The first statute relating to copyright in India was enacted in 1914. It was closely modelled on the UK Copyright Act of 1911. The Act of 1914 was substantively amended and replaced by the Copyright Act of 1957, read with the Copyright Rules of 1958. The legislation that presently governs matters related to copyright in India is the Copyright Act of 1957 (The Act), read with the Copyright Rules of 1958, as amended by the Copyright (Amendment) Act, 2012 and the Copyright Rules, 2013
Table of Content
Duration of Protection
Digital Age and Protection
The preamble to the Act states that it is an Act to amend and consolidate the law relating to copyright. Section 16 of the Act specifically states that copyright is a statutory right and there is, therefore, no common law right in copyright. One cannot claim any copyright beyond the scope of the Act.
Need for Protection of Copyright
The protection of copyright in India serves to nurture and safeguard the interests of creators, promote cultural and economic development, adapt to technological advancements, fulfill international obligations, and ensure a fair balance between the rights of creators and the public interest.
The need for copyright protection in India is driven by several factors, reflecting both domestic interests and the imperatives of global integration. These factors include:
Promotion of Creativity and Innovation: Copyright provides a legal framework that encourages creativity and innovation by ensuring creators have the exclusive right to use, distribute, and benefit financially from their works. This incentive structure is crucial for the development of a vibrant cultural, educational, and technological landscape.
Economic Benefits: The protection of copyright contributes significantly to the economy by fostering growth in the creative industries, including literature, music, film, software, and art. These industries create jobs, generate revenue through exports, and attract investment.
Cultural Preservation and Development: Copyright protection helps in preserving and promoting India's rich cultural heritage by ensuring that creators and traditional custodians have control over the use of their cultural expressions. This includes traditional knowledge and cultural expressions that are a vital part of India's identity.
Adaptation to Digital Technology: With the advent of the internet and digital technologies, copyright protection has become increasingly important to address the challenges posed by piracy and unauthorized distribution of copyrighted materials. Digital technology makes it easier to copy, distribute, and access copyrighted materials without authorization, leading to significant financial losses for creators and industries.
Compliance with International Agreements: India is a signatory to several international treaties and agreements, such as the World Intellectual Property Organization Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), as well as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Adhering to these international norms requires India to maintain a robust copyright protection regime that aligns with global standards.
Encouragement of Foreign Investment: Strong copyright protection reassures foreign investors and creators that their intellectual property will be safeguarded in India. This is essential for attracting foreign investment and facilitating technological and cultural exchange with other countries.
Balancing Interests: Copyright law in India aims to balance the rights of creators with the public interest. It provides for exceptions and limitations, such as fair use, compulsory licensing, and provisions for physically challenged persons, ensuring that copyright protection does not hinder access to knowledge, education, and cultural participation.
Subject Matter of Protection
According to section 13(1 ) of the Act, protected works may be classified under the following three headings:
original literary, dramatic, musical and artistic works;
cinematograph films; and
sound recordings.
Literary Work: The definition under section 2(o) of the Act is an inclusive one, and it states that the term ' literary work' includes computer programs, tables and compilations, including computer databases. /6. Dramatic Work: The Act defines 'dramatic work' under section 2(h) to mean any piece for recitation, choreographic work or entertainment in a dumb show, the scenic arrangement or acting, the form of which is fixed in writing or otherwise, but does not include a ci nematograph fi lm. 17.
Musical Work: The term is defined in section 2(p) of the Act to mean a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. Musical works and sound recordings embodying the music are separate subjects entitled to independent copyright.
Artistic Work: Section 2(c) defines 'artistic work' to mean any work of artistic craftsmanship, including painting, sculpture, drawing, engraving, photograph and a work of architecture, whether or not such work possesses artistic quality. ln the case of a work of architecture, copyright subsists only in the artistic character and design and does not extend to the processes and methods of construction.
Cinematograph Film: The term is defined in the Act, under section 2(f), to mean any work of visual recording on any medium, produced through a process from which moving images may be produced by any means and includes a sound recording accompanyi ng such visual recording. It is stated further that the term 'cinematograph' shall be construed as including any work produced by any process analogous to cinematography, including video films .
