!atic work oes not inclu e cine!atograph fil!s. #he principles applicable to literary works are applicable to ra!atic works. ;5 )'&ica/ wor% )usical work !eans a work consisting of !usic an inclu es any graphical notation of such work but oes not inclu e any wor s or any action inten e to be sung6 spoken or perfor!e with the !usic. A aptation of a !usical work is also entitle to copyright protection.

A aptation !eans any arrange!ent or transcription of the work. All kin s of !usical works will be co4ere na!ely6 serious or light6 !o ern or classical chor!ous. 15 Arti&tic wor% Artistic work !eans L 1aining6 rawing inclu ing a iagra!6 !ap6 chart or plan> 'rawing inclu es a !echanical or an engineering rawing but oes not inclu e one trace fro! another as it is not original. Any painting or a
15

rawing is protecte

by

copyright e4en though it oes not ha4e any artistic =uality. Operas6 !usicals solo instru!ents6 few instru!ents in the for! of sonatas6 cha!ber !usic etc. or !any instru!ents like ban s C orchestras. 5ngra4ing which inclu es etchings6 lithographs6 woo cuts6 prints an other si!ilar worksD 1hotograph which inclu es photolithograph an any work pro uce by any process analogous to photography but cine!atograph fil!D Works of sculpture inclu ing casts an !o elsD Work of architecture !eaning any buil ing or structure ha4ing an artistic character or esign6 or any !o el for such buil ing or structure. <or e3a!ple layout of a gar en containing steps6 walls6 pon s etc. Any work of artistic crafts!anship <5 Cine+atograph fi/+ 2t !eans any work of 4isual recor ing on any !e iu! pro uce through a process fro! which a !o4ing i!age !ay be pro uce by any !eans an 6 inclu es a soun recor ing acco!panying such 4isual recor ing6 ACine!atographB shall be as inclu ing any work pro uce by any process analogous to construe oes not inclu e any part of a

cine!atography inclu ing 4i eo fil!. #he author of cine!atograph fil! is the pro ucer accor ing to section 2 ( )(4). Copyright oes not subsist in a cine!atograph fil! if a substantial part of the fil! is an infringe!ent of the copyright in any other work. #he perfor!ance of cine artist is not protecte by the Act. "5 So'n, Recor,ing& Accor ing to section 2(33)6 -oun recor ing !eans a recor ing of soun s fro! which such soun s !ay be pro uce regar less of the !e iu! on which such recor ing is !a e or the !etho of which the soun s are pro uce . Copyright will subsist in a soun recor ing only if it is lawfully !a e G-ection 13(2)(b)H. #he author
16

of soun recor ing is the pro ucer. Copyright in the !usic 4ests with the co!poser whereas in the recor ing 4ests with the pro ucer of the soun recor ing. -ection 32 A intro uce in 1,+$ re=uires certain particulars to be isplaye on soun recor ing or 4i eo fil!s or 4i eo cassettes6 like na!e an a ress of the person who ha !a e the soun recor ing6 na!e an a ress of the owner of the copyrights in the work. Mear of it@s first publication6 certificate grante by the 0oar of <il!. !=5 4a&ic Propo&ition& 'n,er copyright /aw #he -upre!e Court in $.#. 0 a d 4. )1s !eluxe Films (A2. 1,*+ -C 1(13) after analy7ing a nu!ber of authorities an case laws ga4e following propositions> 1. #here can be no copyright in an i ea6 sub;ectK!atter6 the!es6 an plots or historical or legen ry fact an 4iolation of the copyright in such cases is confine to the for!6 !anner an arrange!ent an e3pression of the i ea by the author of the copyrighte work. 2. Where the sa!e i ea is being e4elope in a ifferent !anner6 it is !anifest that the source being co!!on6 si!ilarities are boun to occur. 2n such a case the courts shoul eter!ine whether or not the si!ilarities are on fun a!ental or substantial aspects of the !o e of e3pression a opte in the copyrighte work. 2f the efen ants work is nothing but literal i!itation of the copyrighte work with so!e 4ariation here an there is woul a!ount to 4iolation of the copyright. 2n other wor s6 in or er to be actionable the copy !ust be a substantial an !aterial one which at once lea s to the conclusion that the efen ant is guilty of an act of piracy. 3. One of the surest an the safest test to eter!ine whether or not there has been a 4iolation of copyright is to see if the rea er6 spectator or the 4iewer after ha4ing rea or seen both the works is clearly of the opinion an gets an un!istakable i!pression that the subse=uent work appears to be a copy of the original.

17

$. Where the the!e is the sa!e but is presente an treate 4iolation of copyright arises.

ifferently so that

the subse=uent work beco!es a co!pletely new work6 no =uestion of

&. Where howe4er apart fro! the si!ilarities appearing in the two works there are also !aterial an broa issi!ilarities which negati4e the intention to copy the original an the coinci ence appearing in the two works are clearly inci ental no infringe!ent of the copyright co!es into e3istence. (. As a 4iolation of copyright a!ounts to an act of piracy it !ust be pro4e by clear an cogent e4i ence after applying the 4arious test lai case law iscusse abo4e. *. Where howe4er6 the =uestion is of the 4iolation of the copyright of stage play by a fil! pro ucer or a irector the task of the plaintiff beco!es !ore ifficult to pro4e piracy. 2t is !anifest that unlike a stage play a fil! has !uch broa er perspecti4e6 wi er fiel an a bigger backgroun where the efen ants can be intro ucing a 4arieties of inci ents gi4e a colour an co!ple3ion ifferent fro! the !anner in which the copyrighte work has e3presse the i ea. 54en so6 if the 4iew e4er after seeking the fil! gets a totality of i!pression that the fil! is by an the large a copy of the original play6 4iolation of the copyright !ay be sai to be pro4e . own by the

!!5

I,ea>E?pre&&ion -ichoto+y Accor ing to Article ,(2) of #.21s6 copyright protection shall e3ten to

e3pression an

not to i eas6 proce ures6 !etho s of operation or !athe!atical

concepts as such. 2n 2n ia6 the copyright Act6 1,&* oes not ha4e a si!ilar pro4ision but it is well settle by ;u icial prece ents that the copyright oes not 4est in an i ea but in the e3pression of an i ea. A work is create only when a tangible for! is gi4en to an i ea. !o o"hue 4. 0llied Ne/spapers Ltd. G(1,3*) 3 All 5. &/3H <arewell ". re!arke 6 A A#his6 at any rate6 it clear6 an one can state with this beyon all =uestion that there is no copyright in an i ea6 or in i eas.. if the i ea6 howe4er brilliant

18

an howe4er cle4er it !ay be6 is nothing !ore than an i ea6 an is not put into any for! of wor s or any for! of e3pression such as a picture or a play then there is no such thing as copyright at all. 2t is not until it is (if it !ay put it in that way) re uce into writing or into so!e tangible for!6 that you get any right to copyright at all6 an the copyright e3ists in the particular for! of language in which6 or6 in the case of a picture6 in the particular for! of the picture by which6 the infor!ation or the i ea is con4eye to those who are inten e to rea it or look at it.B 2n .9 Anan @s case6 the court co!pare the play with the fil! an hel 6 AOn a close an careful co!parison of the play an the picture but for the central i ea (pro4incialis! which is not protecte by copyright)6 fro! scene to scene6 situation to situation6 in cli!a3 to antiKcli!a36 pathos6 bathos6 in te3ture an treat!ent an support an presentation6 the picture is !aterially ifferent fro! the play. .ecently6 the Calcutta Figh Court in Barbara Ta&lor Brad'ord 4. 2ahara )edia , tertai me t Ltd. ealt with the =uestion of the i ea e3pression ichoto!y. 2n this case the plaintiff6 author of the book na!e 6 0 Woma o' 2ubsta ce co!plaine against a serial calle . ENarish!a L #he )iracle of 'estiny@. -he allege that the copyright in her book ha been infringe by the respon ents co!pany -ahara who ha finance 6 pro uce an tele4ise the serial. Only one out of the planne three hun re episo es was broa cast at the ti!e of the filing of the suit. #he respon ents a !itte that they ha borrowe the Erags to riches@ the!e of the book but enie ha4ing e4er rea the book. #he court hel > E#he copyright law oes not protect basic plots an stock characters. 2f it grante such protection four or fi4e writers writing fifteenK twenty no4els with stock characters an stock plots coul stop all writers of pop literature fro! writing anything thenceforth.@ !$5 )erger of i,ea an, e?pre&&ion #he 'elhi Figh Court in )attel 3 c. v. 4a&a t 0""ar/alla5 applie the octrine of !erger an refuse to ha4e protection of copyright in ga!es. #he plaintiff in this case clai!e copyright in their wor boar ga!e !arkete as A-C.A00%5-B. 2t was allege that the efen ant pro uce a web base ga!e si!ilar to that of A-C.A00%5-B using the re 6 pink6 blue an light blue titles6 use of i entical pattern

19

of arrange!ent of coloure titles an use of a star pattern on the central =uire. #he efen ant enie the allegations an argue base on the octrine of !erger that there was no copyright in the allege ele!ents in the ga!es since they were i eas of playing ga!e e3presse the court obser4e > <urther!ore6 an !ost i!portantly6 the application of the octrine of !erger woul !ean that the colour sche!e on such a boar can be e3presse only in a li!ite nu!ber of waysD if the plaintiffs@ arrange!ents were to be a4oi e 6 it is not known whether the i ea of such a wor ga!e coul be playe at all. #his octrine of !erger is applicable with respect to ga!es as they consist of abstract rules an play i eas. 0y way of illustration6 the arrange!ents of colours6 4alues on the boar 6 the collocation of lines6 4alue for in i4i ual alphabetical titles. etc.6 ha4e no intrinsic !eaning6 but for the rules. 2f these rules which for! the only !etho of e3pressing the un erlying i ea are to be sub;ect to copyright6 the i ea in the ga!e woul be gi4en !onopoly6 a result not inten e by the law !akers who only wante e3pression of i ea to be protecte . !65 Copyright v5 Confi,entia/ Infor+ation #here has been a territorial an te!poral e3pansion of tele4ision at a fast pace in 2n ia. #here ha4e been nu!erous instances where an in i4i ual has thought of an i ea or a plot or a the!e to be shown on the tele4ision in the for! of a serial6 but lacks resources to !ake it. Fe6 therefore approache a channel with a pro uction plan an wants to sell his i ea. 2t is a well settle position that there is no copyright in an i ea6 the!e or a plot. 0ut6 the proble! arises when the person who has thought of an i ea or a plot for a #ele4ision show conceptuali7es that i ea in the for! of a concept note an gi4es to #.8. channel to consi er the option of con4erting the i ea into work. #he channel instea of buying the i ea an co!pensating the i ea gi4er !onetarily utili7es the i ea an pro uces a progra!!e on the plea that there is no copyright in an i ea or a the!e. #he i ea gi4er on the other han plea s that there is a breach of confi ence an an infringe!ent of his copyright. #he court has iscusse this proble! in a nu!ber of cases an has conclu e that there is a istinction between the law relating copyright
20

in the work an

both coul not be separate . Accepting this6

an confi ence in following wor s6 Awhereas copyright protects !aterial that has been re uce to per!anent for!6 the general law of confi ence !ay protect either written or oral confi ential co!!unication. Copyright is goo against the worl generally while confi ence operates against those who recei4e infor!ation or i eas in confi ence. Copyright has a fi3e statutory ti!e li!it which oes not apply to confi ential infor!ation6 though in practice application of confi ence creases when the infor!ation or i ea beco!es public knowle ge. <urther the obligation of confi ence rests not only on the original recipient6 but also on any person who recei4e the infor!ations with knowle ge ac=uire at the ti!e or subse=uently that it was originally gi4en in confi ence. G-ee 0 il #upta 4. .u al !as"upta6 2//2 (2&) 1#C 1 ('el)D 6ee Tele'ilms Ltd. 4. 2u dial +ommu icatio s5 2//3 (2*) 1#C $&*(0o!) ('0)D %rmi 4uvekar +hia " 4. #lobal Broadcast Ne/s Limited6 2//+ (3() 1#C 3** (0o!)H. #he 0o!bay Figh Court is :r!i "u4ekar@s case hel 6 A2t is often state that there is no copyright in i eas. #here are two aspects to this state!ent the first na!ely6 that it is not the concern to copyright enact!ents to protect i eas unless an until the i eas ha4e foun e3pression in the for! of a work of a category recogni7e as eser4ing of protection. #he secon aspect is the corollary of the first6 that once the i eas ha4e been e3presse in the for! of a work6 it is the for! of e3pression which is the sub;ect of protection6 not the i eas6 which the!sel4es !ay be freely e3tracte fro! the work an absorbe an use by others to pro uce their own works6 so long as the for! of e3pression of the work is not also taken. 2n this respect6 howe4er6 it is to be note that the for! of e3pression of a literary work oes not !ean only the te3t in which that work is written6 it !ay inclu e the selection an arrange!ent in a particular or er of inci ents6 whether factual or fictional. #he sa!e consi erations apply to literary works whose principal purpose is to co!!unicate news6 an in ee it is often state that there is no copyright in news. #his is perhaps not an accurate way of applying the general principle referre to abo4e the fact that the content of a literary work is news oes not pre4ent that work fro! being capable of protection by copyright. 0ut again6 what is protecte is the for! of

21

e3pression of that content. #he infor!ation itself6 as infor!ation strippe

of its

particular for! of e3pression6 !ay be freely use 6 as with any other literary work. 2n this case the plaintiff ha gi4en shape to her i ea by e3pressing it in a etaile concept note an the pro uction plan relating to the progra!!e Awork in 1rogressB. #his ha been substantially repro uce by the efen ant Channel6 na!ely CII 20I in its show title as A-u!!er -how ownB. <or eter!ining whether there was substantial repro uction or not the court applie the Aa4erage 4iewer test.B Accor ing to this test the two works are not to be co!pare with hypercritical an !eticulous scrutiny but fro! the stan point of the obser4ations an i!pressions of an a4erage 4iewer.

22

III

)EANING O0 COPYRIGHT

Copyright is not a singular ter! but it co!prises a nu!ber of rights un er it. -ection 1$ of the Act gi4es certain e3clusi4e rights to the owners of the copyright calle e3clusi4e econo!ic right. #he rights epen upon the kin of work owne by a person. #he Act also gi4es certain special rights to the authors 4i e section &*. #hese special rights are calle )oral rights un er international con4entions. I5 E?c/'&ive Econo+ic Right& Copyright is a property right as one can e3change his rights for !oney. -ection 1$ enu!erates these rights which can be transferre by the owner on consi eration of !oney fro! the transferee. Fence they are calle 53clusi4e 5cono!ic .ights. (a) Literary ,ra+atic or +'&ica/ wor% 2n case of literary6 ra!atic or !usical work not being a co!puter progra!!e the owner of copyright has an e3clusi4e right to o or authori7e the oing of any of the following acts in respect of a work or any substantial part thereof6 na!ely L i) to repro uce the work in any !aterial for! inclu ing the storing of it in any !e iu! by electronic !eansD ii) to issue copies of the work to the public not being copies alrea y in circulationD iii) to perfor! the work in public6 or co!!unicate it to the publicD i4) to !ake any cine!atograph fil! or soun recor ing in respect of the workD 4) to !ake any translation of the workD

4i) to !ake any a aptation of the workD 4ii) to o6 in relation to a translation or any a aptation of the work6 any of the acts specifie in relation to the work in subKclauses(i) to (4i)D

23

(b)

Co+p'ter progra++e Co!puter progra!!e is a literary work6 therefore6 all the abo4e state rights

gi4en to a copyright owner of literary work are also gi4en to the copyright owner of co!puter progra!!e. Fowe4er6 two a itional rights are also gi4en> 1) #o sell or offer for sale any copy of the co!puter progra!!e or 2) #o gi4e on co!!ercial rental or offer for co!!ercial rental any copy of the co!puter progra!!e. #his right will not apply in respect of co!puter progra!!es where the progra!!e itself is not the essential ob;ect of the rental. #he abo4e two rights co!!only clubbe un er rental rights6 are e3ceptions to the first sale or e3haustion octrine. #he first sale octrine allows the purchaser to transfer (i.e. sell6 len or fi4e away) a particular lawfully !a e copy of the copyrighte work without per!ission of the copyright owner. #his !eans that the copyright hol er@s rights to control the change of ownership of a particular copy en s once ownership of that copy has passe to so!eone else. .ental rights are an e3ception to the Aright of first saleB6 therefore the purchase of co!puter progra!!e can neither sell nor gi4e on co!!ercial rental his copy without the per!ission of the copyright owner. (c) Arti&tic wor% #he e3clusi4e econo!ic rights in case of the artistic work are> (i) #o repro uce the work in any !aterial for! inclu ing epiction in three i!ensions of a two i!ensional work or in two i!ensions of a three i!ensions workD (ii) (iii) #o co!!unicate the work to the publicD #o issue copies of the work to the public not being copies alrea y in circulationD (i4) (4) #o inclu e the work in any cine!atograph fil!D #o !ake any a aptation of the workD

24

(4i)

#o o in relation to an a aption of the work any of the acts specifie in relation to the work in subKclauses (i) to (i4)D

2t is to be note that the right of repro uction oes not inclu e the storing of it in any !e iu! by electronic or other !eans.@ Fowe4er6 this lacunae will be re!o4e by the 2/1/ A!en !ent 0ill. 2n 1,,$ a pro4ision was a e to the Act whereby a concept of Eresale share right in original copies was intro uce . Accor ingly6 if an original copy of a painting6 sculpture or rawing or of the original !anuscript of literary6 ra!atic or !usical work is resol for !ore than .s. 1/6/// by the possessor of such work then he has to share the price of resale with the author if he is also the first owner of copyright. #he resale share right can in no circu!stance e3cee ten percent of the resale price. ( ) Cine+atograph fi/+ #he e3clusi4e econo!ic rights in case of the cine!atograph fil!s are> (i) #o !ake a copy of the fil!6 inclu ing a photograph of any i!age for!ing part thereof> (ii) #o sell or gi4e on hire or offer for sale or hireD any copy of the fil!6 regar less of whether such copy has been sol or gi4en on hire on earlier occasionsD (iii) #o co!!unicate the fil! to the publicD

2n cine!atograph fil!s repro uction right is li!ite to !aking a copy of the fil! an in case of soun recor ing to !ake any other soun recor ing e!bo ying it. #he Copyright Act 1,&* oes not efine the wor s Erepro uction@ an Ecopy@. 2t is6 therefore6 essential to fin out the !eaning fro! the ;u icial ecisions an the sche!e of the act. The Bomba& Hi"h +ourt i star 3 dia (rivate Ltd . 4. Leo Bur ett (3 dia)6 hel that #o !ake a copy of the fil! !eans to !ake a physical copy of the fil! itself an not another fil! which !erfely rese!ble the fil!. #he !aking of another fil! is not to be co4ere by the wor Ecopy@ un er section 1$( )(i). such other fil! e4en though it rese!ble co!pletely the copyrighte
25

fil!6

oes not fall within the

e3pression Eto !ake a copy of the fil!@. #herefore6 if the fil! has been fil!e or shot separately by a person an it rese!ble the earlier fil!s6 the subse=uent fil! is not a copy of the first fil! an therefore6 oes not a!ount to infringe!ent of the whole of the copyright of the first fil!. #he position in the case of a literary6 ra!atic or artistic work see!s to be ifferent. A narrow copyright pro uction is accor e to a fil!Osoun recor ing than for a they are eri4ati4e work an 6 therefore6 the re=uire!ent of originally is absent for clai!ing copyright in cine!atograph fil!Osoun recor ing. #he 0o!bay Figh Court followe ecisions ren ere in 4arious 5nglish an

Australian cases6 which are iscusse hereun er. 2n Noro/7ia 4. 0rks Limited a d 8thers6 the 5nglish Copyright Acts of 1,&( an 1,++ were consi ere . 2n this case6 it was the plaintiff@s contention that the efen ant@s fil!s repro uce the essential feature of the plaintiff@s fil!. On this basis6 the plaintiffs allege that the copyright in their fil! ha been infringe because accor ing to the plaintiff6 the !aking of the efen ant@s fil! consiste copying of the plaintiff@s fil! the efence of the efen ants was that they ha !a e their own fil! an 6 therefore6 there was no copying. #he Court after referring to )o ern %aw of Copyright an 'esign by %a ie 1resscott an 8ictoria6 an Copinger an -kone "a!es on +op&ri"ht hel that6 Efor the secon fil! to infringe the copyright in the first fil!6 it ha to be an actual copy of the first fil! itself. 2n respect of a cine!atographic fil! it is the recor ing that is protecte fro! copying an nothing else@. #hat e4en if the efen ant@s fil! e3actly rese!bles the plaintiff@s fil!6 but if the efen ants@ fil! is a reshot of the plaintiff@s fil!6 which repro uces the essential features of the plaintiff@s fil! but oes not copy the plaintiff@s fil!s6 that is6 it oes not an cannot infringe the plaintiff@s copyright in the plaintiff@s fil!. #his ecision follows the ecision of the Australian Court in Telemark Teleproducts (0ust.) (t&. Ltd. 4. Bo d 3 ter atio al. 2t was thus hel that unless there has been a copying of the whole or substantial part of the plaintiff@s fil! itself6 in the sense of a copying of the particular recor ing of reshoot of the fil! cannot be sai to the coy of the fil! for the purposes of infringe!ent.

26

2n 2pelli " #oldber" (roductio v. BB+ (ublishi " Ltd.5 the efen ants ha ac=uire possession of the plaintiff@s fil! an ha !a e a physical copy of the plaintiff@s fil!. 2t was on these facts that the Court ha hel that it was a copy of the plaintiff@s fil! .ental right6 which is an e3ception to the E.ight of <irst sale@ or Ee3haustion octrine@ is also gi4en to the pro ucers of the fil!s. (e) So'n, recor,ing& #he e3clusi4e econo!ic rights 4esting in the pro ucer of the soun recor ings are> (i) (ii) #o !ake any other soun recor ing e!bo ying itD #o sell or gi4e on hire6 or offer for sale or hire6 any copy of the shoul recor ing (iii) #o co!!unicate the soun recor ing to the public.

II5

)ora/ Right& 2n 2n ia !oral rights are referre to as special rights un er -ection &* of the

Act. 2t states that the author of a work has a right to> (a) Clai! authorship of the work. #his is calle paternity right6 an (b) to restrain or clai! a!ages in respect of any istortion6 !utilation6 istortion6 !utilation6

!o ification or other act in relation to the sai work which is one before the e3piration of the ter! of copyright if such #his special right !o ification or other act woul be pre;u icial to his honour or reputation. oes not howe4er6 inclu e the right to insist upon isplaying the work in a particular way. III5 Right& of Perfor+er& #he perfor!ers were not gi4en any protection un er the copyright Act6 prior to 1,,$. #he concerns of the perfor!ers ha4e been a resse in three !a;or international instru!ents> 1) .o!e Con4ention of the protection of perfor!ers
27

pro ucers of phonogra!s an 0roa casting Organi7ation (1,(1)D Agree!ent on #ra e .elate Aspects of 2ntellectual 1roperty (1,,$) an W21O 1erfor!ances an 1honogra!s #reaty (1,,(). A1erfor!erB inclu es an actor6 singer6 !usician6 a perfor!ance. 1erfor!ance in relation to perfor!er@s rights !eans any 4isual or acoustic presentation !a e li4e by one or !ore perfor!ers. #o illustrate a play enacte by actors in a theatre6 li4e ance perfor!ance by a cine actor on stage6 lecture gi4en by a teacher in a class are perfor!ances. A perfor!ance has an e3clusi4e riht to o the following> i) ii) iii) i4) !ake a soun recor ing or 4isual recor ing of the perfor!ancesD to repro uce a shoul recor ing or 4isual recor ing of the perfor!anceD to broa cast the perfor!anceD an to co!!unicate the perfor!ance to the public otherwise than by broa cast. #he abo4e state e3clusi4e rights are not a4ailable to the perfor!er if he has consente to incorporate his perfor!ance in a cine!atograph fil!. #he protection is thus a4ailable to perfor!ers !aking li4e perfor!ances an not to au ioK4isual perfor!ers. #he perfor!er@s rights subsist for fifty years fro! the beginning of the calen ar year ne3t following the year in which the perfor!ance is !a e. 2llustration> -hahrukh perfor!s in an Awar cere!ony. Fe has the e3clusi4e right to !ake a 4i eo recor ing of his perfor!ance. Fe can licence or assign his rights to the e4ent !anger or anyone else. I*5 Right& of 4roa,ca&ting Organi@ation& 54ery broa casting organi7ation has a special right calle Abroa cast ancer6 acrobat6 ;uggler6

con;urer6 snake char!er6 a person eli4ering a lecture or any other person who !akes

repro uction right.B 2n its broa casts. #he rights subsist for twenty fi4e years fro! the beginning of the calen ar year ne3t following the year in which the broa cast is !a e.

28

<or e3a!ple6 the twenty fi4e years will start fro! /1./1.2/12. 'uring this perio the broa casting organi7ation has the e3clusi4e right to> i) ii) rebroa cast the broa cast. Cause the broa cast to be hear or seen by the public on pay!ent of any charges. iii) i4) )ake any soun recor ing or 4isual recor ing of the broa cast #o sell or hire to the public or offer for such sale or hire any such soun recor ing or 4isual recor ing. 2llustration> -tar gol channel shows iifa awar cere!ony on 11.11.2/11

'oor arshan broa casts the sa!e show after ten years but without taking a licence to show fro! -tar gol . 'oor arshan has infringe the broa cast repro uction right of -tar gol 6 as the right to rebroa cast 4ests with -tar gol .

29

I*

IN0RINGE)ENT AN- ACTS NOT A)O3NTING TO IN0RINGE)ENT

Copyright in a work is ee!e to be infringe is following circu!stances iA *io/ation of e?c/'&ive right& of owner9 -ection 1$ gi4es e3clusi4e rights to owner of a copyright in original literary6 ra!atic6 !usical an artistic works an cine!atograph fil!s an soun recor ings. #hese rights ha4e alrea y been e3plaine in chapter 22. Copyright is ee!e to be infringe when any person6 without a licence grante by the owner of copyright or in contra4ention of the licence so grante oes any thing6 the e3clusi4e right to o which

is by this Act conferre upon the owner of the copyright. 2n )icrosoft Corporation 4. Mogesh 1apat 2//& (3/) 1#C 2$& ('el.) it was foun that the efen ants were loa ing the software of plaintiff on the har isk of

co!puters sol by the! without any licence. When a software is sol 6 the purchaser gets a licence agree!ent setting out the ter!s of the per!issible user of the software which is containe in a floppyOC'. #he efen ants in this case i not ha4e any per!ission fro! the plaintiff to copy or sell the licence proga!!es as per software e4elope by the plaintiff. #he efen ant were hel liable for infringe!ent. Any person who !akes Epiracy copyB (not ha4ing licence fro! the author to !ake a copy) of literary6 ra!atic6 !usical work or of a fil! clearly copies by repro ucing the work in a !aterial for! therebyD infringing copyright of author. #he si!plest e3a!ple of an i entical copy woul be repro ucing a literary or ra!atic work by photocopy of it or of a soun recor ing by taping it or by !aking a copy of the co!puter progra!!e or fil!.