Sound Recording: Section 2(xx) defines the term to mean a recording of sounds from which such sounds may be produced, regardless of the medium on which such recording is made or the method by which the sounds are produced. The copyright in a sound recording is separate from that which rests in the subject matter of the recording, each of the two works being entitled to their own separate and independent copyright.
The conditions subject to which copyright is granted under section 13 are:
In the case of a published work, the work is first published in India, or where the work is first published outside India, the author is, at the date of publication, a citizen of India.
In the case of an unpublished work other than a work of architecture, the author is, at the date of making such work, a citizen of India or domiciled in India.
In the case of a work of architecture, if the work is located in India.
These conditions, however, do not apply to works that are covered by sections 40 and 41 of the Copyright Act, 1957. Section 40 deals with the powers of the Central Government to extend copyright to foreign works, and section 41 deals with special provisions made for works of certain international organisations.
In both these cases, the term of copyright shall not exceed the term of sixty years provided under this Act.
Meaning of ‘Original’
Under the Copyright Act, the term "original" has a specific legal interpretation that does not necessarily align with the everyday use of the word, implying novelty or uniqueness. Instead, in the context of copyright law, "original" focuses on the manner of expression of an idea rather than the novelty of the idea itself. Here’s a detailed explanation of what constitutes "originality" in this legal framework:
Expression Over Idea: The critical aspect of originality under copyright law is that the expression of the thought or idea must be original to the author. It is not required that the thought or idea itself be novel or unique. This distinction is important because copyright does not protect ideas, facts, or systems but rather the specific way in which these ideas are expressed.
Requirement of Authorship: For a work to be considered original, it must originate from the author, meaning there must be an element of creation or authorship involved. The work must not be copied from another work and should bear the imprint of the author's own skill, labor, judgment, and personality. This requirement ensures that the work reflects a degree of creativity attributable to the author.
Modicum of Creativity: The doctrine of "modicum of creativity" further clarifies the threshold for originality. This doctrine suggests that the work must display a minimal level of creativity to be eligible for copyright protection. The standard is not high; even slight variations that impart a new character or an individual touch to the work can suffice. The focus is on the creative choices made by the author in the arrangement, selection, or presentation of the subject matter.
No Copyright in Mere Words: An essential aspect of originality under copyright law is that mere words or short phrases, in and of themselves, are not protectable. Instead, copyright attaches to the creative expression or the way these words are arranged or presented, such as in a poem, novel, or song lyrics.
Originality in Compilations and Derivative Works: The concept of originality also extends to compilations and derivative works, where the originality lies in the effort, judgment, and selection involved in compiling, arranging, or transforming existing materials into something new. Even if the materials themselves are not new, the compilation or derivative work can be protected if the author has infused it with new expression or value through their creative labor.
Subject Matter of Protection
The subject matter of protection under the copyright law of India is centered around the protection of the original expression of ideas, rather than the ideas themselves, natural phenomena, historical events, or mere concepts. This legal principle ensures that copyright law safeguards the way an idea is expressed or materialized, rather than the abstract idea, concept, or fact. Here's an overview :
Form Over Idea: Copyright does not protect ideas, thoughts, concepts, natural or historical events in themselves. It is the original expression or material form—such as writing, pictures, plays, etc.—in which these ideas or events are depicted that is protected. This concept is underlined in Donoghue v. Allied Newspaper Ltd., which clarifies that copyright protection is granted only when an idea is put into a tangible form.
In Donoghue v. Allied Newspaper Ltd., it was held that
if the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not, until it is reduced into writing, or into some tangible form, that you get any right to copyright at all.
Original Expression: The law specifically protects the unique manner in which an author expresses ideas, acknowledging that the choice of words, arrangement, or structure to convey an idea in literary works is protected due to its originality. This is predicated on the understanding that no two individuals would express the same idea or describe an event in exactly the same words, highlighting the personal creativity involved.
Legal Assessment for Protection: The distinction between the idea and its expression, which determines copyright eligibility, is a matter of legal assessment. This requires an in-depth inquiry, as emphasized by the principles laid out in cases such as RC Anand v. Mis. Deluxfilms and Sanjay Gupta v. Sony Pictures Networks India Pvt Ltd, to ensure that copyright extends to the expression of an idea rather than the idea itself.