30

#he kin s of piracy that affect the right of repro uction of the authors in fil! an !usic in ustry are> Counterfeiting> #his refers to anauthori7e copying of the original fil! or original soun recor ing. #he buyers of anauthori7e recor ing of fil!6 are le to belie4e that they are purchasing genuine pro uct. 1irate recor ing> #his in4ol4es co!pilation an uplication fro! the legiti!ate recor ings

istribution in the !arket for co!!ercial gain.

.ight of repro uction of a person is infringe when any person repro uces a substantial part of plaintiff@s work without a license. 'ifficulties arise when only e3tracts fro! copyrighte works are repro uce by the efen ants. #he courts ha4e lai own tests to eter!ine what is substantial copying. -o!e of the cases on

substantial copying are iscusse below> 2n ..9. Aran @s case6 the -upre!e Court hel that in ascertaining as to whether a substantial part of the work has been repro uce it cannot be epen ant solely on the bulk or length of the e3tract. Iot only the =uality but also the 4alue is re=uire to be looke at. #he ulti!ate test is> whether there is AappropriateB or !ore appropriately A!isappropriationB of the labour of another in the !atter of e3pressionP An infringe!ent of copyright is in the nature of in4asion of a right to property an therefore the intention of the infringe!ent is irrele4ant pro4i e there is infringe!ent. 2n :r!i "u4ekar@s case the court applie the test of i!pressions of an a4erage 4iewer an hel that the stan ar is not to co!pare the two works with hypocritical an !eticulous scrutiny but fro! the stan point of the obser4ations an i!pressions

31

of an a4erage 4iewer. 2n this case it was foun that the efen ant@s show title A-u!!er -how ownB was a substantial repro uction of 1lanintiff@s work title 6 Awork in progressB. 2n Bradbur& 0"re/ 4. #ra&6 the plaintiff owne the copyright in a cartoon. -o!e actors enacte as cartoons on stage by ressing up an posing to look like the original cartoons. 2t was hel that this constitute three i!ensional repro uction of the two i!ensional work as both the works ga4e a feeling that they were sa!e. 2n 2uper +assettes 3 dustries Ltd. 4. Hamar Televisio Net/ork 2/11 ($&) 1#C */('el.) the =uestion arose whether the efen ant took substantial e3tracts fro! the plaintiff@s !usical work. #he court hel that there is co!plete con4ergence on the issue as to what constitutes Asubstantial takingB an the law in 2n ia on this issue is not ifferent fro! that in 5nglan or :nite -tates. #herefore6 while the e3tent of e3tract6 that is6 the A=uantitati4eB test has its part to play in eter!ining infringe!ent of a copyright work6 the A=ualityB is e=ually i!portant. #his is especially so6 in the case of a !usical work. A single note !ay in certain cases lea to an infringe!ent if it for!s an AessentialB part of the copyrighte work. #he test will ha4e to be that of a Alay hearerB. #he court after going through the two works hel that the e3tracts taken by efen ant were substantial. 2n the case of $upe dra .ash&ap 4. 4i/a (ublishi " House 1,,( (3+) '." +16 the plaintiff ca!e to the court seeking an in;unction against the contesting efen ant against publishing an printing past years@ =uestion papers of class ? an ?22 e3a!ination con ucte by Central 0oar of -econ ary 5 ucation (in short

AC0-5B) on the groun that he ha e3clusi4e licence for publishing the past papers
32

an hence6 was the owner of copyright un er -ection &$ of the Copyright Act6 1,&*. #he other =uestion which ca!e up for consi eration was that the enial of right to the contesting efen ants to publish e3a!ination papers woul create a !onopoly in fa4our of the plaintiff an hence6 woul not be in public interest. #he court hel that the argu!ent of public interest was not tenable as it was not as if the e3a!ination papers of the past years were not in public o!ain. #he plaintiff6 being the e3clusi4e licencee6 ha in the past by publishing the paper6 put the! in the public o!ain on pay!ent of royalty to C0-5. #he court in the passing6 howe4er6 obser4e as follows> A)oreover5 the la/ as to cop&ri"ht i 3 dia is "over ed b& a statute /hich does ote provide 'or de'e ce i the ame o' public i terest. 0 i 'ri "eme t o' cop&ri"ht ca ot be permitted merel& because it is claimed to be i public i terest to i 'ri "e a

cop&ri"ht.B ii) Infringe+ent (y '&ing of a p/ace When any person without the licence fro! the owners or the .egistrar of Copyright per!its for profit any place to be use for the co!!unication of the work to the public. Fe will not be hel liable if he ha no reasonable groun for belie4ing that such co!!unication woul be an infringe!ent of copyright. iii) Infringe+ent (y &a/e or hire When any person !akes for sale or hires or sell or lets for hire or by way of tra e isplays or offers for sale or hire any infringing copies of the work co4ere by copyright. i4) Infringe+ent (y ,i&tri('tion for tra,e

33

When any person istributes6 either for the purpose of tra e or to such an e3tent6 as to affect pre;u icially the owner of the copyright6 any infringing copies of the work6 or 4) Infringe+ent (y e?hi(ition When any person e3hibits in public by way of tra e any infringing copies of the workD or 4i) Infringe+ent (y i+port When any person i!ports into 2n ia any infringing copies of the work e3cept the copy of any work for the pri4ate an 4ii) o!estic use of the i!porter.

Infringe+ent in co+p'ter progra++e 2n Whelan Associates6 the #hir Circuit Court of Appeals of :-6 was

confronte whith =uestions6 whether6 e4en if there was no copying of ob;ect co e or source co e6 there coul be copyright infringe!ent in copying the Ao4erallB structure of the progra!!e. #he case was one where the allege infringe!ent was a rewrite of a progra!!e written in one co!puter language in a ifferent language. #he court conclu e that since co!puter software was classifie as a literary work un er the Copyright Act an since prior ecisions ha hel that there coul be infringe!ent of copyright in a play or book by copying the plot or plot e4ices of the play or book when the6 total Aconcept C feelB or Alook an feelB of the allege infringing work was substantially si!ilar to that of the copyright work6 the sa!e test shoul apply to infringe!ent of copyright in co!puter progra!s. 2n early 1,,/s the software writers starte to co!plain that the protection gi4en by courts by way of Alook C feel testB was 4ery broa an as such was inhibiting new e4elop!ents an 6 therefore6 shoul be replace by AAbstraction6 <iltration an Co!parisonB #est. #his approach was e4elope in the case of Co!puter Associates 2nternational 2nc. 4. Altai 2nc. 23 :.-.1.Q. 2 12$1 (1,$2)6 an was en orse by se4eral appeal courts.

34

#he Abstraction test hel e3pression. 2t was articulate

in

eter!ining what is an i ea as oppose

to

by "u ge Fan

in Iicholas 4. :ni4ersal 1ictures

Corporation 1*$1 :.-.1.Q. +$ 2n Cir. (1,3/)6 as> A:pon any work a great nu!ber of patterns of increasing generality will fit e=ually well6 as !ore that !ore of the inci ent is left out. #he last !ay be no !ore than the !ost general state!ent of what the play is about. #here is a point in this series of abstractions where they are no longer protection since.B #he secon step in the test is the filtration stepD the ob;ect of which is to separate out protectable ele!ents of the e3pression fro! nonKprotectable !aterials. -uch nonKprotectable !aterial inclu e ele!ents taken fro! the public ele!ents that coul licensing. Once filtration is co!plete the court !o4e on to co!paring that which has been foun to be susceptible of protection which the allege infringe!ent using the substantial use an substantial si!ilarity test. 2n )A2 syste! Corp. 4. 1eak Co!puter 2nc.6 2( :.-.1.Q. 2 . 1$&+ (1,+3)6 the ninth circuit Court of Appeals foun that the si!ple unauthori7e act of loa ing a progra! into the ran o! access !e!ory of a co!puter constitute infringe!ent since it create a copy that can be percei4e 6 repro uce or otherwise co!!unicate . 2n 2n ia no such case has yet been eci e by the ;u iciary. 45 Act& not con&tit'ting Infringe+ent Copyright Act recogni7es certain acts which though one by a person other than the owner of copyright woul not a!ount to infringe!ent of copyright. #hese e3ceptions can be plea e in efence by the efen ant in an action for infringe!ent of copyright. -o!e of these e3ception are> (1) A fair ealing with a literary6 ra!atic6 !usical or artistic work not being a co!puter progra!!e for the purposes of pri4ate use inclu ing research be use un er fair ealing o!ain octrine or un er co!pulsoryD

35

6criticis! or re4iew6 !aking copies of co!puter progra!!e for certain purposes6 reporting current e4ents in newspapers an !aga7ines or by

broa cast or in a cine!atograph fil! or by !eans of photographs. (2) .epro uction of literary6 ra!atic6 !usical or artistic work for the purposes of ;u icial procee ings an reports thereof6 repro uction of work prepare by the -ecretariat of the %egislature e3clusi4ely for the use of !e!bers of that legislature. (3) .ea ing or recitation in public of e3tracts of literary or ra!atic work. ($) 1ublication in a collection for the use in e ucational institutions in certain circu!stances. (&) .epro uction by teacher or pupil in the course of instructions or in =uestion papers or answers. (() 1erfor!ance in the course of the acti4ities of e ucational institutions in certain circu!stances. (*) #he !aking of soun recor ing in respect of any literary6 ra!atic or !usical work6 ifK i. -oun recor ing of that work ha4e been !a e by or with the licence or consent of the owner or by the hol er of the copyright in the work. ii. #he person !aking the soun recor ings has gi4en a notice of his intention to !ake the soun recor ings6 has pro4i e copies of all co4ers or labels with which the soun recor ings are to be sol 6 an has pai in the prescribe !anner to the owner of the rights in the work royalties in respect of all such
36

soun recor ings to be !a e by hi!6 at the rate fi3e by the Copyright 0oar in this behalf> 1ro4i e that L i. Io alterations shall be !a e which ha4e not been !a e pre4iously by or with the consent of the owner of rights6 or which are not reasonably necessary for the a aptation of the work for the purpose of !aking the soun recor ings. ii. #he soun recor ing shall not be issue in any for! of packaging or with any label which is likely to !islea or confuse the public as to their i entityD iii. Io such soun recor ing shall be !a e until the e3piration of two calen ar years after the en of the year in which the first soun recor ing of the work was !a eD an i4. #he person !aking such soun recor ings shall allow the owner of rights or his uly authori7e agent or representati4e to inspect all recor s an books of account relating to such soun recor ingD

1ro4i e further that if on a co!plaint brought before the Copyright 0oar to the effect that the owner of right has not been pai in full for any soun recor ings purporting to be !a e in pursuance of this clause6 the Copyright 0oar is6 prima 'acie6 satisfie that the

co!plaint is genuine6 it !ay pass an or er ex parte irecting the person !aking the soun recor ing to cease fro! !aking further copies an 6after hol ing such in=uiry as it consi ers necessary6

37

!ake such further or er as it !ay ee! fit6 inclu ing an or er for pay!ent of royalty. +. #he causing of a soun recor ing to be hear in public utili7ing it in an enclose roo! or in clubs in certain circu!stances. ,. 1erfor!ance in an a!ateur club gi4en to a nonKpaying au ience or for religious institutions. 1/. .epro uction in newspaper an !aga7ine of an article on current econo!ic6 political6 social or religious topics in certain circu!stancesD 11. 1ublication in newspapers or !aga7ines a report of a lecture eli4ere in publicD 12. )aking a !a3i!u! of three copies for the use of a public library only if such book is not a4ailable for sale in 2n ia. 13. .epro uction of unpublishe work kept in a !useu! or library for the purpose of stu y or research. 1$. .epro uction or publication of any !atter publishe in Official 9a7ette or report of 9o4ern!ent Co!!issionsOCo!!ittees or other bo ies appointe by 9o4ern!ent. 1&. .epro uction of any ;u g!ent or or er of Court6 tribunal or other "u icial Authority not prohibite fro! publication. 1(. 1ro uction or publication of a translation of Acts of %egislature or .

38

1*. 2nclusion in a cine!atograph fil! of any artistic work per!anently situate in a public place an other artistic work by way of backgroun or inci ental to the principal !atter represente in the fil!. 1+. .epro uction for the purpose of research or pri4ate stu y or with a 4iew to publication of an unpublishe literary6 ra!atic or !usical work kept in a library6 !useu! or other institution to which the public has access. #he pro4ision of this clause shall apply only if such repro uction is !a e at a ti!e !ore than (/ years fro! the ate of eath of the author. #he e3ceptions to infringe!ent liste un er section &2(1) in relation to literary6 ra!atic6 !usical or artistic work will apply also in relation to any translation or a aptation of such work. The !elhi Hi"h +ourt i 2uper +assettes 3 dustries Ltd. 4. Hamar Televisio Net/ork (vt. Ltd. 2/11 ($&) 1#C */ ('el.) su!!ari7e the boar principles on fair ealing as follows> (i) 2t is neither possible not a 4isable to efine the e3act contours of fair ealing. (ii) 2t is a =uestion of fact6 egree6 an at the en of the ay o4erall

i!pression carrie by the courtD (iii) 2n ascertaining whether e3tracts taken fro! copyrighte work ha4e been put to fair use6 the e3tent an the length of the abstract !ay be rele4ant. %ong e3tracts followe by short co!!ents !ay in certain circu!stances be unfair6 while short e3tracts followe by long co!!ents !ay be fair. 2n certain circu!stances e4en s!all e3tracts6 which are taken6 on regular basis !ay point to unfair use of the copyright work.

39

(i4)

#he right to !ake fair use or to eal fairly with the copyrighte work inclu es the right to critici7e not only the style6 but also as the un erlyhing octrine or philosophy of the copyrighte work. 2n this regar criticis! coul be both AstrongB an Aunbalance B. -uch criticis! by itself will not result in forfeiture of the efence of fair ealing. )alicious an un;ustifie criticis! !ay gi4e to the aggrie4e party a cause for instituting an action for efa!ation but it woul certainly not confer a right foun e in copyright.

(4)

2n ascertaining as to what woul constitute reportage of Acurrent e4entsB or woul fall within the a!bit of Acriticis!B of Are4iewB6 Courts ought to a opt a liberal approachD

(4i)

2n iscerning as to whether a person has !a e fair use of copyrighte work6 the stan ar e!ploye ought to be that of a Afair !in e B an Ahonest personB. 2n the case of !usical work the test woul be that of a Alay hearerB.

(4ii)

While e3a!ining the efence of fair ealing6 the length an the e3tent of the copyrighte work which is !a e use of6 as in icate in clause 3 abo4e6 is i!portant6 howe4er6 it cannot be re uce to ;ust a =uantitati4e test without ha4ing regar to the =ualitati4e aspect. 2n other wor s6 en=uiry ought to be !a e as to whether the i!pugne e3tract for!s an essential part of the work of the person in who! inheres the copyright. #his !ay be particularly true in the case of !usical works where a few notes !ay !ake all the ifference>

(4iii) 54en though copyrighte work !ay contain confi ential infor!ation6 the courts woul esist fro! in;uncting the use of such work if it is ifference between a breach of public weal. #hought there is a

confi ence as against infringe!ent of copyright6 the court woul not grant an in;unction in fa4our of the person in who! inheres the copyright if it is contrary to public policy6 that is6 is> (a) i!!oral (b) scan alousD (c) contrary to fa!ily lifeD ( ) in;urious to public life6 public

40

health6 safety or6 is ini!ical to a !inistration of ;usticeD an (e) incites an action which en angers (c) an ( ) abo4e. (i3) #he principle of free o! of e3pression will protect both infor!ation an publish an i eas. <ree o! of e3pression inclu es the right to recei4e infor!ation. 1ublic interest !ay in certain

circu!stances be so o4erwhel!ing that courts woul not refrain fro! in;uncting use of e4en Eleake infor!ationB or e4en the right to use the A4ery wor sB in which the aggrie4e person has copyright6 as at ti!es6 public interest !ay e!an the use of the A4ery wor sB to con4ey the !essage to public at large. While the courts !ay esist fro! granting in;unction base on the principle of free o! of e3pression6 this woul 6 howe4er6 not necessarily protect the infringer in an action institute on behalf of the person in who! the copyright 4ests for a!ages an clai! for an account of profitsD (i3) public interest an what the interests the public nee not be the sa!e (3i) #he !oti4e of the user shall play an i!portant role in assessing as to whether in;uction ought to be grante D (3) (3ii) Co!!ercial use of copyrighte work cannot si!plicitor !ake it unfairD an (3i) (3iii) %astly6 Atransfor!ati4e useB !ay be ee!e in certain situations as fair use of copyrighte workD 2n Wiley 5astern %t . 4. 2n ian 2nstitute of )anage!ent (1 (1,,() '%# 2+1('0)6 the Figh Court after rea ing section &1 ealing with acts a!ounting to infringe!ent an section &2 ealing with acts not a!ounting in infringe!ent !a e the following obser4ation. 2f particular act is not an infringe!ent falling with in any of clauses of -ection &16 then the act cannot be an infringe!ent. -ection &1 being e3hausti4e as to what is infringe!ent of copyright6 resort to -ection &2 is not per!issible. -ection &2 gi4es e3a!ples of fair ealing with regar to literary6 ra!atic6 !usical or artistic work for

41

the purposes of research or pri4ate stu y6 or for purposes of criticis! or re4iew6 or a fair ealing for purpose of reporting current e4ents in a newspaper6 !aga7ine or perio ical or by broa cast or in a cine!atograph fil!. #hese are constitute as not a!ounting to infringe!ent of copyright. #he court went on to obser4e that if6 use !a e by the infringer is not fair6 in the conte3t of purposes set out in -ection &26 it woul not ipso facto fall un er -ection &1D an if6 it a!ounts to efa!ation6 then the re!e y of the person !ay be in the for! of a!ages. Crucially6 it was obser4e that the Abasic purpose of section &2 is to protect the free o! of e3pression un er Article 1,(1) of the constitution of 2n ia so that the research6 pri4ate stu y6 criticis! or re4iew or reporting of current e4ent coul be protecte . -ection &2 is not inten e by 1arlia!ent to negati4ely prescribe what is an Ainfringe!entB

42

*
1.

A3THOR AN- OWNER O0 COPYRIGHT

An another !eans> (i) (ii) (iii) (i4) (4) (4i) in relation to a literary or ra!atic work6 the author of the work in relation to a !usical work6 the co!poserD in relation to an artistic work other than a photograph6 the artistD 2n relation to a photograph6 the person taking the photographD 2n relation to a cine!atograph fil! the pro ucer . 2n relation to any literary6 ra!atic6 !usical or artistic work which is co!puterKgenerate 6 the person who causes the work to be create . #he pro ucer in relation to cine!atograph fil! or soun recor ing6 !eans a

person who takes the initiati4e an responsibility for !aking the work. #he Calcutta Figh Court in 9ee 1ee <il!s 14t. %t . 4. 1ratik Chow hary hel that the wor AresponsibilityB oes not refer to financial responsibility but !eans Aconse=uential legal liabilityB in the recor ings or the fil! !a e. 2. Owner of copyright -ection 1* of the Act lays own who is an owner of copyright. As per section 1*6 author is the first owner of copyright. -o!e e3ceptions are gi4en to this .ule un er the pro4ision to section 1*. #he e3ceptions are as follows> i) 2f a person in the course of his e!ploy!ent in a newspaper6 !aga7ine or a perio ical !akes a literary6 ra!atic or artistic work un er a contract of ser4ice for the purpose of publication then the right of publication an repro uction 4ests with the proprietor of the newspaper. 2n all other respects for e3a!ple6 right of co!!unication to public6 translation right6 a aptation rights etc. the author is the first owner of the copyright. #his can be o4erri en if there is an agree!ent to the contrary between the author an the proprietor. #he law6 therefore retains the authority of the author to his property. #he fun a!ental test to be applie in eter!ining whether a person is engage in Ea contract of ser4ice@ or Econtract for ser4ice is A2s the person who ha engage hi!self to
43

perfor! these ser4ices perfor!ing the! as a person in business on his own accountPB 2f the answer to that =uestion is AyesB then the contract is a contract for ser4ice6 on the other han 6 if the answer is AIoB then the contract is a contract of ser4ice. ii. 2f a person for a 4aluable consi eration gets a photograph taken6 or a painting or portrait rawnD or an engra4ing or a cine!atograph fil! !a e then such a person is the owner of copyright an not the author. Fowe4er6 there can be an agree!ent to the contrary. iii. 2n case of a work !a e in the course of the author@s e!ploy!ent un er contract of ser4ice6 the e!ployer is the owner of copyright6 unless there is an agree!ent to the contrary. <or e3a!ple6 a software engineer e!ploye with an 2# co!pany e4elops a software. #he co!pany auto!atically beco!es the owner of copyright unless the contract of e!ploy!ent specifies that the engineer will be the copyright owner. i4. 2n the case of any a ress or speech eli4ere in public6 the person who has ress

eli4ere 6 such a ress or speech or if such person has eli4ere such a

or speech on behalf of any other person6 such other person shall be the first owner of the copyright there in notwithstan ing that the person who eli4ers such a a ress or speech6 or6 as the case !ay be6 the person on whose behalf such ress or speech ress or speech is eli4ere 6 is e!ploye by any other person who arranges

such a ress or speech or on whose behalf or pre!ises such a is eli4ere D 4.

2n the case of a go4ern!ent work6 go4ern!ent shall6 in the absence of any agree!ent to the contrary6 be the first owner of the copyright thereinD

4i.

2n the case of a work !a e or first publishe by or un er the irection or control of any public un ertaking6 such public un ertaking shall6 in the absence of any agree!ent to the contrary6 be the first owner of the copyright therein.

A1ublic un ertakingB !eans L (i) an un ertaking owne or controlle by go4ern!entD or

44

(ii) a go4ern!ent co!pany as efine in section (1* of the Co!panies Act6 1,&( or (iii) A bo y corporate establishe by or un er any Central6 1ro4incial or -tate Act. 4ii. 2n the case of a work to which the pro4isions of section $1 apply6 the

international organi7ation concerne shall be the first owner of the copyright therein.

65

A&&ign+ent of copyright #he owner of the copyright in an e3isting work or the prospecti4e owner of the

copyright in a future work !ay assign to any person the copyright either wholly or partially an either generally or sub;ect to li!itations an either for the whole ter! of the copyright or any part thereof> 2n the case of the assign!ent of copyright in any future work6 the assign!ent shall take effect only when the work co!es into e3istence. Where the assignee of a copyright beco!es entitle to any right co!prise in the copyright6 the assignee as respects the rights so assigne 6 an the assignor as respects the rights not assigne 6 shall be treate for the purposes of this Act as the owner of copyright an the pro4isions of this Act shall ha4e effect accor ingly. Assignee as respects the assign!ent of the copyright in any future work inclu es the legal representati4es of the assignee6 if the assignee ies before the work co!es into e3istence. :5 )o,e of a&&ign+ent Io assign!ent of the copyright in any work shall be 4ali unless it is in writing signe by the assignor or by his uly authori7e agent. #he assign!ent of copyright in any work shall i entify such work6 an shall specify the rights assigne an the uration an territorial e3tent of such assign!ent. #he assign!ent of copyright in any work shall also specify the a!ount of royalty payable6 if any6 to the author or his legal heirs uring the currency of the assign!ent an the assign!ent

45

shall be sub;ect to re4ision6 e3tension or ter!ination on ter!s !utually agree upon by the parties. Where the assignee oes not e3ercise the rights assigne to hi! within a perio of one year fro! the ate of assign!ent6 the assign!ent in respect of such rights shall be ee!e to ha4e lapse after the e3piry of the sai perio unless otherwise specifie in the assign!ent. 2f the territorial e3tent of assign!ent of the rights is not specifie 6 it shall be presu!e to e3ten within 2n ia. #he abo4e pro4ision is applicable to all the assign!ents !a e after 1/. &.1,,&. #5 -i&p'te& with re&pect to a&&ign+ent of copyright An assignor can file a co!plaint before the Copyright 0oar if assignee fails to !ake sufficient e3ercise of the rights assigne to hi!. 2t is i!portant to show that the failure on the part of the assignee cannot be attribute to any act or o!ission of the assignor. #he 0oar can re4oke such assign!ent after hol ing an en=uiry. 2f there is a ispute with regar to assign!ent6 then any aggrie4e party can file a co!plaint before the Copyright 0oar . #he 0oar will then hol an en=uiry an pass such or er as it !ay ee! fit. 2t can e4en pass an or er for the reco4ery of any royalty payable un er the assign!ent ee . #he copyright 0oar cannot re4oke the assign!ent within a perio of fi4e years fro! the ate of such assign!ent. Fowe4er6 an an assign!ent can be re4oke by the 0oar only if it is satisfie that the ter! of assign!ent are harsh to the assignor who is an author. Tran&+i&&ion of copyright in +an'&cript (y te&ta+entary ,i&po&ition > Where un er a be=uest a person is entitle to the !anuscript of a literary6 ra!atic of !usical work6 or to an artistic work6 an the work was not publishe before the eath of the testator6 the be=uest shall6 unless the contrary intention is in icate in the testator@s will or any co icil thereto6 be construe as inclu ing the copyright in the work insofar as the testator was the owner of the copyright i!!e iately before his

46

eath. A)anuscriptB !eans the original written by han or not.

ocu!ent e!bo ying the work6 whether

Right of a'thor to re/inB'i&h copyright> #he author of a work !ay relin=uish all or any of the rights co!prise in the copyright in the work by gi4ing notice in the prescribe for! to the .egistrar of Copyrights an thereupon such rights shall cease to e3ist fro! the ate of the notice. On receipt of a notice the .egistrar of Copyright shall cause it to be publishe in the Official 9a7ette an in such other !anner as he !ay ee! fit.