Exceptions and Exclusions: While natural phenomena, historical events, and ideas are considered common heritage and thus not copyrightable, the manner in which these are creatively depicted or presented can be protected. This distinction allows for factual recounting of events to remain in the public domain, while creative interpretations, like novels or screenplays, may qualify for copyright protection.
Judicial Pronouncements and Public Domain: According to the Supreme Court in Eastern Book Company v. D.B. Modak, judicial pronouncements, being already in the public domain, do not attract copyright. However, this does not extend to original literary works such as headnotes or editorial notes, which provide analysis or commentary on these pronouncements and are considered original works eligible for copyright under section 13(1)(a) of the Act.
Formal Requirement for Protection
In India, the Copyright Act specifies formal requirements for the protection of copyright only in certain categories of works, specifically sound recordings and cinematographic or video films. For other categories of works, there are no express formal requirements that need to be met for copyright protection. The formal requirements for these specific categories are as follows:
Sound Recordings:
The name and address of the person who made the sound recording must be mentioned both on the sound recording itself and on any container thereof.
The name and address of the owner of the copyright in the sound recording must be indicated.
The year of publication of the work must be clearly mentioned.
Cinematographic or Video Films:
The name and address of the copyright owner must be displayed in the film itself while it is being exhibited, as well as on the video cassette or other container of the film.
If the person who made the film is not the copyright owner, it is necessary for them to display, both in the film and on its cassette or container, that they have obtained the copyright owner's license or consent for making the video film.
For cinematograph films that require a certificate for exhibition under the provisions of the Cinematograph Act, 1952, the Copyright Act mandates that a copy of the certificate granted by the Board of Film Certification be displayed in the film during its exhibition and on its container.
This requirement is further reinforced by judicial decisions, such as in the case of South Indian Film Chamber of Commerce v. Entertaining Enterprises (1995) 2 SCC 462, which upheld the stipulation by certain states requiring video libraries to hold a letter of consent from the copyright holder.
These formalities are designed to clearly indicate the ownership and copyright details of the work, aiding in the prevention of copyright infringement and ensuring that copyright holders can effectively protect their rights. Additionally, these requirements highlight the law's attempt to address and mitigate issues related to piracy, acknowledging the financial losses caused by such activities to creators, copyright owners, and the government due to lost potential tax revenue.
Substantive Requirement of Protection
The substantive requirements for the protection of copyright in India emphasize the necessity of original creative effort. These requirements are centered on the premise that copyright protection is granted for the expression of ideas that result from the labor, skill, and capital expended by the creator on his/her work, rather than the ideas, thoughts, or basic elements themselves. The key principles can be outlined as follows:
Originality and Creative Effort: For a work to be eligible for copyright protection, it must be original and result from a significant amount of labor, skill, and investment by the creator. This means that the work must possess some distinctive quality or character not present in the basic material from which it was developed, setting it apart as a unique creation.
Transformation of Basic Material: The effort invested in creating the work should transform the basic material in a way that imparts to the product a new expression or form. This transformation is crucial for the work to be considered for copyright protection.
Subjective Assessment: The degree of knowledge, labor, judgment, literary skill, or aesthetic input required for a work to qualify for copyright protection is not rigidly defined. Instead, it is subject to a subjective assessment based on the specific circumstances of each case. The test for copyrightability involves evaluating whether the work reflects sufficient creativity and originality, stemming from the author's skill and effort.
The principle that copyright protection requires a substantive creative contribution by the author is supported by legal precedents, such as the case of Macmillan Company Ltd v. K. & J. Cooper (AIR 1924 PC 75). This case emphasizes that copyright is not about protecting the ideas or elements used in a work but about safeguarding the unique form or expression resulting from the author's personal effort.
Duration of Protection
The Act deals with the term of copyright for different categories of works that are granted protection, in sections 22- 29.
LITERARY, D RAMATIC, MUSICAL OR ARTISTIC WORK(section 22) : When a work is published within the lifetime of the author, copyright subsists during the lifetime of the author and until sixty years from the beginning of the calendar year next following the year in which the author dies. Where the work is of joint authorship, the sixty-year period will commence after the death of the author who dies last .