*I

-3RATION O0 COPYRIGHT Copyright has a te!poral uration. Accor ing to 0erne Con4ention it is the life

of the author plus fifty years. #his is the !ini!u! protection which e4ery country is obligate to pro4i e un er copyright law. 2n 2n ia ifferent ter! is specifie for ifferent kin s of work. Once the perio of protection e3pires6 the work goes into public o!ain an beco!es public property. !5 Ter+ of copyright in p'(/i&he, /iterary ,ra+atic +'&ica/ an, arti&tic wor%&9 Copyright shall subsist in any literary6 ra!atic6 !usical or artistic work (other than a photograph) publishe within the life ti!e of the author until si3ty years fro! the beginning of the calen ar year ne3t following the year in which the author ies. .eference to the author shall6 in the case of a work of ;oint authorship6 be construe as a reference to the author who ies last. <or e3a!ple6 if the author ies on 1.1.2/1/ or 12.12.2/1/6 the ter! of copyright in both the case will begin on 1.1.2/11. $5 Ter+ of copyright in anony+o'& an, p&e',ony+o'& wor%9 2n the case of a literary6 ra!atic6 !usical or artistic work (other than a

photograph)6 which is publishe anony!ously or pseu ony!ously6 copyright shall subsist until si3ty years fro! the beginning of the calen ar year ne3t following the year in which the work is first publishe .

47

Where the i entity of the author is isclose before the e3piry of the sai perio 6 copyright shall subsist until si3ty years fro! the beginning of the calen ar year ne3t following the year in which the author ies. 3. Ter+ of copyright in po&th'+o'& wor% 2n the case of a literary6 ra!atic or !usical work or an engra4ing6 in which copyright subsists at the ate of the eath of the author or6 in the case of any such work of ;oint authorship6 at or i!!e iately before the ate of the eath of the author who ies last6 but which6 or any a aptation of which6 has not been publishe before that ate6 copyright shall subsist until si3ty years fro! the beginning of the calen ar year ne3t following the year in which the work is first publishe calen ar year ne3t following that year. A literary6 ra!atic or !usical work or an a aptation of any such work shall be ee!e to ha4e been publishe 6 if it has been perfor!e in public or if any soun recor ing !a e in respect of the work ha4e been sol to the public or ha4e been offere for sale to the public. $. Ter+ of copyright in photograph& cine+atograph fi/+& an, &o'n, recor,ing #er! of copyright in photographs6 cine!atograph fil!s an soun recor ings shall subsist until si3ty years fro! the beginning of the calen ar year ne3t following the year in which the photograph6 fil! or soun recor ing is publishe . #5 Ter+ of copyright in govern+ent wor% wor%& of p'(/ic 'n,erta%ing& an, wor%& of Internationa/ organi@ation5 2n all the abo4e cases the ter! is si3ty years fro! the beginning of the calen ar years ne3t following the year in which the work is first publishe . or6 where an a aptation of the work is publishe in any earlier year6 fro! the beginning of the

48

*II

LICENCES

#he copyright owner has e3clusi4e rights in the works specifie in the Act. Fe alone has the authority to grant a licence with respect to his work. Fowe4er6 the Act recogni7es two kin s of licences> a) 4oluntary licence b) co!pulsory licence A5 *o/'ntary /icence> #he owner of the copyright in any e3isting work or the prospecti4e owner of the copyright in a future work !ay grant any interest in the right by licence in writing signe by hi! or his uly authori7e agent. 2f the licence is with respect to a future work then the licence shall take effect only when the work co!es into e3istence. 45 Co+p'/&ory /icence&> (i)Compulsory licence in works withheld from public Co!pulsory licence can be grante if at any ti!e uring the ter! of the

copyright of a publishe work or that which has been perfor!e in public has been withhel fro! public for following reasons> a) copyright owner has refuse to republish or allow republication of the work or b) c) has refuse to allow perfor!ance in public of the work6 or has refuse to allow co!!unication to the public by broa cast of such work on ter!s which the co!plainant consi ers reasonable or ) has refuse to allow co!!unication to the public by broa cast any work recor e in a soun recor ing on ter!s which the co!plainant consi ers reasonable. 2t is i!portant to note that co!pulsory licence is to be grante only if the work is an 2n ian work. Fowe4er6 the Copyright A!en !ent 0ill6 2/1/ ai!s to apply this pro4ision to foreign works also an not to restrict it only to 2n ian works.

49

#he pro4ision co!es into play when any person files a co!plaint to the Copyright 0oar alleging that works ha4e been withhel fro! public. #he 0oar will then gi4e an opportunity of being hear to the owner of the copyright. 2f the 0oar is satisfie that the groun s of refusal are not reasonable then it will irect the .egistrar of copyrights to grant to the co!plainantt a licence to republish the work6 or as the case !ay be. #he copyright 0oar !akes pro4ision for granting co!pensation to the owner an !ay also prescribe so!e other ter!s an con itions. 2n , tertai me t Net/ork (3 dia) Limited v. 2uper +assette 3 dustries Ltd.5 a co!plaint was file by 5ntertain!ent Ietwork6 running a .a io <) Channel un er the bran na!e E.a io )irchi@ against -uper Cassettes 2n ustries %t . (-C2%) who is not a !e!ber of 1hotographic 1erfor!ance %t . (11%)6 a copyright society in respect of soun recor ings. Co!plainant !a e se4eral atte!pts to obtain a licence for -C2% to play its soun recor ings but it was not issue to it for one reason or the other. #he Copyright 0oar hel > AA plain rea ing of -ection 31 !akes it clear that a person gets a right to !o4e the Copyright 0oar where in the case of a soun recor ing the ter!s are not such which the co!plainant consi ers reasonable. .easonability is not here the test that is usually e!ploye in the law of #orts or un er Article 1, of the Constitution. #he !easure is not a reasonable !an. .easonability here is to be ;u ge solely by the co!plainant. 2f the co!plainant sub;ecti4ely co!es to the conclusion that the ter!s are not reasonable6 he ac=uires the right to the !o4e the Copyright 0oar .B

Co+p'/&ory Licence in 3np'(/i&he, In,ian Wor%& An author cannot be force to publish his work. 0ut6 if the work is an

unpublishe 2n ian work an the author of the work is ea or unknown or cannot be trace 6 the .egistrar !ay grant a licence to any person or applicant for publishing such work or its translation in any language. -uch person has to take the following steps in or er to get the licence for publication or translation thereof>

50

1. #he applicant shall publish his proposal in one issue of a aily newspaper in 5nglish language ha4ing circulation in the !a;or part of the country. 2. 2f the applicant wants to publish the translation of the work then proposal is also to be publishe in one issue of any aily newspaper in that language 3. Apply to the Copyright 0oar prescribe fee. $. Attach a copy of the a 4ertise!ent of the aily newspaper alongwith the application. #he Copyright 0oar will then hol an in=uiry an 6 if satisfie 6 irect the .egistrar of Copyrights to grant to the applicant a licence to publish the work or translation thereof. #he .egistrar of Copyrights will then irect the applicant to eposit the a!ount of the royalty eter!ine by the Copyright boar in 1ublic Account of 2n ia or any other account specifie by copyright 0oar . #he owner of the copyright6 his heirs6 e3ecutors or legal representati4es can clai! royalty fro! his account at any ti!e. #he first choice of posthu!ous publication of an unpublishe 2n ian work is gi4en to the heirs6 e3ecutors or legal representati4es of the author. #he con ition prece ent in this case is that the Central 9o4ern!ent shoul consi er its publication esirable in the national interest. #he Central 9o4ern!ent perio then the Copyright 0oar will consi er the prescribes a perio for publication by the heirs6 etc. 2f the work is not publishe within the specifie application for publication by any person other than the heirs6 etc. (iii) Licence to Pro,'ce an, P'(/i&h tran&/ation& of Literary or -ra+atic wor%& -ection 32 of the 2n ian Copyright Act6 1,&*6 pro4i es that any person can apply to the Copyright 0oar for a licence to pro uce an publish a translation of a literary or ra!atic work in any language after a perio of se4en years fro! the first publication of the work. <or e3a!ple the A#he 9o of -!all #hingsB by Arun hati
51

in the prescribe

for! alongwith the

.oy6 which won the 0ooker 1ri7e6 has been translate into a nu!ber of languages but no translation of it has appeare in6 )alayala!. -he has refuse per!ission espite so!e atte!pts to this en because she was not satisfie with the translation. -he has the right to o this because the right to translate or to per!it translations of one@s work is an e3clusi4e right gi4en to the author un er copyright law. Fowe4er6 after se4en years of first publication the Copyright 0oar !ay be approache for per!ission to publish translation. #his is in accor ance with the principle of knowle ge in the interest of facilitating the progress of ci4ili7ation. <urther6 in accor ance with the principle of !aking work a4ailable to the public6 -ection 32(1A) pro4i es that a person !ay apply to the Copyright 0oar for a licence to pro uce an publish a translation6 in printe or analogues for!s of repro uction6 of a literary or ra!atic work6 other than an 2n ian work6 in any of three years fro! the first isse!inating

language in general use in 2n ian after a perio

publication of such work6 if such work is re=uire for the purposes of teaching6 scholarship6 or research. 2t is also pro4i e that where such translation is in a language not in general use in a e4elope country6 such application !ay be !a e after a perio of one year fro! such publications. (i4) Licence to Repro,'ce an, P'(/i&h wor% for certain p'rpo&e& > A pro4ision was intro uce in 1,+3 for grant of licence to any person to repro uce an publish a work after the e3piration of prescribe perio s if the copies of e itions of a literary6 scientific or artistic work is not !a e a4ailable in 2n ia or the copies ha4e not been put on sale in 2n ia for a perio of si3 !onths. #he copies are ee!e to be Enon a4ailable@ if they are a4ailable for syste!atic instructional acti4ity at a price higher than the nor!al charges in 2n ia for co!parable works. #he copyright 0oar !ay issue nonKe3clusi4e licences to keep the prices at co!pleti4e rates. -o it can be seen that there are ways to ensure that the work is a4ailable to the public if there is a genuine nee for it. At the sa!e ti!e the author or owner of the copyright is not utterly ispossesse because the 0oar generally irects the

52

pay!ent of co!pensationOroyalty to the! e4en if the or er to pro uceOpublish their work is against their wishes.

53

*III RE)E-IES 0OR IN0RINGE)ENT O0 COPYRIGHT

!5 Intro,'ction> 2nfringe!ent un er section &1 can be categori7e un er fi4e hea s> i) where a person oes an act which is the e3clusi4e right of the copyright owner ii) acts regar ing perfor!ances of copyrighte work iii) i!porting of infringing copy i4) !aking copies for sale6 hire or isplay for tra e 4) con4ersion of works .e!e ies for infringe!ent of copyright can be classifie un er three hea s i) ii) iii) $5 A !inistrati4e Ci4il Cri!inal

A,+ini&trative Re+e,ie& #his re!e y is a4ailable only to pre4ent i!port into 2n ia of copies of

copyrighte work !a e outsi e 2n ia6 which if !a e in 2n ia woul infringe the copyright. -ection &3(1) per!its an owner of copyright or his uly authori7e agent to !ake an application to the .egistrar of Copyrights re=uesting hi! to pass an or er to pre4ent i!portation of such infringing copies. #he .egistrar is e!powere un er section &3(2) to enter any ship6 ock or pre!ises where such copies !ay be foun an to e3a!ine such copies6 or he !ay authori7e so!eone to o so on his behalf. All copies of the work to which the or er of the .egistrar applies shall be ee!e to be the goo s of which the i!port has been prohibite or restricte un er section 11 of the Custo!s Act 1,(2 an all the pro4isions of the Custo!s Act shall ha4e effect accor ingly. -ection 11 of the Custo!s Act pro4i es that if the Central 9o4ern!ent is satisfie that it is necessary for the protection of patents6 tra e!arks an copyright6 it !ay prohibit either absolutely or sub;ect to con itions6 the i!port or e3port of goo s
54

of any specifie

escription. #he goo s confiscate

in nor!al course un er the

Custo!s Act 4est in the go4ern!ent but pro4iso to section &3(3) pro4i es that all copies confiscate by the or er of .egistrar un er section &3(1) shall be eli4ere to the owner of the copyright in the work. 65 A,+ini&trative +achinery in In,ia A copyright office is establishe for the purposes of this Act. 2t is un er the i!!e iate control of .egistrar of Copyrights who acts un er the superinten ence an irection of the Central 9o4ern!ent. A Copyright 0oar is constitute un er section 11 of the Act for the ischarge of certain ;u icial functions. 2t consists of a Chair!an an two or !ore (not e3cee ing fourteen) !e!bers. #he 0oar has power to regulate its own proce ure6 inclu ing the fi3ation of places an ti!e of its sittings. #he 0oar is ee!e to be a Ci4il court for the purpose of sections $+/ an $+2 of the Co e of Cri!inal 1roce ure . All the procee ings before the 0oar are ee!e to be ;u icial procee ings within the !eaning of -ections 1,3 an 22+ of the 2n ian 1enal Co e . #he following isputes are to be eci e by the Copyright 0oar > i) Whether a work has been publishe an as to the ate on which the work was publishe for the purposes of Chapter 8 Gsection ((a)H. ii) Whether the ter! of the copyright for any work is shorter in any other country than un er this Act Gsection ((b)H. iii) 'isputes arising in respect of assign!ent of copyright un er section 1,A. i4) 9rant of co!pulsory licences in respect of the 2n ian works withhel fro! public (section 31). 4) 9rant of co!pulsory licences to publish unpublishe (section 31A). 4i) .ectification of register on the application of the .egistrar of Copyrights or of any person aggrie4e (section &/). 2n ian works

55

:5

Appea/& again&t Or,er& of Regi&trar of Copyright& an, Copyright 4oar, C&ection 1$A Any person aggrie4e by any ecision or or er of the .egistrar !ay appeal to the Copyright 0oar within three !onths fro! the ate of the or er or ecision. An appeal against all or ers passe by the Copyright 0oar e3cept those passe un er section ( lies to the Figh Court within whose ;uris iction the appellant resi es or carries on business.

#5

Civi/ Re+e,ie& A ci4il suit is nor!ally institute by way of filing of a plaint in the 'istrict

CourtOFigh Court #he Copyright law allows a plaintiff to sue for infringe!ent in a court within whose ;uris iction the plaintiff resi es or carries on business or works for gain. #he plaintiff !ay also file an application for interi! relief pen ing trial6 which !ay inclu e an interlocutory in;unction6 appoint!ent of court co!!issionerOrecei4er to 4isit the efen ant@s pre!ises to take stock or !ake an in4entory of infringing rights of the owners. #he court has been liberal in granting in;unctions where there has been a pri!a facie case of piracy or counterfeiting . Ci4il re!e ies can be i4i e into three categories> (i) (ii) (iii) (i) 2n;unctions 'a!ages Account for profits

In8'nction& A. Interlocutory Injunction 2ssuance of in;unction is always a iscretion of the court. Fowe4er such issuance !ust be gui e by so!e principles. An interlocutory in;unction !ay be grante e4en if the plaintiff oes not fully establish his title to the copyright or has only an e=uitable right or the =uantity of the allege infringing copies ha4e not been ascertaine .

56

#he interlocutory in;unction shall not be grante where the efen ant !ight suffer irreparable in;ury. 2n 2ubhaiah 4. 2a kara Nair (1,*,) the court obser4e consi ere that Awhere piracy is plea e 6 in;unction being an e=uitable re!e y 6which is grante by the court in e3ercise of it iscretion6 has to be fro! 4arious facets which arise fro! a particular set of circu!stances in each case. #here !ay be cases in which the grant of an in;unction te!porary or per!anent will only !eet the en s of ;ustice as an alternati4e safeguar for the preser4ation of the right of the challenging party cannot at all be thought of. #here !ay also be cases where the re!e y of in;unction has to be !a e fle3ible an a ;ustable to the situation arising in each case. #he plaintiff seeking in;unction6 has to !ake out a prima-'acie case in his fa4our an also has to con4ince the court that if interlocutory in;unction is not grante it will cause irreparable in;ury to the plaintiff. 0. Anton Piller Order #he Anton 1iller or er is an or er grante by the court per!itting the inspection of pre!ises on which it is belie4e that so!e acti4ity which infringes the copyright of the plaintiff is being carrie on. #he or er has a nu!ber of features which !akes it particularly an appropriate re!e y in the conte3t of piracy. <irst6 the or er is grante ex-parte6 that is6 without prior warning being gi4en to the efen ant. #he essence of the or er is that it takes the efen ant by surprise6 an preclu es the efen ant fro! estroying or re!o4ing 4ital e4i ences. #he Or er is not a search warrant6 it only authori7es an inspection of pre!ises with the per!ission of the efen ant. 5ntry without per!ission of the efen ant woul be a trespass. -econ ly6 the ter!s on which the or er is grante enables the copyright owner to inspect the pre!ises of the efen ant6 an all ocu!ents (inclu ing business infor!ation6 such as bills6 in4oices6 sources of supply an custo!er lists) relating to the allege infringe!ent. 0y 4irtue of these ter!s6 the copyright owner is gi4en the !eans whereby he !ay be able to establish the source of supply of pirate works6 an the e3tent of

57

sales6 which ha4e taken place. #his will assist hi! in establishing the a!ount of a!ages to which he !ay be entitle to. #hir ly6 the or er for inspection is often acco!panie by an in;unction restraining the efen ant fro! altering or re!o4ing in any way articles or inspection. C. Mare a Injunction )are4a 2n;unction restrains the efen ant fro! isposing of assets which !ay be re=uire to satisfy the plaintiff@s clai! or re!o4ing the! fro! the ;uris iction of the court. ii5 -a+age& #he nor!al ai! of an awar of a!ages is to co!pensate the plaintiff for the har! cause consi ere > a) Whether the plaintiff an efen ant are in actual co!petition. to hi!. While assessing the a!ages following con itions are ocu!ents referre to in the or er for

b) Whether the efen ant !ight ha4e ha the licence if only he ha sought it6 (if the plaintiff an c) the !easure of efen ant are foun in actual co!petition). a!ages will likely be what the plaintiff woul ha4e

suffere by the con uct of efen ant. 2n :N an :-6 there is a pro4ision for a itional a!ages in the case of

flagrant infringe!ent of copyright. 2t is necessary to establish that the infringer@s con uct has been eliberate an calculate 6 an that he has obtaine a pecuniary a 4antage in e3cess of the a!ages that he woul otherwise ha4e to pay. #here is no pro4ision in the 2n ian Copyright Act for the awar of a itional a!ages in special circu!stances such as flagrancy of the infringe!ent or the fortune reape by the efen ant by his !is ee . Fowe4er6 infringe!ent of copyright being a tort6 there is no bar on courts in 2n ia to awar e3e!plary or puniti4e a!ages in appropriate cases. 2t has infact one so in a nu!ber of situations 6 specially where the co!puter software has been loa e by the co!puter seller without any licence to o it.

58

iii5 Acco'nt of profit& #he efen ant !ay be aske to account to plaintiff the profits earne by hi! on account of infringing the copyright of plaintiff. <or this purpose6 there has to be an in4estigation of actual accounts of efen ant. 2n ).L. #upta 4. The Board o' school ,ducatio Har&6 the efen ant was or ere to pay 2/ per cent of the profits to the plaintiff6 as the !atter copie was less than oneKtenth of the book. 2n (. Lakshika tham 4. $amkrish a (ictures6 the Court hel that the re!e y of in;unction can be ;oine either with that of the a!age or accounts6 but the re!e ies of accounts an ;5 a!ages can in no case be ;oine .

Cri+ina/ Re+e,ie& #he Copyright Act 1,&* creates offences an enables the owner of the

copyright to initiate cri!inal procee ings against the offen er .-ection (3 creates the offences an section (30 to (( eal with 4arious penalties an proce ures to be followe in co!bating the offences. 2t is also to be note that ci4il an cri!inal re!e ies are not only si!ultaneously. #he infringer is punishable with i!prison!ent for a ter! between ( !onths to 3 years an with a fine of between ` &/6///.// to ` 2 lakhs. Where the infringe!ent is not for gain or in the course of tra e6 lesser sentence an fine !ay be i!pose by the court. <or secon an subse=uent con4ictions6 -ection (3A pro4i es for a !ini!u! fine of ` 1 lakh an a !ini!u! sentence of one year. #he Act confers powers on the police to sei7e6 without warrant6 all copies of the infringing work an Eplates@ for !aking the infringing copies. #he offence of infringe!ent is punishable with i!prison!ent of upto three years an is6 therefore6 a cogni7able offence6 which !eans that the police can take cogni7ance of the offence an arrest an infringer without a warrant. 2n a ition6 the police is e!powere to sei7e6 without warrant6 all copies of the infringing work an
59

istinct but also in epen ent an

can be a4aile

of

plate for !aking the infringing copies. 2n a ition6 an owner of copyright !ay choose to file a co!plaint in a cri!inal court irectly. 15 Who can +aintain the cri+ina/ procee,ing& As per -ection (3 of Copyright Act any person who knowingly infringes or abets the infringe!ent of the copyright in any work or any other right conferre by the Copyright Act co!!its the offence of infringe!ent unless his acts are protecte by the e3ceptions pro4i e un er -ection &2 of the Act. 2n Na"i +ha d v. 2tate (1,+1) the court obser4e that A1iracy a 4ersely affects the financial interest of the copyright owner or the licensee an 6 therefore6 it has been hel that they alone shoul be able to !aintain any cri!inal action un er section (3.B <5 Infringe+ent of copyright in Co+p'ter Progra++e -ection (30 states that any person who knowingly !akes use of an infringing copy of a co!puter progra!!e on a co!puter is punishable by> i) A ter! of i!prison!ent of not less than se4en ays6 but which !ay e3ten upto 3 yearsD an ii) A fine of not less than ` &/6/// but which !ay e3ten to two lakh rupees

#he pro4iso to this section states that if the infringe!ent has not been !a e for gain in the course of tra e or business6 the Court !ay6 for a e=uate an special reasons to be !entione in the ;u ge!ent6 not i!pose any sentence of i!prison!ent an !ay i!pose fine of upto ` &/6///. "5 Power of the po/ice to &ei@e infringing copie& -ection ($(1) states that any police officer who is atleast a subKinspector in rank !ay 6if he is satisfie 6 that an offence un er -ection (3 in respect of the infringe!ent of copyright in any work has been6 or is being6 or is likely to be6 co!!itte 6 sei7e without warrant6 all copies of the work6 an all plates use for the purpose of !aking infringing copies of the work6 where4er foun 6 an all copies an plates so sei7e shall6 as soon as practicable6 be pro uce before a !agistrate6

60

-ection ($ (2) states that any person ha4ing interest in any copies of a work6 or plates sei7e un er -ection ($ (1) !ay6 within 1& ays of such sei7ure6 !ake an application to the !agistrate for such copies or plates being restore to hi! an the !agistrate6 after hearing the applicant an the co!plainant an !aking such further in=uiry6 as !ay be necessary6 shall !ake such or er on the application as he !ay ee! fit. #he Court trying any offence un er this Act !ay6 whether the allege offen er is con4icte or not6 or er that all copies of the work or all plates in the possession of the allege offen er6 which appear to it to be infringing copies6 or plates for the purpose of !aking infringing copies6 be eli4ere up to the owner of the copyright. !=5 Pena/ty for +a%ing fa/&e entrie& in regi&ter -ection (* states that any person who !akes or causes to be !a e a false entry in the .egister of Copyright !aintaine un er this Act6 or !akes or causes to be !a e a writing falsely purporting to be a copy of any entry in such register or pro uces or ten ers or causes to be pro uce or ten ere as e4i ence any such entry or writing knowing6 the sa!e to be false shall be punishable with> i!prison!ent which !ay e3ten to one year6 or a fine6 or both. !!5 Pena/ty for +a%ing any fa/&e &tate+ent& for the p'rpo&e of ,eceiving or inf/'encing any a'thority or officer -ection (+ states that any person who !akes a false state!ent or representation6 knowing the sa!e to be false> to ecei4e any authority or officer in the e3ecution of the pro4isions of the ActD or with a 4iew to procuring the oing or the o!ission of anything in relation to this Act or any !atter thereun er6 is punishable by> i!prison!ent which !ay e3ten to one yearD or ii. A fineD or iii. both. !$5 Pena/ty for contravention of Section #$ A with re&pect to recor,& an,

vi,eo fi/+& -ection (+A -tates that a person who publishes a recor or a 4i eo fil! in contra4ention of -ection &2A (pertaining to particulars to be publishe on recor s or their containers or in 4i eo fil!s6 such as na!e an a ress of pro ucer an na!e an

61

ress of the owner of the copyright6 etc.) will be punishable by i!prison!ent

which !ay e3ten up to three years an fine. !65 Offence& (y Co+panie& -ection (, (1) states that when an offence un er the Act has been co!!itte by a co!pany6 the co!pany an e4ery person who was in charge of6 or was responsible to the co!pany for the con uct of its business will be ee!e to be guilty of the offence an is liable to be procee e against an punishe accor ingly. #he pro4iso to this section a itionally states that a person who pro4es that the offence was ue iligence to pre4ent the co!!itte without his knowle ge or that he e3ercise co!!ission of the offence will not be punishe . -ection (,(2) states that if an offence is co!!itte un er the Act by a co!pany an it is pro4e that the offence was co!!itte with the consent of or conni4ance of or can be attribute to the negligence of a irector6 !anager6 secretary or other officer of the co!pany6 the sai person will be hel guilty of the offence an is liable to be procee e against an punishe accor ingly. !:5 The ro/e of Centra/ Govern+ent enforce+ent #he central go4ern!ent@s role in enforce!ent is an a 4isory an coor inating one. #o this en a Copyright 5nforce!ent A 4isory Council has been set up in the )inistry of Fu!an .esource 'e4elop!ent6 which has !e!bers fro! 4arious state go4ern!ent6 senior 29 an '29 le4el police officers6 an representati4es fro! with the ifferent central go4ern!ent !inistries6 all of who! are concerne

enforce!ent of the pro4isions of copyright law in an official capacity in one way or the other. )oreo4er6 the Copyright 5nforce!ent A 4isory Council also has !e!bers fro! the in ustry an copyright societies like 2)2. #he whole purpose of the a 4isory council is for the !e!bers to interact with each other an rawing fro! their 4ast e3perience to fin out an plug any lacunae in thereby to enhance enforce!ent. -e4eral i eas the e3isting copyright laws6 an

!oote in the Council are > special courts for the trying of copyright offences6 a

62

special police for enforce!ent6 special cells in the police epart!ents an in the states6 etc.