ANONYMOUS OR PSEUDOYMOUS WORKS(section 23): In the case of anonymous or pseudonymous works, the term of copyright is until sixty years from the begi nning of the calendar year next fol lowing the year in which the work is first published.
If the identity of the author is disclosed before the expiry of the said period, copyright subsists until sixty years from the beginning of the calendar year next following the year in which the author dies.
In the case of anonymous work of joint authorship where the identity of one of the authors is disclosed, the sixty-year period is to be counted as above after the death of that author. Where the identity of more than one author is disclosed, the sixty-year period wi ll start, as above, after the death of the author who dies last .
POSTHUMOUS WORK (section 24): In the case of literary, dramatic or musical works or engravings where copyright subsists at the date of death of the author who dies last and the work or an adaptation of which has not been published before that date, copyright will subsist until sixty years from the begi nning of the calendar year next fol lowing the year in which the work is first published.
Where an adaptation of the work is published in any earlier year, the sixty-year period will commence from the calendar year next fo llowing that year.
For the purpose of the above, a literary, dramatic or musical work or an adaptation of any such work is deemed to be published if it has been performed in public or if any sound recording made in respect of the work has been sold to the public or have been offered for sale to the public.
CINEMATOGRAPHIC FILM (section 26): Copyright subsists until sixty years from the beginning of the calendar year next following the year in which the film is published.
SOUND RECORDCNG (section 27): Copyright subsists until sixty years from the beginning of the calendar year next following the year in which the record is published .
GOVERNMENT WORK (section 28): Where the Government is the first owner of the copyright, copyright will subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published .
WORKS OF PUBLIC UNDERTAKING(Section 28A): Where a public undertaking is the first owner of the copyright in a work, copyright will subsist for sixty years from the year in which it is first published.
WORK OF INTERNATIONAL ORGANIZATIONS (section 29): Copyright subsists until sixty years from the calendar year next following the year in which the work is first published .
BROADCAST REPRODUCTIO RIGHTS (section 37(2)) : These rights subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. Although the broadcast reproduction rights will expire after twenty-five years from the year following the broadcast, the copyright in the script and music will continue to subsist until the term of copyright appropriate to them expires . PERFORMING RIGHTS (section 38(2)): The performing rights wil l subsist until fifty years from the beginning of the calendar year next fo llowing the year in which the performance is made .
Digital Age and Protection of Copyright
The Copyright Act in India has had to adapt to the challenges posed by technological advancements and the internet, which have dramatically changed how creative content is produced, distributed, and consumed. The digital age has made it easier for works to be copied, modified, and shared across the globe at the click of a button, raising significant concerns about the protection of intellectual property rights.
Under the Copyright Act in India, copyright protection extends to original works of authorship in various categories, including literary, dramatic, musical, and artistic works, as well as cinematographic films and sound recordings. The advent of the digital age necessitates a nuanced understanding of these categories, as digital creations often blur the lines between traditional forms of expression.
Key aspects of copyright in the digital age include:
Digital Rights Management (DRM): The Copyright Act allows for the use of technology to protect the rights of copyright owners. DRM technologies are used to control access to digital content, restrict copying, and manage rights in the digital environment.
Online Copyright Infringement: The Act recognizes the challenges posed by online piracy and provides mechanisms for copyright owners to address infringements occurring on the internet. This includes the ability to issue take-down notices to ISPs and websites hosting infringing content.
Fair Use and Exceptions: The digital age has highlighted the importance of fair use provisions and exceptions to copyright, which allow for the use of copyrighted material for purposes such as criticism, review, news reporting, teaching, and research, without the need for permission from or payment to the copyright owner. The Copyright Act includes provisions that balance the rights of copyright owners with the public's interest in accessing and using content for legitimate purposes.
Copyright and Digital Creations: The Act protects digital creations just as it does traditional works. However, the nature of digital content, including software, websites, and digital art, poses unique challenges for copyright law, which traditionally relies on tangible expressions of creativity.
References
Intellectual Property Law by Tamali Sen gupta
Novel Dimensions of Copyright Law by Edited by S. Sivakumar and Lisa P. Lukose
Law Of Copyright And Neighbouring Rights National And International Perspectives by V.K. Ahuja
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