I.5
C!A

COPYRIGHT SOCIETIES

Copyright &ocietie& in In,ia 2n 2n ia6 sections 33 to 3(A of the Copyright Act 1,&* regulate such copyright

societies. 1rior to co!ing into force of the Copyright (A!en !ent) Act 1,,$ sections 33 to 3( ealt with 1erfor!ing .ights -ocieties which carrie on the business of issuing or granting licenses of the perfor!ance in 2n ia of any work in which copyright subsiste . #he acti4ities of this society were li!ite to copyright subsisting in literary6 ra!atic an !usical work which can be perfor!e in public. #he 1,,$ A!en !ent e3ten e the operation of legal pro4isions in respect of all rights relating to all classes of work. C$A Regi&tration of the Copyright Society DSection 66E #o carry on the business of issuing or granting licences in respect of any work in which copyright subsists6 an association of persons has to get registere with the Central 9o4ern!ent. <or this purpose6 an application6 fulfilling the con itions prescribe un er the rules6 has to be !a e to the .egistrar of copyright who shall sub!it the application to the Central 9o4ern!ent. 0efore granting the registration6 the Central 9o4ern!ent shall take into consi eration the following factors> (i) (ii) (iii) the interest of the authors an other owners of rights un er the ActD the interest an con4enience of the publicD the interest of the group of persons who are !ost likely to seek licences in respect of the rele4ant rights6 an (i4) the ability an professional co!petence of the applications

On being satisfie 6 an association of persons !ay be registere sub;ect to such con itions as !ay be prescribe un er the rules. #he Central 9o4ern!ent6 howe4er6

63

shall not or inarily register !ore than one copyright society to o business in respect of the sa!e class of works. 2t is sub!itte that this pro4ision is protecti4e in nature as the e3istence of two or !ore societies in the sa!e fiel !ay fa e out or e4en wash out the a 4antages of collecti4e a !inistration of rights. 2n 2n ia6 so far only four such copyright societies ha4e been registere with the Central 9o4ern!ent ealing with ifferent classes of works. 1honographic 1erfor!ance %t . (11%) is the copyright society in respect of soun recor ings that is !ainly engage in a !inistering the broa casting6 telecasting an public perfor!ance rights on behalf of !usic co!panies which are its !e!bers. 2n ian 1erfor!ing .ights -ociety %i!ite (21.-) is the only national copyright society in the country6 which is per!itte to co!!ence an carry on the copyright business in !usical works an any wor s or any action inten e to be sung6 spoken or perfor!e with the !usic. -ociety for Copyright .egulation of 2n ian 1ro ucers of <il!s an #ele4isions (-C.21#) eals with the copyright in cine!atograph fil!s an tele4isions. 2f a copyright society is !anage in a !anner etri!ental to the interest of the owners of the rights concerne the Central 9o4ern!ent6 after hol ing an en=uiry6 !ay cancel its registration. #he Central 9o4ern!ent !ay also suspen the registration of a society pen ing en=uiry for a perio not e3cee ing one year uring which perio it !ay appoint an a !inistrator to ischarge the functions of the society. )oreo4er6 the owner of rights is free to with raw his authori7ation by gi4ing a (/ ays notice in case the copyright society fails to fulfill its co!!it!ents un er the agree!ent. 2t is noteworthy that in spite of liaison with the copyright societies6 the owner of copyright shall6 in his in i4i ual capacity6 continue to ha4e the right to grant licences

64

in respect of his own works consistent with his obligations as a !e!ber of the registere copyright society.

C6A A,+ini&tration of right& of owner (y the copyright &ociety A copyright society !ay6 sub;ect to certain prescribe con itions6 accept fro! an owner of rights e3clusi4e authori7ation to a !inister any right in any work by issue of licences or collection of licence fees or both. #hus6 the Act gi4es the choice to the right owners to authorise the copyright society for either full collecti4e a !inistration or partial collecti4e a !inistration. <ull collecti4e a !inistration is base on e3clusi4e rights an inclu es negotiations of re!unerations to be pai for6 an other con itions of6 uses6 authori7ations for uses6 !onitoring of uses6 enforce!ent of rights an collection of re!uneration an its istribution to right owners. 1artial collecti4e a !inistration of e3clusi4e rights is also possible (e.g.6 the owners of rights !ay gi4e authori7ation irectly6 an a collecti4e a !inistration organi7ation !ay collect an istribute re!uneration). After obtaining the authori7ation6 the copyright society6 sub;ect to certain prescribe con itions6 !ay> 1. issue licences un er section 3/ (power of the owner to issue licences) in respect of any rights un er this ActD 2. collect fees in pursuance of such licencesD 3. istribute such fees a!ong owners of rights after !aking e uctions for its own e3pensesD $. perfor! any other functions consistent with the pro4isions of section 3& (control o4er the society by the owner of rights). #he copyright society shall fra!e a sche!e of tariff to be calle the A#ariff

-che!eB setting out the nature an =uantu! of fees or royalties which it proposes to collect in respect of such copyright or other rights a !inistere by it. #he society also
65

has to fra!e a sche!e setting out the proce ure for collection an

istribution of the

fees an royalties specifie in the #ariff -che!e6 a!ong the owners of copyright. Any istribution un er the 'istribution -che!e shall6 as far as possible6 be in proportion to the inco!e of the copyright society fro! actual use of the work or works of each owner of rights. #hese societies (an their co!!ercial counterparts) generally utili7e two

istinct types of licences> blanket licences an specific licences. E0lanket licences@ authorise copyright users to use6 for a specific perio of ti!e6 all works for which the licencing bo y is responsible. -uch a licence !ight for e3a!ple pro4i e a broa caster with a single annual authori7ation enco!passing !any thousan s of songs owne by thousan s of co!posers6 lyricists an publishers. E-pecific licences@ L so!eti!es characteri7e an for a specific ti!e. #he copyright society shall6 sub;ect to the prescribe rules6 fra!e a sche!e for eter!ining the =uantu! of re!uneration payable to in i4i ual copyright owners ha4ing regar to the nu!ber of copies of the work in circulation. -uch sche!e6 howe4er6 shall restrict pay!ent to the owners of rights whose works ha4e attaine a le4el of circulation that the copyright society consi ers reasonable. #he copyright society is entitle to e uct a fee6 not e3cee ing fifteen percent of the total collection6 fro! the grant of licences on account of a !inistrati4e e3penses incurre by it. C:A Agree+ent (etween copyright &ociety an, &i+i/ar foreign &ociety #he Act e!powers the copyright society to enter into agree!ent with any foreign society or organi7ation a !inistering si!ilar rights6 to entrust to such foreign society or organi7ation the a !inistration in any foreign country of rights a !inistere by that copyright society in 2n ia or 4ice 4ersa. Fowe4er6 no such society or organi7ation shall per!it any iscri!ination in regar to the ter!s of licence or the istribution of fees collecte between rights in 2n ian an other works. C#A Contro/ over the copyright &ociety as transactional licences or

in i4i ual licences L eal with particular uses of a specific work in a particular conte3t

66

#he copyright societies are sub;ect to twofol controlK one by the owner of rights an secon by the Central 9o4ern!ent. #he owners of rights ha4e collecti4e control o4er the copyright society6 which a !inisters their rights. #he copyright society6 in such !anner as !ay be prescribe 6 has to> 1. obtain the appro4al of such owners of rights for its proce ures of collection an istribution of feesD 2. obtain their appro4al for the utili7ation of any a!ounts collecte as fees for any purpose other than istribution to the owner of rightsD an 3. pro4i e to such owners regular6 full an etaile infor!ation concerning all its

acti4ities6 in relation to the a !inistration of their rights. 54ery copyright society also has to sub!it to the .egistrar of Copyrights such returns as !ay be prescribe . #he copyright society shoul istribute all fees a!ong the right owners in proportion to the actual use of their works. Any officer uly authorise by the Central 9o4ern!ent in this behalf !ay call for any report an also call for any recor s of any copyright society for the purpose of satisfying hi!self that the fees collecte by the society in respect of rights a !inistere by it are being utili7e or istribute in accor ance with the pro4isions of this Act. 54ery copyright society !ust !aintain proper accounts an other rele4ant recor s an prepare an annual state!ent of accounts in such for! an in such !anner as !ay be prescribe by the Central 9o4ern!ent in consultation with the Co!ptroller an Au itor 9eneral of 2n ia.

67

.5
C!A

INTERNATIONAL CON*ENTIONS

4erne Convention for the Protection of Literary an, Arti&tic Wor%& C!<<;A #he Con4ention rests on three basic principles an contains a series of pro4isions

eter!ining the !ini!u! protection to be grante 6 as well as special pro4isions a4ailable to e4eloping countries which want to !ake use of the!. (1) #he three basic principles are the following> (a) (ri ciple o' 9 atio al treatme t: Works originating in one of the contracting -tates !ust be gi4en the sa!e protection in each of the other contracting -tates as the latter grants to the works of its own nationals. (b) (ri ciple o' 9automatic: protectio -uch protection !ust not be con itional upon co!pliance with any for!ality. (c) (ri ciple o' the 9i depe de ce: o' protectio -uch protection is in epen ent of the e3istence of protection in the country of origin of the work. 2f howe4er6 a contracting -tate pro4i es for a longer ter! than the !ini!u! prescribe by the Con4ention an the work ceases to be protecte in the country of origin6 protection !ay be enie once protection in the country of origin ceases. (2) #he !ini!u! stan ar s of protection relate to the works an rights to be protecte 6 an the uration of the protection> (a) As to works6 the protection !ust inclu e Ae4ery pro uction in the literary6 scientific an artistic o!ain6 whate4er !ay be the !o e or for! of its e3pressionB (Article 2(1) of the Con4ention). (b) -ub;ect to certain per!itte rights of authori7ation> reser4ations6 li!itations or e3ceptions6 the

following are a!ong the rights which !ust be recogni7e as e3clusi4e

68

 the right to translate6 the right to !ake a aptations an arrange!ents of the work6 the right to perfor! in public ra!atic6 ra!aticK!usical an !usical works6 the right to recite in public literary works6 the right to co!!unicate to the public the perfor!ance of such works6 the right to broa cast(with the possibility of a contracting -tate to pro4i e for a !ere right to e=uitable re!uneration instea of a right to authori7ation)6 the right to !ake repro uctions in any !anner or for! (with the possibility of a contracting -tate to per!it6 in certain special cases6 repro uction without authori7ation pro4i e that the repro uction not conflict with the nor!al e3ploitation of the work an oes oes not

unreasonably pre;u ice the legiti!ate interests of the author6 an with the possibility of a contracting -tate to pro4i e6 in the case of soun recor ings of !usical works6 for a right to e=uitable re!uneration). the right to use the work as a basis for an au io4isual work6 an the right to repro uce6 istribute6 perfor! in public or co!!unicate to the public that au io4isual work. #he Con4ention also pro4i es for A!oral rights6B that is6 the right to clai! authorship of the work an honor or reputation. (c) As to the uration of protection6 the general rule is that protection !ust be grante until the e3piration of the &/ th year after the author@s eath. #hese are6 howe4er6 e3ceptions to this general rule. 2n the case of anony!ous or pseu ony!ous works6 the ter! of protection e3pires &/ years after the work has been lawfully !a e a4ailable to the public6 e3cept if the pseu ony!
69

the right to ob;ect to any !o ification of6 or other

erogatory action in relation to6 the work which woul be pre;u icial to the author@s

lea4es no oubt as to the author@s i entity or if the author iscloses his i entity uring that perio D in the latter case6 the general rule applies. 2n the case of au io4isual (cine!atographic) works6 the !ini!u! ter! of protection is &/ years after the !aking a4ailable of the work to the public (AreleaseB) or L failing such an e4entLfro! the creation of the work. 2n the case of works of applie art an photographic works6 the !ini!u! ter! is 2& years fro! the creation of such a work.

(3) Countries regar e as e4eloping countries in confor!ity with the establishe practice of the 9eneral Asse!bly of the :nite Iations !ay6 for certain works an un er certain con itions6 epart fro! these !ini!u! stan ar s of protection with regar to right of translation an the right of repro uction.

C$A

Geneva Convention for the Protection of Pro,'cer& of Phonogra+& again&t 3na'thori@e, -'p/ication of their Phonogra+& C!"1!A
#he Con4ention pro4i es for the obligation of each contracting -tate to protect

a pro ucer of phonogra!s who is a national of another contracting -tate against the !aking of uplicates without the consent of the pro ucer6 against the i!portation of such uplicates6 where the !aking or i!portation is for the purposes of istribution to the public6 an against the istribution of such uplicates to the public. A1honogra!B !eans an e3clusi4ely aural fi3ation (that is6 it oes not co!prise6 for e3a!ple6 the soun tracks of fil!s or 4i eocassettes)6 whate4er be its for! ( isc6 tape or other). 1rotection !ay be pro4i e as a !atter of copyright law6 sui "e eris (relate rights) law6 unfair co!petition law or penal law. 1rotection !ust last for at least 2/ years fro! the first fi3ation or the first publication of the phonogra!. (Fowe4er6 national laws e4er !ore fre=uently pro4i e for a &/Kyear ter! of protection). C6A Ro+e Convention for the Protection of Perfor+er& Phonogra+& an, 4roa,ca&ting Organi&ation& C!";!A #he Con4ention secures protection in perfor!ances of perfor!ers6 phonogra!s of pro ucers of phonogra!s an broa casts of broa casting organi7ations. Pro,'cer& of

70

(1) 1erfor!ers (actors6 singers6 !usicians6 ancers an other persons who perfor! literary or artistic works) are protecte against certain acts they ha4e not consente to. -uch acts are> the broa casting an the co!!unication to the public of their li4e perfor!anceD the fi3ation of their li4e perfor!anceD the repro uction of such a fi3ation if the original fi3ation was !a e without their consent or if the repro uction is !a e for purposes ifferent fro! those for which they ga4e their consent. (2) 1ro ucers of phonogra!s en;oy the right to authori7e or prohibit the irect or in irect repro uction of their phonogra!s. 1honogra!s are efine in the .o!e Con4ention as !eaning any e3clusi4ely aural fi3ation of soun s of a perfor!ance or of other soun s. When a phonogra! is publishe for co!!ercial purposes gi4es rise to secon ary uses (such as broa casting or co!!unication to the public in any for!)6 a single e=uitable re!uneration !ust be pai by the user to the perfor!ers6 or to the pro ucers of phonogra!s6 or to bothD contracting -tates are free6 howe4er6 not to apply this rule or to li!it its application. (3) 0roa casting organi7ations en;oy the right to authori7e or prohibit certain acts6 na!ely> the rebroa casting of their broa castsD the fi3ation of their broa castsD the repro uction of such fi3ationsD the co!!unication to the public of their tele4ision broa casts if such co!!unication is !a e in places accessible to the public against pay!ent of an entrance fee. #he .o!e Con4ention allows e3ceptions in national laws to the abo4e !entione rights as regar s pri4ate use6 use of short e3cerpts in connection with the reporting of current e4ents6 ephe!eral fi3ation by a broa casting organi7ation by !eans of its own facilities an for its own broa casts6 use solely for the purpose of teaching or scientific research an in any other casesQe3cept for co!pulsory licenses that woul be inco!patible with the 0erne Con4entionQwhere the artistic works. to the incorporation of his national law pro4i es e3ceptions to copyright in literary an <urther!ore6 once a perfor!er has consente

71

perfor!ance in a 4isual or au io4isual fi3ation6 the pro4isions on perfor!ers@ rights ha4e no further application. 1rotection !ust last at least until the en of a perio of 2/ years co!pute fro! the en of the year in which (a) the fi3ation was !a e6 for phonogra!s an for perfor!ances incorporate thereinD (b) the perfor!ance took place6 for perfor!ances not incorporate in phonogra!sD (c) the broa cast took place6 for broa casts. (Fowe4er6 national laws e4er !ore fre=uently pro4i e for a &/Kyear ter! of protection6 at least for phonogra!s an for perfor!ances.) C:A WIPO Copyright Treaty CWCTA C!"";A #he #reaty !entions two sub;ect !atters to be protecte by copyright6

(i) co!puter progra!s6 whate4er !ay be the !o e or for! of their e3pression6 an (ii) co!pilations of ata or other !aterial (A atabasesB)6 in any for!6 which by reason of the selection or arrange!ent of their contents constitute intellectual creations. (where a atabase oes not constitute such a creation6 it is outsi e the scope of this #reaty). As to the rights of authors6 the #reaty eals with threeD (i) the right of

istribution6 (ii) the right of rental6 an (iii) the right of co!!unication to the public. 5ach of the! is an e3clusi4e right6 sub;ect to certain li!itations an e3ceptions. Iot all of the li!itations or e3ceptions are !entione in the following> The right of ,i&tri('tion is the right to aurhori7e the !aking a4ailable to the public of the original an copies of a work through sale or other transfer of ownership. The right of renta/ is the right to authori7e co!!ercial rental to the public of the original an copies of three kin s of work> (i) co!puter progra!s (e3cept where the co!puter progra! itself is not the essential ob;ect of the rental)6 (ii) cine!atographic works (but only in cases where co!!ercial rental has le to wi esprea copying of such works !aterially i!pairing the e3clusi4e right of repro uction)6 an (iii) works e!bo ie in phonogra!s as eter!ine in the national law of the Contracting 1arties (e3cept for

72

countries that since April 1&6 1,,$6 ha4e in force a syste! of e=uitable re!uneration for such rental). C#A WIPO Perfor+ance& an, Phonogra+& Treaty CWPPTA C!"";A #he #reaty eals with intellectual property rights of two kin s of beneficiaries> (i) perfor!ers (actors6 singers6 !usicians6 etc.)6 an (ii) pro ucers of phonogra!s (the persons or legal entities who or which take the initiati4e an ha4e the responsibility for the fi3ation of the soun s). #hey are ealt with in the sa!e instru!ent because !ost of the rights grante by the #reaty to perfor!ers are rights connecte with their fi3e 6 purely aural perfor!ances (which are the sub;ect !atter of phonogra!s). As far as perfor!ers are concerne 6 the #reaty grants perfor!ers four kin s of econo!ic rights in their perfor!ances fi3e in phonogra!s (not in au io4isual fi3ations6 such as !otion pictures)> (i) the right of repro uction6 (ii) the right of istribution6 (iii) the right of rental6 an (i4) the right of !aking a4ailable. 5ach of the! is an e3clusi4e right6 sub;ect to certain li!itations an e3ceptions. Iot all of those li!itations an e3ceptions are !entione in the following> the right of repro uction is the right to authori7e repro uction of the phonogra! in any !anner or for!6 the right of istribution is the right to authori7e the !aking a4ailable to the public of the original an copies of the phonogra! through sale or other transfer of ownership6 the right of rental is the right to authori7e the co!!ercial rental to the public of the original an copies of the phonogra! as eter!ine in the national law of the Contracting 1arties (e3cept for countries that since April 1&6 1,,$6 ha4e in force a syste! of e=uitable re!uneration for such rental)6 the right of !aking a4ailable is the right to authori7e the !aking a4ailable to the public6 by wire or wireless !eans6 of any perfor!ance fi3e in a phonogra!6 in such a way that !e!bers of the public !ay access the fi3e perfor!ance fro! a place an at a ti!e in i4i ually chosen by the!. #his
73

irect or in irect

right co4ers6 in particular6 onK e!an 6 interacti4e !aking a4ailable through the 2nternet. #he #reaty grants three kin s of econo!ic rights to perfor!ers in respect of their unfi3e (li4e) perfor!ances> (i) the right of broa casting (e3cept in the case of rebroa casting)6 (ii) the right of co!!unication to the public (e3cept where the perfor!ance is a broa cast perfor!ance) 6 an (iii) the right of fi3ation. #he #reaty also grants perfor!ers !oral rights> the right to clai! to be i entifie as the perfor!er an the right to ob;ect to any istortion6 !utilation or other !o ification that woul be pre;u icial to the perfor!er@s reputation. As far as pro ucers of phonogra!s are concerne 6 the #reaty grants the! four kin s of rights (all econo!ic) in their phonogra!s> (i) the right of repro uction6 (ii) the right of istribution6 (iii) the right of rental an 6 (i4) the right of !aking a4ailable. 5ach of the! is an e3clusi4e right6 sub;ect to certain li!itations an e3ceptions. Iot all of those li!itations an e3ceptions are !entione in the following> the right of repro uction is the right to authori7e repro uction of the phonogra! in any !anner or for!6 the right of istribution is the right to authori7e the !aking a4ailable to the public of the original an copies of the phonogra! through sale or other transfer of ownership6 the right of rental is the right to authori7e the co!!ercial rental to the public of the original an copies of the phonogra! as eter!ine in the national law of the Contracting 1arties (e3cept for countries that since April 1&6 1,,$6 ha4e in force a syste! of e=uitable re!uneration for such rental)6 the right of !aking a4ailable is the right to authori7e the !aking a4ailable to the public6 by wire or wireless !eans6 of any perfor!ance fi3e in a phonogra!6 in such a way that !e!bers of the public !ay access the fi3e perfor!ance fro! a place an at a ti!e in i4i ually chosen by the!. #his right co4ers6 in particular6 onK e!an 6 interacti4e !aking a4ailable through the 2nternet.
74

irect or in irect

As far as both perfor!ers an phonogra! pro ucers are concerne 6 the #reaty obligesQsub;ect to 4arious e3ceptions an the rights specifically grante nationals (Anational treat!entB). <urther!ore6 the #reaty pro4i es that perfor!ers an pro ucers of phonogra!s en;oy the right to a single e=uitable re!uneration for the irect or in irect use of phonogra!s6 publishe for co!!ercial purposes6 for broa casting or for co!!unication to the public. Fowe4er6 any Contracting 1arty !ay restrict orQ pro4i e that it !akes a reser4ation to the #reatyQ eny this right. 2n the case an to the e3tent of a reser4ation by a Contracting 1arty6 the other Contracting 1arties are per!itte to eny6 vis--vis the reser4ing Contracting 1arty6 national treat!ent (AreciprocityB). #he ter! of protection !ust be at least &/ years. #he en;oy!ent an e3ercise of the rights pro4i e in the #reaty cannot be sub;ect to any for!ality. C;A Agree+ent on Tra,e Re/ate, A&pect& of Inte//ect'a/ Property Right& CTRIPS Agree+entA !"":5 #he pre #.21- era saw the worl i4i e into groups of nations6 following a li!itations !entione hereQeach Contracting 1arty to accor to nationals of the other Contracting 1arties with regar to in the #reaty the treat!ent it accor s to its own

wi e range of stan ar s in intellectual property rights. #hese 4ariations were ser4ing as i!pe i!ents for fascile international tra e in goo s an ser4ices especially in the area of legal iffusion of knowle ge #.21- trie to har!onise the! at a global le4el. #he #.21- Agree!ent is i4i e into 822 1arts. 1arts 2 is entitle A9eneral 1ro4isions an basic principlesB. 2t consists of eight Articles (Articles 1K+) which eter!ine how the basic principles of tra ing syste!s an other intellectual property agree!ents shoul be applie 4is a 4is #.21-. 1art 22 is entitle A-tan ar s concerning the a4ailability6 scope an use of 21.sB. 2t i4i es the 21 into se4en hea s an eter!ines the stan ar s to gi4e protection to each kin of 21. #his part is i4i e into eight sections which consist of

75

32 Articles (Articles ,K$/). 1art 222 is entitle A5nforce!ent of 21.sB. 2t consists of fi4e sections na!ely6 9eneral obligationsD Ci4il an a !inistrati4e proce ures an re!e iesD 1ro4isional !easuresD -pecial re=uire!ents relate to bor er !easuresD an Cri!inal proce ures. #his part consists of 21 Articles (Articles $1K(1). 5ach section is presente separately. 1art 28 of #.21- Agree!ent is entitle 6 AAc=uisition an !aintenance of 21.s an relate interKpartes proce uresB. 2t consists of only one Article (Article (2). 2t establishes principles that shoul ensure that for!alities an proce ures concerning the ac=uisition an !aintenance of 21.s e3isting in a )e!ber are reasonable an that final a !inistrati4e ecisions in a )e!ber are generally sub;ect to re4iew by a ;u icial or a =uasi ;u icial authority. 1art 8 of #.21- Agree!ent is entitle A'ispute 1re4ention an -ettle!entB. 2t consists of two Articles (Article (3 an ($). 2t pro4i es for transparency of laws an proce ure for settle!ent of isputes between !e!bers of W#O. 1art 82 entitle A#ransitional Arrange!entsB consists of three Articles

(Articles (&K(*). 2t eter!ines the ates by which )e!bers are oblige to apply the pro4isions of the #.21- Agree!ent. 2t also establishes the obligation of e4elope country )e!bers to pro4i e6 on re=uest an on !utually agree ter!s an con itions6 technical an financial cooperation in fa4our of e4eloping an least e4elope country )e!bers. 1art 822 entitle A2nstitutional Arrange!ents <inal 1ro4isions6B consists of si3 Articles (Articles (+K*3). #hey eal i ter alia6 with the task of the council for #.21-6 obligation on !e!ber states to cooperate to eli!inate international tra e in infringing goo s6 pro4ision for re4iew an a!en !ent of #.21- etc. #he #.21s Agree!ent further re=uires !e!bers to grant specific rights to perfor!ers6 phonogra! pro ucers6 an broa casting organi7ations. 2t !an ates the )e!bers to gi4e perfor!ers the right to co!!unicate their perfor!ances to the public or broa cast the! by wireless !eans6 to fi3 their unfi3e prohibit the perfor!ances6 an to repro uce fi3ations. 1honogra! pro ucers !ust recei4e the Aright to authori7e or irect or in irect repro uction of their phonogra!s.B 0roa casting
76

organi7ations !ust recei4e the right to fi3 an repro uce fi3ations of broa casts as well as to rebroa cast the! by wireless !eans an to co!!unicate tele4ision broa casts to the public. Fowe4er6 the Agree!ent allows !e!bers to pro4i e for con itions6 li!itations6 e3ceptions an reser4ations to the e3tent per!itte by the .o!e Con4ention. 21.s are now a !inistere both by the W21O an the W#O. 2n ia6 being a !e!ber of both the organi7ations6 na!ely6 W21O an W#O6 has to abi e by the international rules pro4i e by the!.

RECO))EN-E- REA-INGS A/%a Chaw/a6 Copyright an .elate .ights Iational an 2nternational 1erspecti4es6 )ac!illan 2n ia %i!ite 6 (2//*). #he Copyright Act61,&*. 1atent an #ra e!ark Cases. Annual -ur4ey of 2n ian %aw.

77